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Duncans Industries Ltd Vs. State of U.P and others | not convey the title of the plant and machinery under the conveyance deed dated 9.6.1994. 11. Learned Counsel for the appellant has placed for our consideration a judgment of this Court in the case of Himalaya House Co. Ltd., Bombay v. The Chief Controlling Revenue Authority , 1972 (1) SCC 726 to contend that a mere reference to an earlier agreement does not amount to incorporation of the terms and conditions of an earlier transaction or the intention of the parties. We have carefully considered the said judgment and, in our opinion, that judgment does not in any manner lay down the law in absolute terms that a court cannot look into prior agreements while considering the intention of the parties for finding out what actually is the property that is conveyed under the deed under consideration. It is again based on facts of that case that this Court came to the conclusion therein that the so called terms and conditions which were found in an earlier agreement were not intended to be incorporated in the subsequent document. This is clear from the following observations of this Court appearing in Para 10 of the said judgment :- ?....From the language used in the Assignment Deed, it is not possible to come to the conclusion that the terms and conditions of the earlier transaction have been made a part of that Deed. Further barring one particular agreement, other agreements were not before the Court. Therefore, it is not possible to know what the terms and conditions of those agreements were. Before the terms and conditions of an agreement can be said to have been incorporated into another document, the same must clearly show that the parties thereto intended to incorporated them. No such intention is available in this case.? 12. Hence we are of the opinion that this judgment also does not help the appellant in his attempt to convince us that we should not take into consideration the recitals in the agreement dated 11.11.1993 while considering the conveyance deed of 9.6.1994. 13. For the reasons stated above, we are of the considered opinion that the vendor as per the conveyance deed dated 9.6.1994 has conveyed the title it had not only in regard to the land in question but also to the entire fertilizer business in ?as is where is? condition including the plant and machinery standing on the said land. Therefore, the authorities below were totally justified in taking into consideration the value of these plant and machineries along with the value of the land for the purpose of t he Act. 14. The next point to be considered is whether the High Court was justified in accepting the valuation made by the authorities in regard to the plant and machinery. Here we must note that in the judgment of the High Court, the learned Judge has noted as follows : ? In fact the finding on valuation of plant and machinery was not seriously challenged by Shri Shanti Bhushan during the course of argument and, in my opinion, rightly?. It is based on this approach of the learned Counsel appearing for the appel lant that the High Court did not go into the question of valuation. However, since the learned Counsel for the appellant did question the correctness of the valuation made by the authorities below, we have heard the argument addressed in this regard. We have also heard the arguments on behalf of the State on this score. 15. The question of valuation is basically a question of fact and this Court is normally reluctant to interfere with the finding on such a question of fact if it is based on relevant material on record. The main objection of the appellant is regard to the valuation arrived at by the authorities is that the Collector originally constituted an Enquiry Committee consisting of the Assistant Inspector General (Registration), General Manager, District Industries Centre, Sub-Registrar and the Tahsildar. After the report was submitted by the Sub-Committee for the reasons of its own, the Collector reconstituted the said Enquiry Committee by substituting Additional City Magistrate in place of Sub-Registrar. This substitution of the Enquiry Committee, according to the appellant, is without authority of law. We are unable to accept this contention, Constitution of an Enquiry Committee by the Collector is for the purpose of finding out the true market value of the property conveyed under the Deed. In this process, the Collector has every authority in law to take assistance from such source as is available, even if it amounts to constituting or reconstituting more than one Committee. That apart, the appellant has not been able to establish any prejudice that is caused to it by reconstitution of the Expert-Enquiry Committee. We have perused that part of the report of the Collector in which he has discussed in extenso the various materials that were available before the Committee and also the report of the valuers appointed for the purpose of finding out the value of the plant and machinery. These valuers are technical person who have while valuing the plant and machinery taken into consideration all aspects of valuation including the life of the plant and machinery. The valuations made both the Enquiry Committee as well as the valuers are mostly based on the documents produced by the appellant itself. Hence, we cannot accept the argument that the valuation accepted by the Collector and confirmed by the revision authority is either not based on any material or a finding arrived at arbitrarily. Once we are convinced that the method adopted by the authorities for the purpose of valuation is based on relevant materials then this Court will not interfere with such a finding of fact. That apart, as observed above, even the counsel for the appellant before the High Court did not seriously challenge the valuation and as emphasised by the High Court, right so. Therefore, we do not find any force in the last contention of the appellant also. | 0[ds]We have perused that part of the report of the Collector in which he has discussed in extenso the various materials that were available before the Committee and also the report of the valuers appointed for the purpose of finding out the value of the plant and machinery. These valuers are technical person who have while valuing the plant and machinery taken into consideration all aspects of valuation including the life of the plant and machinery. The valuations made both the Enquiry Committee as well as the valuers are mostly based on the documents produced by the appellant itself. Hence, we cannot accept the argument that the valuation accepted by the Collector and confirmed by the revision authority is either not based on any material or a finding arrived at arbitrarily. Once we are convinced that the method adopted by the authorities for the purpose of valuation is based on relevant materials then this Court will not interfere with such a finding of fact. That apart, as observed above, even the counsel for the appellant before the High Court did not seriously challenge the valuation and as emphasised by the High Court, right so. Therefore, we do not find any force in the last contention of the appellanthave carefully considered the said judgment and, in our opinion, that judgment does not in any manner lay down the law in absolute terms that a court cannot look into prior agreements while considering the intention of the parties for finding out what actually is the property that is conveyed under the deed under consideration. It is again based on facts of that case that this Court came to the conclusion therein that the so called terms and conditions which were found in an earlier agreement were not intended to be incorporated in the subsequent document. This is clear from the following observations of this Court appearing in Para 10 of the said judgmentthe language used in the Assignment Deed, it is not possible to come to the conclusion that the terms and conditions of the earlier transaction have been made a part of that Deed. Further barring one particular agreement, other agreements were not before the Court. Therefore, it is not possible to know what the terms and conditions of those agreements were. Before the terms and conditions of an agreement can be said to have been incorporated into another document, the same must clearly show that the parties thereto intended to incorporated them. No such intention is available in this case.Hence we are of the opinion that this judgment also does not help the appellant in his attempt to convince us that we should not take into consideration the recitals in the agreement dated 11.11.1993 while considering the conveyance deed of 9.6.1994.For the reasons stated above, we are of the considered opinion that the vendor as per the conveyance deed dated 9.6.1994 has conveyed the title it had not only in regard to the land in question but also to the entire fertilizer business in ?as is where is? condition including the plant and machinery standing on the said land. Therefore, the authorities below were totally justified in taking into consideration the value of these plant and machineries along with the value of the land for the purpose of t he Act. | 0 | 4,402 | 586 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
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not convey the title of the plant and machinery under the conveyance deed dated 9.6.1994. 11. Learned Counsel for the appellant has placed for our consideration a judgment of this Court in the case of Himalaya House Co. Ltd., Bombay v. The Chief Controlling Revenue Authority , 1972 (1) SCC 726 to contend that a mere reference to an earlier agreement does not amount to incorporation of the terms and conditions of an earlier transaction or the intention of the parties. We have carefully considered the said judgment and, in our opinion, that judgment does not in any manner lay down the law in absolute terms that a court cannot look into prior agreements while considering the intention of the parties for finding out what actually is the property that is conveyed under the deed under consideration. It is again based on facts of that case that this Court came to the conclusion therein that the so called terms and conditions which were found in an earlier agreement were not intended to be incorporated in the subsequent document. This is clear from the following observations of this Court appearing in Para 10 of the said judgment :- ?....From the language used in the Assignment Deed, it is not possible to come to the conclusion that the terms and conditions of the earlier transaction have been made a part of that Deed. Further barring one particular agreement, other agreements were not before the Court. Therefore, it is not possible to know what the terms and conditions of those agreements were. Before the terms and conditions of an agreement can be said to have been incorporated into another document, the same must clearly show that the parties thereto intended to incorporated them. No such intention is available in this case.? 12. Hence we are of the opinion that this judgment also does not help the appellant in his attempt to convince us that we should not take into consideration the recitals in the agreement dated 11.11.1993 while considering the conveyance deed of 9.6.1994. 13. For the reasons stated above, we are of the considered opinion that the vendor as per the conveyance deed dated 9.6.1994 has conveyed the title it had not only in regard to the land in question but also to the entire fertilizer business in ?as is where is? condition including the plant and machinery standing on the said land. Therefore, the authorities below were totally justified in taking into consideration the value of these plant and machineries along with the value of the land for the purpose of t he Act. 14. The next point to be considered is whether the High Court was justified in accepting the valuation made by the authorities in regard to the plant and machinery. Here we must note that in the judgment of the High Court, the learned Judge has noted as follows : ? In fact the finding on valuation of plant and machinery was not seriously challenged by Shri Shanti Bhushan during the course of argument and, in my opinion, rightly?. It is based on this approach of the learned Counsel appearing for the appel lant that the High Court did not go into the question of valuation. However, since the learned Counsel for the appellant did question the correctness of the valuation made by the authorities below, we have heard the argument addressed in this regard. We have also heard the arguments on behalf of the State on this score. 15. The question of valuation is basically a question of fact and this Court is normally reluctant to interfere with the finding on such a question of fact if it is based on relevant material on record. The main objection of the appellant is regard to the valuation arrived at by the authorities is that the Collector originally constituted an Enquiry Committee consisting of the Assistant Inspector General (Registration), General Manager, District Industries Centre, Sub-Registrar and the Tahsildar. After the report was submitted by the Sub-Committee for the reasons of its own, the Collector reconstituted the said Enquiry Committee by substituting Additional City Magistrate in place of Sub-Registrar. This substitution of the Enquiry Committee, according to the appellant, is without authority of law. We are unable to accept this contention, Constitution of an Enquiry Committee by the Collector is for the purpose of finding out the true market value of the property conveyed under the Deed. In this process, the Collector has every authority in law to take assistance from such source as is available, even if it amounts to constituting or reconstituting more than one Committee. That apart, the appellant has not been able to establish any prejudice that is caused to it by reconstitution of the Expert-Enquiry Committee. We have perused that part of the report of the Collector in which he has discussed in extenso the various materials that were available before the Committee and also the report of the valuers appointed for the purpose of finding out the value of the plant and machinery. These valuers are technical person who have while valuing the plant and machinery taken into consideration all aspects of valuation including the life of the plant and machinery. The valuations made both the Enquiry Committee as well as the valuers are mostly based on the documents produced by the appellant itself. Hence, we cannot accept the argument that the valuation accepted by the Collector and confirmed by the revision authority is either not based on any material or a finding arrived at arbitrarily. Once we are convinced that the method adopted by the authorities for the purpose of valuation is based on relevant materials then this Court will not interfere with such a finding of fact. That apart, as observed above, even the counsel for the appellant before the High Court did not seriously challenge the valuation and as emphasised by the High Court, right so. Therefore, we do not find any force in the last contention of the appellant also.
### Response:
0
### Explanation:
We have perused that part of the report of the Collector in which he has discussed in extenso the various materials that were available before the Committee and also the report of the valuers appointed for the purpose of finding out the value of the plant and machinery. These valuers are technical person who have while valuing the plant and machinery taken into consideration all aspects of valuation including the life of the plant and machinery. The valuations made both the Enquiry Committee as well as the valuers are mostly based on the documents produced by the appellant itself. Hence, we cannot accept the argument that the valuation accepted by the Collector and confirmed by the revision authority is either not based on any material or a finding arrived at arbitrarily. Once we are convinced that the method adopted by the authorities for the purpose of valuation is based on relevant materials then this Court will not interfere with such a finding of fact. That apart, as observed above, even the counsel for the appellant before the High Court did not seriously challenge the valuation and as emphasised by the High Court, right so. Therefore, we do not find any force in the last contention of the appellanthave carefully considered the said judgment and, in our opinion, that judgment does not in any manner lay down the law in absolute terms that a court cannot look into prior agreements while considering the intention of the parties for finding out what actually is the property that is conveyed under the deed under consideration. It is again based on facts of that case that this Court came to the conclusion therein that the so called terms and conditions which were found in an earlier agreement were not intended to be incorporated in the subsequent document. This is clear from the following observations of this Court appearing in Para 10 of the said judgmentthe language used in the Assignment Deed, it is not possible to come to the conclusion that the terms and conditions of the earlier transaction have been made a part of that Deed. Further barring one particular agreement, other agreements were not before the Court. Therefore, it is not possible to know what the terms and conditions of those agreements were. Before the terms and conditions of an agreement can be said to have been incorporated into another document, the same must clearly show that the parties thereto intended to incorporated them. No such intention is available in this case.Hence we are of the opinion that this judgment also does not help the appellant in his attempt to convince us that we should not take into consideration the recitals in the agreement dated 11.11.1993 while considering the conveyance deed of 9.6.1994.For the reasons stated above, we are of the considered opinion that the vendor as per the conveyance deed dated 9.6.1994 has conveyed the title it had not only in regard to the land in question but also to the entire fertilizer business in ?as is where is? condition including the plant and machinery standing on the said land. Therefore, the authorities below were totally justified in taking into consideration the value of these plant and machineries along with the value of the land for the purpose of t he Act.
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Ram Kumar Kashyap & Another Vs. Union of India & Another | Commission cannot be equated with that of a public servant and hence the case law pertaining to the suspension and removal of public employees has no relevance in the context of the proceedings under Article 317. 7. The relevant observations were made at Para 9: 9. The case of a government servant is, subject to the special provisions, governed by the law of master and servant, but the position in the case of a member of the commission is different. The latter holds a constitutional post and is government by the special provisions dealing with different aspects of his office as envisaged by the Articles 315 to 323 of Chapter II of Part XIV of the constitution. In our view the decisions dealing with service cases relied upon behalf of the respondent have no application to the present matter and the reference will have to answered on the merits of the case with reference to the complaint and the respondents deference. 8. Furthermore this court in Reference No. 1 of 2003, (2005) 6 SCC 789, has held that no hearing or opportunity of showing cause against the proposed reference under Article 317 (1) is necessary before making the actual reference. The relevant observations are as follows (Para. 2): 2. We have heard the learned Additional Solicitor General for the Union of India, as also the learned counsel for the respondent on the preliminary objections. We are of the opinion that no hearing or opportunity of showing cause against the proposed reference under Article 317(1) is necessary before making the reference. The first objection is overruled. 9. In Sayalee Sanjeev Joshi, In Re, (2007) 11 SCC 547, which concerned the removal of a member of the Maharashtra Public Service Commission under Article 317 on grounds of misbehaviour, this court had observed (Para. 1): 1. ... Since a request was made to the President of India to act in terms of Article 317(1) of the Constitution, the placing of the respondent under suspension under Article 317(2) of the Constitution was proper. 10. It is clear from the perusal of the above cases that the petitioners were not entitled to an opportunity to show cause or to be heard before the point of time that the orders of suspension were passed by the Honble Governor of Haryana under Article 317(2) after the President had referred the matter to the Supreme Court. The rationale behind empowering the Governor of a State to issue such an order for suspension even before the reference is actually decided by the Supreme Court is to maintain the public trust and confidence in the impartial and honest working of the said Public Service Commission. It is a prerogative given to the State Executive, but the members so suspended are given the opportunity to present their cases when the actual reference is decided upon by the Supreme Court. It is open to the members so suspended to present their point of view at that stage. After all, it is only after the merits of the case have been examined that the Supreme Court arrives at an answer to the reference and communicates the same decision to the President for further action. 11. The Public Service Commission is an institution of the utmost importance created by the Constitution of India under Article 315. For the efficient functioning of a democracy it is imperative that the Public Service Commissions are manned by people of the highest skill and irreproachable integrity, so that the selections to various public posts can be immunized from all sorts of extraneous factors like political pressure or personal favoritism and are made solely on considerations of merit. 12. In Special Reference No. 1 of 1997, (2000) 4 SCC 309, this Court discussed the role of the members of the Public Service Commissions and made the following observations with regard to their duties and qualifications (Para. 4): 4. Keeping in line with the high expectations of their office and need to observe absolute integrity and impartiality in the exercise of their powers and duties, the Chairman and members of the Public Service Commission are required to be selected on the basis of their merit, ability and suitability and they in turn are expected to be models themselves in their functioning. The character and conduct of the Chairman and members of the Commission, like Caesars wife, must therefore be above board. They occupy a unique place and position and utmost objectivity in the performance of their duties and integrity and detachment are essential requirements expected from the Chairman and members of the Public Service Commissions. 13. At Para 31 of the same opinion, this Court further stated: 31. The credibility of the institution of Public Service Commission is founded upon faith of the common man on its proper functioning. The faith would be eroded and confidence destroyed if it appears that the Chairman or the Members of the Commission act subjectively and not objectively or that their actions are suspect. Society expects honesty, integrity and complete objectivity from the Chairman and Members of the Commission. The Commission must act fairly, without any pressure or influence from any quarter, unbiased and impartially, so that the society does not loose confidence in the Commission. The high constitutional trustees, like the Chairman and Members of the Public Service Commission must for ever remain vigilant and conscious of these necessary adjuncts. 14. It is very clear that since the Public Service Commissions are a constitutional creation, the principles of service law that are ordinarily applicable in instances of dismissals of government employees cannot be extended to the proceedings for the removal and suspension of the members of the said Commissions. Hence, we are of the opinion that the en bloc suspension of the 8 Members and Chairman of the Haryana Public Service Commission by the Honble Governor of Haryana by an order dated 09.08.2008 under Article 317(2) of the Constitution and the impugned notification dated 09.08.2008 are valid and not liable to be quashed. | 0[ds]5. It is not necessary that principles of `audi alterem partem rigorously followed in the domain of service law need to be applied with the same degree of rigour in proceedings involving the removal and suspension of the members of the State Public Service Commission. This exceptional treatment is mandated by Article 317. Furthermore, the issuance of suspension orders is as per the `procedure established by law and not in derogation from the same10. It is clear from the perusal of the above cases that the petitioners were not entitled to an opportunity to show cause or to be heard before the point of time that the orders of suspension were passed by the Honble Governor of Haryana under Article 317(2) after the President had referred the matter to the Supreme Court. The rationale behind empowering the Governor of a State to issue such an order for suspension even before the reference is actually decided by the Supreme Court is to maintain the public trust and confidence in the impartial and honest working of the said Public Service Commission. It is a prerogative given to the State Executive, but the members so suspended are given the opportunity to present their cases when the actual reference is decided upon by the Supreme Court. It is open to the members so suspended to present their point of view at that stage. After all, it is only after the merits of the case have been examined that the Supreme Court arrives at an answer to the reference and communicates the same decision to the President for further action11. The Public Service Commission is an institution of the utmost importance created by the Constitution of India under Article 315. For the efficient functioning of a democracy it is imperative that the Public Service Commissions are manned by people of the highest skill and irreproachable integrity, so that the selections to various public posts can be immunized from all sorts of extraneous factors like political pressure or personal favoritism and are made solely on considerations of merit14. It is very clear that since the Public Service Commissions are a constitutional creation, the principles of service law that are ordinarily applicable in instances of dismissals of government employees cannot be extended to the proceedings for the removal and suspension of the members of the said Commissions. Hence, we are of the opinion that the en bloc suspension of the 8 Members and Chairman of the Haryana Public Service Commission by the Honble Governor of Haryana by an order dated 09.08.2008 under Article 317(2) of the Constitution and the impugned notification dated 09.08.2008 are valid and not liable to be quashed | 0 | 2,175 | 475 | ### 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:
Commission cannot be equated with that of a public servant and hence the case law pertaining to the suspension and removal of public employees has no relevance in the context of the proceedings under Article 317. 7. The relevant observations were made at Para 9: 9. The case of a government servant is, subject to the special provisions, governed by the law of master and servant, but the position in the case of a member of the commission is different. The latter holds a constitutional post and is government by the special provisions dealing with different aspects of his office as envisaged by the Articles 315 to 323 of Chapter II of Part XIV of the constitution. In our view the decisions dealing with service cases relied upon behalf of the respondent have no application to the present matter and the reference will have to answered on the merits of the case with reference to the complaint and the respondents deference. 8. Furthermore this court in Reference No. 1 of 2003, (2005) 6 SCC 789, has held that no hearing or opportunity of showing cause against the proposed reference under Article 317 (1) is necessary before making the actual reference. The relevant observations are as follows (Para. 2): 2. We have heard the learned Additional Solicitor General for the Union of India, as also the learned counsel for the respondent on the preliminary objections. We are of the opinion that no hearing or opportunity of showing cause against the proposed reference under Article 317(1) is necessary before making the reference. The first objection is overruled. 9. In Sayalee Sanjeev Joshi, In Re, (2007) 11 SCC 547, which concerned the removal of a member of the Maharashtra Public Service Commission under Article 317 on grounds of misbehaviour, this court had observed (Para. 1): 1. ... Since a request was made to the President of India to act in terms of Article 317(1) of the Constitution, the placing of the respondent under suspension under Article 317(2) of the Constitution was proper. 10. It is clear from the perusal of the above cases that the petitioners were not entitled to an opportunity to show cause or to be heard before the point of time that the orders of suspension were passed by the Honble Governor of Haryana under Article 317(2) after the President had referred the matter to the Supreme Court. The rationale behind empowering the Governor of a State to issue such an order for suspension even before the reference is actually decided by the Supreme Court is to maintain the public trust and confidence in the impartial and honest working of the said Public Service Commission. It is a prerogative given to the State Executive, but the members so suspended are given the opportunity to present their cases when the actual reference is decided upon by the Supreme Court. It is open to the members so suspended to present their point of view at that stage. After all, it is only after the merits of the case have been examined that the Supreme Court arrives at an answer to the reference and communicates the same decision to the President for further action. 11. The Public Service Commission is an institution of the utmost importance created by the Constitution of India under Article 315. For the efficient functioning of a democracy it is imperative that the Public Service Commissions are manned by people of the highest skill and irreproachable integrity, so that the selections to various public posts can be immunized from all sorts of extraneous factors like political pressure or personal favoritism and are made solely on considerations of merit. 12. In Special Reference No. 1 of 1997, (2000) 4 SCC 309, this Court discussed the role of the members of the Public Service Commissions and made the following observations with regard to their duties and qualifications (Para. 4): 4. Keeping in line with the high expectations of their office and need to observe absolute integrity and impartiality in the exercise of their powers and duties, the Chairman and members of the Public Service Commission are required to be selected on the basis of their merit, ability and suitability and they in turn are expected to be models themselves in their functioning. The character and conduct of the Chairman and members of the Commission, like Caesars wife, must therefore be above board. They occupy a unique place and position and utmost objectivity in the performance of their duties and integrity and detachment are essential requirements expected from the Chairman and members of the Public Service Commissions. 13. At Para 31 of the same opinion, this Court further stated: 31. The credibility of the institution of Public Service Commission is founded upon faith of the common man on its proper functioning. The faith would be eroded and confidence destroyed if it appears that the Chairman or the Members of the Commission act subjectively and not objectively or that their actions are suspect. Society expects honesty, integrity and complete objectivity from the Chairman and Members of the Commission. The Commission must act fairly, without any pressure or influence from any quarter, unbiased and impartially, so that the society does not loose confidence in the Commission. The high constitutional trustees, like the Chairman and Members of the Public Service Commission must for ever remain vigilant and conscious of these necessary adjuncts. 14. It is very clear that since the Public Service Commissions are a constitutional creation, the principles of service law that are ordinarily applicable in instances of dismissals of government employees cannot be extended to the proceedings for the removal and suspension of the members of the said Commissions. Hence, we are of the opinion that the en bloc suspension of the 8 Members and Chairman of the Haryana Public Service Commission by the Honble Governor of Haryana by an order dated 09.08.2008 under Article 317(2) of the Constitution and the impugned notification dated 09.08.2008 are valid and not liable to be quashed.
### Response:
0
### Explanation:
5. It is not necessary that principles of `audi alterem partem rigorously followed in the domain of service law need to be applied with the same degree of rigour in proceedings involving the removal and suspension of the members of the State Public Service Commission. This exceptional treatment is mandated by Article 317. Furthermore, the issuance of suspension orders is as per the `procedure established by law and not in derogation from the same10. It is clear from the perusal of the above cases that the petitioners were not entitled to an opportunity to show cause or to be heard before the point of time that the orders of suspension were passed by the Honble Governor of Haryana under Article 317(2) after the President had referred the matter to the Supreme Court. The rationale behind empowering the Governor of a State to issue such an order for suspension even before the reference is actually decided by the Supreme Court is to maintain the public trust and confidence in the impartial and honest working of the said Public Service Commission. It is a prerogative given to the State Executive, but the members so suspended are given the opportunity to present their cases when the actual reference is decided upon by the Supreme Court. It is open to the members so suspended to present their point of view at that stage. After all, it is only after the merits of the case have been examined that the Supreme Court arrives at an answer to the reference and communicates the same decision to the President for further action11. The Public Service Commission is an institution of the utmost importance created by the Constitution of India under Article 315. For the efficient functioning of a democracy it is imperative that the Public Service Commissions are manned by people of the highest skill and irreproachable integrity, so that the selections to various public posts can be immunized from all sorts of extraneous factors like political pressure or personal favoritism and are made solely on considerations of merit14. It is very clear that since the Public Service Commissions are a constitutional creation, the principles of service law that are ordinarily applicable in instances of dismissals of government employees cannot be extended to the proceedings for the removal and suspension of the members of the said Commissions. Hence, we are of the opinion that the en bloc suspension of the 8 Members and Chairman of the Haryana Public Service Commission by the Honble Governor of Haryana by an order dated 09.08.2008 under Article 317(2) of the Constitution and the impugned notification dated 09.08.2008 are valid and not liable to be quashed
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Karnani Properties Ltd Vs. State Of West Bengal And Ors | is not from mere letting out the properties to the tenants and that the tenants pay not only for mere occupation of the property but also for enjoyment of the various services which are rendered by the appellant to the tenants and to which services the tenants are entitled as a matter of right for the occupation of the premises (iv) The services which are rendered to the tenants and about which there does not appear to be any dispute are (a) elaborate arrangements for supply of water; (b) free supply of electricity; (c) washing and cleaning of floors and lavatories; (d) lift services; (e) electric repairs and replacing; and (f) sanitary repairs and replacing etc (v) For offering those services to the tenants, the appellant has employed a number of workmen and these services which undoubtedly confer material benefits on the tenants and constitute material services, are rendered by the employees (vi) The employees of the appellant company are engaged in their respective calling or employment to do their work in rendering the services (vii) Activity carried on by the appellant company is undoubtedly not casual and is distinctly systematic (viii) The work for which labour of workmen is required is clearly productive of the services to which the tenants are entitled and which also form a part of the consideration for the payments made by the tenants (ix) The appellant carries on its business with a view to profits and it makes profits and declares dividends out of the profits earned." 9. From the aforesaid findings recorded by the High Court, with which we find no reason to disagree, it is evident that the activity carried on by the appellant falls within the ambit of the expression "industry" defined in Section 2(j) of the Act as construed by this Court in Bangalore Water Supply and Sewerage Board case ( 1978 (2) SCC 213 : 1978 SCC(L&S) 215: 1978 (3) SCR 207 The award of the Industrial Tribunal cannot, therefore, be assailed on the basis that the appellant is not carrying on an industry under the Act.10. Shri. Nath has next contended that the Industrial Tribunal was not competent to make the award as the earlier award dated March 3, 1960, had not been validly terminated. He has urged that the earlier award was in the nature of a settlement under Section 2(p) of the Act and it could be terminated only in accordance with Section 19(2) of the Act. Shri. Nath has pointed out that for terminating a settlement under Section 19(2) a written notice is necessary whereas for termination of an award under Section 19(6) of the Act a written notice is not required and a notice is sufficient. 11. In our opinion this contention does not require consideration in view of the finding recorded by the learned Judges of Division Bench of the High Court that the letter dated November 24, 1966 was a notice under Section 19(6) as well as under Section 19(2) of the Act. It has been found that the said letter of the union which was addressed to the Labour Commissioner was sent to the appellant company and that in the said letter there is a clear intimation of the intention of the employees to terminate the award and from the letter of the appellant dated February 13, 1967 it appears that the appellant had become aware of the intention of the union to terminate the award and that the order of reference was made on July 29, 1967, long after the expiry of the period of two months. It is not the requirement of Section 19(2) of the Act that there should be a formal notice terminating a settlement and notice can be inferred from the correspondence between the parties (See : Indian Link Chain Manufacturers Ltd. v. Their Workmen ( 1971 (2) SCC 759 : 1972 (1) SCR 790 )). In the aforesaid facts and circumstances the High Court was justified in holding that the award dated March 3, 1960 had been validly terminated before the passing of the order of reference. 12. Shri. Nath has urged that there has been non-compliance of the provisions of Section 19(7) of the Act which lays down that no notice given under sub-section (2) or sub-section (6) shall have effect unless it is given by a party representing the majority of the persons bound by the settlement or award as the case may be. This question has been raised by the appellant for the first time in this Court. It involves an inquiry into questions of fact which cannot be made at this stage. The same, therefore, cannot be allowed to be agitated. 13. Shri. Nath has lastly urged that the Industrial Tribunal was in error in making the award in relation to dearness allowance without examining the capacity of the appellant to pay the additional amount and that the High Court should have remanded the matter to the Tribunal for considering this issue in the light of the documents which were submitted by the appellant before the High Court. We find no substance in this contention. The High Court has rightly held that in considering the finding arrived at by the Tribunal the High Court while exercising its jurisdiction under Article 226 of the Constitution should generally consider the materials which were made available to the Tribunal and fresh or further materials which were not before the Tribunal should not normally be allowed to be placed before the court. The appellant has not been able to show why the said documents were not produced before the Tribunal. It is not the case of the appellant that the Tribunal had precluded the appellant from producing these documents. In these circumstances we find no justification for accepting the plea of the learned counsel for the appellant for reconsideration of the award of the Tribunal in the light of the documents submitted by the appellant during the pendency of the appeal before the High Court. | 0[ds]11. In our opinion this contention does not require consideration in view of the finding recorded by the learned Judges of Division Bench of the High Court that the letter dated November 24, 1966 was a notice under Section 19(6) as well as under Section 19(2) of the Act. It has been found that the said letter of the union which was addressed to the Labour Commissioner was sent to the appellant company and that in the said letter there is a clear intimation of the intention of the employees to terminate the award and from the letter of the appellant dated February 13, 1967 it appears that the appellant had become aware of the intention of the union to terminate the award and that the order of reference was made on July 29, 1967, long after the expiry of the period of two months. It is not the requirement of Section 19(2) of the Act that there should be a formal notice terminating a settlement and notice can be inferred from the correspondence between the parties (See : Indian Link Chain Manufacturers Ltd. v. Their Workmen ( 1971 (2) SCC 759 : 1972 (1) SCR 790 )). In the aforesaid facts and circumstances the High Court was justified in holding that the award dated March 3, 1960 had been validly terminated before the passing of the order ofe find no substance in this contention. The High Court has rightly held that in considering the finding arrived at by the Tribunal the High Court while exercising its jurisdiction under Article 226 of the Constitution should generally consider the materials which were made available to the Tribunal and fresh or further materials which were not before the Tribunal should not normally be allowed to be placed before the court. The appellant has not been able to show why the said documents were not produced before the Tribunal. It is not the case of the appellant that the Tribunal had precluded the appellant from producing these documents. In these circumstances we find no justification for accepting the plea of the learned counsel for the appellant for reconsideration of the award of the Tribunal in the light of the documents submitted by the appellant during the pendency of the appeal before the High Court | 0 | 4,520 | 413 | ### 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:
is not from mere letting out the properties to the tenants and that the tenants pay not only for mere occupation of the property but also for enjoyment of the various services which are rendered by the appellant to the tenants and to which services the tenants are entitled as a matter of right for the occupation of the premises (iv) The services which are rendered to the tenants and about which there does not appear to be any dispute are (a) elaborate arrangements for supply of water; (b) free supply of electricity; (c) washing and cleaning of floors and lavatories; (d) lift services; (e) electric repairs and replacing; and (f) sanitary repairs and replacing etc (v) For offering those services to the tenants, the appellant has employed a number of workmen and these services which undoubtedly confer material benefits on the tenants and constitute material services, are rendered by the employees (vi) The employees of the appellant company are engaged in their respective calling or employment to do their work in rendering the services (vii) Activity carried on by the appellant company is undoubtedly not casual and is distinctly systematic (viii) The work for which labour of workmen is required is clearly productive of the services to which the tenants are entitled and which also form a part of the consideration for the payments made by the tenants (ix) The appellant carries on its business with a view to profits and it makes profits and declares dividends out of the profits earned." 9. From the aforesaid findings recorded by the High Court, with which we find no reason to disagree, it is evident that the activity carried on by the appellant falls within the ambit of the expression "industry" defined in Section 2(j) of the Act as construed by this Court in Bangalore Water Supply and Sewerage Board case ( 1978 (2) SCC 213 : 1978 SCC(L&S) 215: 1978 (3) SCR 207 The award of the Industrial Tribunal cannot, therefore, be assailed on the basis that the appellant is not carrying on an industry under the Act.10. Shri. Nath has next contended that the Industrial Tribunal was not competent to make the award as the earlier award dated March 3, 1960, had not been validly terminated. He has urged that the earlier award was in the nature of a settlement under Section 2(p) of the Act and it could be terminated only in accordance with Section 19(2) of the Act. Shri. Nath has pointed out that for terminating a settlement under Section 19(2) a written notice is necessary whereas for termination of an award under Section 19(6) of the Act a written notice is not required and a notice is sufficient. 11. In our opinion this contention does not require consideration in view of the finding recorded by the learned Judges of Division Bench of the High Court that the letter dated November 24, 1966 was a notice under Section 19(6) as well as under Section 19(2) of the Act. It has been found that the said letter of the union which was addressed to the Labour Commissioner was sent to the appellant company and that in the said letter there is a clear intimation of the intention of the employees to terminate the award and from the letter of the appellant dated February 13, 1967 it appears that the appellant had become aware of the intention of the union to terminate the award and that the order of reference was made on July 29, 1967, long after the expiry of the period of two months. It is not the requirement of Section 19(2) of the Act that there should be a formal notice terminating a settlement and notice can be inferred from the correspondence between the parties (See : Indian Link Chain Manufacturers Ltd. v. Their Workmen ( 1971 (2) SCC 759 : 1972 (1) SCR 790 )). In the aforesaid facts and circumstances the High Court was justified in holding that the award dated March 3, 1960 had been validly terminated before the passing of the order of reference. 12. Shri. Nath has urged that there has been non-compliance of the provisions of Section 19(7) of the Act which lays down that no notice given under sub-section (2) or sub-section (6) shall have effect unless it is given by a party representing the majority of the persons bound by the settlement or award as the case may be. This question has been raised by the appellant for the first time in this Court. It involves an inquiry into questions of fact which cannot be made at this stage. The same, therefore, cannot be allowed to be agitated. 13. Shri. Nath has lastly urged that the Industrial Tribunal was in error in making the award in relation to dearness allowance without examining the capacity of the appellant to pay the additional amount and that the High Court should have remanded the matter to the Tribunal for considering this issue in the light of the documents which were submitted by the appellant before the High Court. We find no substance in this contention. The High Court has rightly held that in considering the finding arrived at by the Tribunal the High Court while exercising its jurisdiction under Article 226 of the Constitution should generally consider the materials which were made available to the Tribunal and fresh or further materials which were not before the Tribunal should not normally be allowed to be placed before the court. The appellant has not been able to show why the said documents were not produced before the Tribunal. It is not the case of the appellant that the Tribunal had precluded the appellant from producing these documents. In these circumstances we find no justification for accepting the plea of the learned counsel for the appellant for reconsideration of the award of the Tribunal in the light of the documents submitted by the appellant during the pendency of the appeal before the High Court.
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11. In our opinion this contention does not require consideration in view of the finding recorded by the learned Judges of Division Bench of the High Court that the letter dated November 24, 1966 was a notice under Section 19(6) as well as under Section 19(2) of the Act. It has been found that the said letter of the union which was addressed to the Labour Commissioner was sent to the appellant company and that in the said letter there is a clear intimation of the intention of the employees to terminate the award and from the letter of the appellant dated February 13, 1967 it appears that the appellant had become aware of the intention of the union to terminate the award and that the order of reference was made on July 29, 1967, long after the expiry of the period of two months. It is not the requirement of Section 19(2) of the Act that there should be a formal notice terminating a settlement and notice can be inferred from the correspondence between the parties (See : Indian Link Chain Manufacturers Ltd. v. Their Workmen ( 1971 (2) SCC 759 : 1972 (1) SCR 790 )). In the aforesaid facts and circumstances the High Court was justified in holding that the award dated March 3, 1960 had been validly terminated before the passing of the order ofe find no substance in this contention. The High Court has rightly held that in considering the finding arrived at by the Tribunal the High Court while exercising its jurisdiction under Article 226 of the Constitution should generally consider the materials which were made available to the Tribunal and fresh or further materials which were not before the Tribunal should not normally be allowed to be placed before the court. The appellant has not been able to show why the said documents were not produced before the Tribunal. It is not the case of the appellant that the Tribunal had precluded the appellant from producing these documents. In these circumstances we find no justification for accepting the plea of the learned counsel for the appellant for reconsideration of the award of the Tribunal in the light of the documents submitted by the appellant during the pendency of the appeal before the High Court
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Hulas Rai Baij Nath Vs. Firm K. B. Bass & Co | evidence had been recorded, but no preliminary decree for rendition of accounts had yet been passed.The language of Order 23, Rule 1, sub-Rule (1), C. P. C., gives an unqualified right to a plaintiff to withdraw from a suit and if no permission to file a fresh suit is sought under sub-rule (2) of that Rule, the plaintiff becomes liable for such costs as the Court may award and becomes precluded from instituting any fresh suit in respect of that subject-matter under sub-Rule (3) of that Rule There is no provision in the Code of Civil Procedure which requires the Court to refuse permission to withdraw the suit in such circumstances and to compel the plaintiff to proceed with it. It is, of course, possible that different considerations may arise where a set-off may have been claimed under Order 8, C. P. C or a counter-claim may have been filed, if permissible by the procedural law applicable to the proceedings governing the suit.In the present case, the pleadings in paragraphs 8 and 11 of the written statement, mentioned above, clearly did not amount to a claim for set-off. Further, there could be no counter-claim, because no provision is shown under which a counter-claim could have been filed in the trial Court in such a suit. There is also the circumstance that the application for withdrawal was moved at a stage when no preliminary decree had been passed for rendition of accounts and, in fact the appellant was still contending that there could be no rendition of accounts in the suit because accounts had already been settled. Even in Para. 11, the only claim put forward was that, in case the Court found it necessary to direct rendition of accounts and any amount is found due to the appellant decree may be passed in favour of the appellant for that amount. In this paragraph also, the right claimed by the appellant was a contingent right which did not exist at the time when the written statement was filed. Even if it be assumed that the appellant could have claimed a decree for the amount found due to him after rendition of accounts no such right can possibly be held to exist before the Court passed a preliminary decree for rendition of accounts. It is to be noted that in the case of a suit between principal and agent, it is the principal alone who has normally the right to claim rendition of accounts from the agent. The agent cannot ordinarily claim a decree for rendition of accounts from the principal and, in fact, in the suit, the appellant, who was the agent of the respondent, did not claim any rendition of accounts from the respondent. In these circumstances, at the stage of withdrawal of the suit, no vested right in favour of the appellant had come into existence and there was no ground on which the Court could refuse to allow withdrawal of the suit. It is unnecessary for us to express any opinion as to whether a Court is bound to allow withdrawal of a suit to a plaintiff after some vested light may have accrued in the suit in favour of the defendant. On the facts of this case, it is clear that the right of the plaintiff to withdraw the suit was not at all affected by any vested right existing in favour of the appellant and, consequently, the order passed by the trial Court was perfectly justified.3. On behalf of the appellant, reliance was placed on the views expressed by a Division Bench of the Madras High Court in Seethai Achi v. Meyappa Chettiar, AIR 1934 Mad 337 , where the Court held:"Ordinarily, when the Court finds no impediment to the dismissal of a suit after the announcement of the withdrawal of the claim by the plaintiff, it will simply say that the suit is dismissed as the plaintiff has withdrawn from it. An order as to costs will also be passed. But several exceptions have been recognised to this general rule. In suits for partition, if a preliminary decree is passed declaring and defining the shares of the several parties, the suit will not be dismissed by reason of any subsequent withdrawal by the plaintiff, for the obvious reason that the rights declared in favour of the defendants under the preliminary decree would be rendered nugatory if the suit should simply be dismissed. So also in partnership suits and suits for accounts, where the defendants too may be entitled to some reliefs in their favour as a result of the settlement of accounts, the withdrawal of the suit by the plaintiff cannot end in the mere dismissal of the suit."We do not think, as urged by learned counse1, that the learned Judges of the Madras High Court were lying down the principle that, in a suit for accounts, a defendant is always entitled to relief in his favour and that the withdrawal of such a suit by the plaintiff cannot be permitted to terminate the suit. In the context in which that Court expressed its opinion about suits for accounts, it clearly intended to lay down that the dismissal of the suit on plaintiffs withdrawal is not to be necessarily permitted, if the defendant has become entitled to a relief in his favour. But such a right, if at all, can in no circumstances be held to accrue before a preliminary decree for rendition of accounts is passed. In fact, in mentioning suits for partition and suits for accounts, the Court was keeping in view the circumstance mentioned in the earlier sentence which envisaged that a preliminary decree had already been passed defining rights of parties.In any case, we do not think that any defendant in a suit for rendition of accounts can insist that the plaintiff must be compelled to proceed with the suit at such a stage as the one at which the respondent in the present case applied for withdrawal of the suit. | 0[ds]There is no provision in theCode of Civil Procedure which requires the Court to refuse permission to withdraw the suit in such circumstances and to compel the plaintiff to proceed with it. It is, of course, possible that different considerations may arise where a set-off may have been claimed under Order 8, C. P. C or a counter-claim may have been filed, if permissible by the procedural law applicable to the proceedings governing the suit.In the present case, the pleadings in paragraphs 8 and 11 of the written statement, mentioned above, clearly did not amount to a claim for set-off. Further, there could be no counter-claim, because no provision is shown under which a counter-claim could have been filed in the trial Court in such a suit. There is also the circumstance that the application for withdrawal was moved at a stage when no preliminary decree had been passed for rendition of accounts and, in fact the appellant was still contending that there could be no rendition of accounts in the suit because accounts had already been settled. Even in Para. 11, the only claim put forward was that, in case the Court found it necessary to direct rendition of accounts and any amount is found due to the appellant decree may be passed in favour of the appellant for that amount. In this paragraph also, the right claimed by the appellant was a contingent right which did not exist at the time when the written statement was filed. Even if it be assumed that the appellant could have claimed a decree for the amount found due to him after rendition of accounts no such right can possibly be held to exist before the Court passed a preliminary decree for rendition of accounts. It is to be noted that in the case of a suit between principal and agent, it is the principal alone who has normally the right to claim rendition of accounts from the agent. The agent cannot ordinarily claim a decree for rendition of accounts from the principal and, in fact, in the suit, the appellant, who was the agent of the respondent, did not claim any rendition of accounts from the respondent. In these circumstances, at the stage of withdrawal of the suit, no vested right in favour of the appellant had come into existence and there was no ground on which the Court could refuse to allow withdrawal of the suit. It is unnecessary for us to express any opinion as to whether a Court is bound to allow withdrawal of a suit to a plaintiff after some vested light may have accrued in the suit in favour of the defendant. On the facts of this case, it is clear that the right of the plaintiff to withdraw the suit was not at all affected by any vested right existing in favour of the appellant and, consequently, the order passed by the trial Court was perfectlydo not think, as urged by learned counse1, that the learned Judges of the Madras High Court were lying down the principle that, in a suit for accounts, a defendant is always entitled to relief in his favour and that the withdrawal of such a suit by the plaintiff cannot be permitted to terminate the suit. In the context in which that Court expressed its opinion about suits for accounts, it clearly intended to lay down that the dismissal of the suit on plaintiffs withdrawal is not to be necessarily permitted, if the defendant has become entitled to a relief in his favour. But such a right, if at all, can in no circumstances be held to accrue before a preliminary decree for rendition of accounts is passed. In fact, in mentioning suits for partition and suits for accounts, the Court was keeping in view the circumstance mentioned in the earlier sentence which envisaged that a preliminary decree had already been passed defining rights of parties.In any case, we do not think that any defendant in a suit for rendition of accounts can insist that the plaintiff must be compelled to proceed with the suit at such a stage as the one at which the respondent in the present case applied for withdrawal of thelanguage of Order 23, Rule 1,(1), C. P. C., gives an unqualified right to a plaintiff to withdraw from a suit and if no permission to file a fresh suit is sought under(2) of that Rule, the plaintiff becomes liable for such costs as the Court may award and becomes precluded from instituting any fresh suit in respect of thatle (3) of that RuleThere is no provision in theCode of Civil Procedure which requires the Court to refuse permission to withdraw the suit in such circumstances and to compel the plaintiff to proceed with it. It is, of course, possible that different considerations may arise where amay have been claimed under Order 8, C. P. C or amay have been filed, if permissible by the procedural law applicable to the proceedings governing thethe present case, the pleadings in paragraphs 8 and 11 of the written statement, mentioned above, clearly did not amount to a claim forFurther, there could be nobecause no provision is shown under which acould have been filed in the trial Court in such a suit. There is also the circumstance that the application for withdrawal was moved at a stage when no preliminary decree had been passed for rendition of accounts and, in fact the appellant was still contending that there could be no rendition of accounts in the suit because accounts had already been settled. Even in Para. 11, the only claim put forward was that, in case the Court found it necessary to direct rendition of accounts and any amount is found due to the appellant decree may be passed in favour of the appellant for that amount. In this paragraph also, the right claimed by the appellant was a contingent right which did not exist at the time when the written statement was filed. Even if it be assumed that the appellant could have claimed a decree for the amount found due to him after rendition of accounts no such right can possibly be held to exist before the Court passed a preliminary decree for rendition of accounts. It is to be noted that in the case of a suit between principal and agent, it is the principal alone who has normally the right to claim rendition of accounts from the agent. The agent cannot ordinarily claim a decree for rendition of accounts from the principal and, in fact, in the suit, the appellant, who was the agent of the respondent, did not claim any rendition of accounts from the respondent. In these circumstances, at the stage of withdrawal of the suit, no vested right in favour of the appellant had come into existence and there was no ground on which the Court could refuse to allow withdrawal of the suit. It is unnecessary for us to express any opinion as to whether a Court is bound to allow withdrawal of a suit to a plaintiff after some vested light may have accrued in the suit in favour of the defendant. On the facts of this case, it is clear that the right of the plaintiff to withdraw the suit was not at all affected by any vested right existing in favour of the appellant and, consequently, the order passed by the trial Court was perfectly | 0 | 1,870 | 1,350 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
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evidence had been recorded, but no preliminary decree for rendition of accounts had yet been passed.The language of Order 23, Rule 1, sub-Rule (1), C. P. C., gives an unqualified right to a plaintiff to withdraw from a suit and if no permission to file a fresh suit is sought under sub-rule (2) of that Rule, the plaintiff becomes liable for such costs as the Court may award and becomes precluded from instituting any fresh suit in respect of that subject-matter under sub-Rule (3) of that Rule There is no provision in the Code of Civil Procedure which requires the Court to refuse permission to withdraw the suit in such circumstances and to compel the plaintiff to proceed with it. It is, of course, possible that different considerations may arise where a set-off may have been claimed under Order 8, C. P. C or a counter-claim may have been filed, if permissible by the procedural law applicable to the proceedings governing the suit.In the present case, the pleadings in paragraphs 8 and 11 of the written statement, mentioned above, clearly did not amount to a claim for set-off. Further, there could be no counter-claim, because no provision is shown under which a counter-claim could have been filed in the trial Court in such a suit. There is also the circumstance that the application for withdrawal was moved at a stage when no preliminary decree had been passed for rendition of accounts and, in fact the appellant was still contending that there could be no rendition of accounts in the suit because accounts had already been settled. Even in Para. 11, the only claim put forward was that, in case the Court found it necessary to direct rendition of accounts and any amount is found due to the appellant decree may be passed in favour of the appellant for that amount. In this paragraph also, the right claimed by the appellant was a contingent right which did not exist at the time when the written statement was filed. Even if it be assumed that the appellant could have claimed a decree for the amount found due to him after rendition of accounts no such right can possibly be held to exist before the Court passed a preliminary decree for rendition of accounts. It is to be noted that in the case of a suit between principal and agent, it is the principal alone who has normally the right to claim rendition of accounts from the agent. The agent cannot ordinarily claim a decree for rendition of accounts from the principal and, in fact, in the suit, the appellant, who was the agent of the respondent, did not claim any rendition of accounts from the respondent. In these circumstances, at the stage of withdrawal of the suit, no vested right in favour of the appellant had come into existence and there was no ground on which the Court could refuse to allow withdrawal of the suit. It is unnecessary for us to express any opinion as to whether a Court is bound to allow withdrawal of a suit to a plaintiff after some vested light may have accrued in the suit in favour of the defendant. On the facts of this case, it is clear that the right of the plaintiff to withdraw the suit was not at all affected by any vested right existing in favour of the appellant and, consequently, the order passed by the trial Court was perfectly justified.3. On behalf of the appellant, reliance was placed on the views expressed by a Division Bench of the Madras High Court in Seethai Achi v. Meyappa Chettiar, AIR 1934 Mad 337 , where the Court held:"Ordinarily, when the Court finds no impediment to the dismissal of a suit after the announcement of the withdrawal of the claim by the plaintiff, it will simply say that the suit is dismissed as the plaintiff has withdrawn from it. An order as to costs will also be passed. But several exceptions have been recognised to this general rule. In suits for partition, if a preliminary decree is passed declaring and defining the shares of the several parties, the suit will not be dismissed by reason of any subsequent withdrawal by the plaintiff, for the obvious reason that the rights declared in favour of the defendants under the preliminary decree would be rendered nugatory if the suit should simply be dismissed. So also in partnership suits and suits for accounts, where the defendants too may be entitled to some reliefs in their favour as a result of the settlement of accounts, the withdrawal of the suit by the plaintiff cannot end in the mere dismissal of the suit."We do not think, as urged by learned counse1, that the learned Judges of the Madras High Court were lying down the principle that, in a suit for accounts, a defendant is always entitled to relief in his favour and that the withdrawal of such a suit by the plaintiff cannot be permitted to terminate the suit. In the context in which that Court expressed its opinion about suits for accounts, it clearly intended to lay down that the dismissal of the suit on plaintiffs withdrawal is not to be necessarily permitted, if the defendant has become entitled to a relief in his favour. But such a right, if at all, can in no circumstances be held to accrue before a preliminary decree for rendition of accounts is passed. In fact, in mentioning suits for partition and suits for accounts, the Court was keeping in view the circumstance mentioned in the earlier sentence which envisaged that a preliminary decree had already been passed defining rights of parties.In any case, we do not think that any defendant in a suit for rendition of accounts can insist that the plaintiff must be compelled to proceed with the suit at such a stage as the one at which the respondent in the present case applied for withdrawal of the suit.
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statement was filed. Even if it be assumed that the appellant could have claimed a decree for the amount found due to him after rendition of accounts no such right can possibly be held to exist before the Court passed a preliminary decree for rendition of accounts. It is to be noted that in the case of a suit between principal and agent, it is the principal alone who has normally the right to claim rendition of accounts from the agent. The agent cannot ordinarily claim a decree for rendition of accounts from the principal and, in fact, in the suit, the appellant, who was the agent of the respondent, did not claim any rendition of accounts from the respondent. In these circumstances, at the stage of withdrawal of the suit, no vested right in favour of the appellant had come into existence and there was no ground on which the Court could refuse to allow withdrawal of the suit. It is unnecessary for us to express any opinion as to whether a Court is bound to allow withdrawal of a suit to a plaintiff after some vested light may have accrued in the suit in favour of the defendant. On the facts of this case, it is clear that the right of the plaintiff to withdraw the suit was not at all affected by any vested right existing in favour of the appellant and, consequently, the order passed by the trial Court was perfectlydo not think, as urged by learned counse1, that the learned Judges of the Madras High Court were lying down the principle that, in a suit for accounts, a defendant is always entitled to relief in his favour and that the withdrawal of such a suit by the plaintiff cannot be permitted to terminate the suit. In the context in which that Court expressed its opinion about suits for accounts, it clearly intended to lay down that the dismissal of the suit on plaintiffs withdrawal is not to be necessarily permitted, if the defendant has become entitled to a relief in his favour. But such a right, if at all, can in no circumstances be held to accrue before a preliminary decree for rendition of accounts is passed. In fact, in mentioning suits for partition and suits for accounts, the Court was keeping in view the circumstance mentioned in the earlier sentence which envisaged that a preliminary decree had already been passed defining rights of parties.In any case, we do not think that any defendant in a suit for rendition of accounts can insist that the plaintiff must be compelled to proceed with the suit at such a stage as the one at which the respondent in the present case applied for withdrawal of thelanguage of Order 23, Rule 1,(1), C. P. C., gives an unqualified right to a plaintiff to withdraw from a suit and if no permission to file a fresh suit is sought under(2) of that Rule, the plaintiff becomes liable for such costs as the Court may award and becomes precluded from instituting any fresh suit in respect of thatle (3) of that RuleThere is no provision in theCode of Civil Procedure which requires the Court to refuse permission to withdraw the suit in such circumstances and to compel the plaintiff to proceed with it. It is, of course, possible that different considerations may arise where amay have been claimed under Order 8, C. P. C or amay have been filed, if permissible by the procedural law applicable to the proceedings governing thethe present case, the pleadings in paragraphs 8 and 11 of the written statement, mentioned above, clearly did not amount to a claim forFurther, there could be nobecause no provision is shown under which acould have been filed in the trial Court in such a suit. There is also the circumstance that the application for withdrawal was moved at a stage when no preliminary decree had been passed for rendition of accounts and, in fact the appellant was still contending that there could be no rendition of accounts in the suit because accounts had already been settled. Even in Para. 11, the only claim put forward was that, in case the Court found it necessary to direct rendition of accounts and any amount is found due to the appellant decree may be passed in favour of the appellant for that amount. In this paragraph also, the right claimed by the appellant was a contingent right which did not exist at the time when the written statement was filed. Even if it be assumed that the appellant could have claimed a decree for the amount found due to him after rendition of accounts no such right can possibly be held to exist before the Court passed a preliminary decree for rendition of accounts. It is to be noted that in the case of a suit between principal and agent, it is the principal alone who has normally the right to claim rendition of accounts from the agent. The agent cannot ordinarily claim a decree for rendition of accounts from the principal and, in fact, in the suit, the appellant, who was the agent of the respondent, did not claim any rendition of accounts from the respondent. In these circumstances, at the stage of withdrawal of the suit, no vested right in favour of the appellant had come into existence and there was no ground on which the Court could refuse to allow withdrawal of the suit. It is unnecessary for us to express any opinion as to whether a Court is bound to allow withdrawal of a suit to a plaintiff after some vested light may have accrued in the suit in favour of the defendant. On the facts of this case, it is clear that the right of the plaintiff to withdraw the suit was not at all affected by any vested right existing in favour of the appellant and, consequently, the order passed by the trial Court was perfectly
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Babu Baban Shinde Vs. State of Maharashtra | cheek. The injury of scilp was found to be six days old and according to the Medical Officer, it was possible to by scratch of nail. In this connection, it may further be noted that PW 9 Ajay Narmaprasad, who carried out the autopsy on the dead body Suman has stated in his evidence that contused abrasions over anterior part of neck overlying cartilage horizontally situated must have been caused by friction with a pressure and it was possible if a stick like Article 9 involved in this case was pressed on the neck of the deceased In the opinion of the doctor, the cause of death was asphyxia as a result of compression of neck associated with evidence of smothering. The medical evidence on record, therefore, proves that the deceased must have died because of the pressing of her neck and it would not bo unnatural to expect the victim to resist so as to avert an attack. It would, therefore be natural to expect that in an attempt to resist a struggle, the injury on the cheek of the accused must have been caused because of the nail of the deceased It cannot be expected even for a moment that deceased Suman must not have resisted. If that is so, she must have struggled to save her own life and in that attempt, it is not improbable that the accused would receive some injury on his face. It may also be noted further that this scratch injury on the face of the accused has been found to be six days old and it then corresponds to the date and time of the incident. As stated earlier, there is also no explanation on the part of the accused to explain the injuries on his person the circumstance of presence of unexplained injury on the person of the accused has also, in our opinion, provided a sufficient link to the chain of circumstances.( 16 ) IT is then alleged by the prosecution that after the incident the accused disappeared from the scene, concealed himself and avoided the arrest for about six days This is sufficiently proved by the evidence of PW 12 Shahaji Shrirangrao Salunke, the Investigating Officer together with the specific recitals of the arrest panchnama at Exhibit 20 The proved abscondency in the present case, in our opinion, is also one of the material circumstances so as to complete the chain of circumstances. The Additional sessions Judge has held the evidence of the prosecution in the shape of discovery of stick, Article 9 has not proved and we are also of opinion that the evidence in this connection is insufficient to inspire confidence However leaving aside this circumstantial piece of evidence in the shape of discover of an article in the instant case, all other circumstances as detailed above have been, in our opinion, satisfactorily established by the evidence on record it is, therefore, amply and satisfactorily proved by the prosecution that the relations between the deceased and the accused were strained because of the love affair of the accused with his keep and as such, he bad a requisite motive to remove his own wife from the scene of life and at the time of the incident it is only that he who was found in the company of his own wife and that too at an odd hour at night and immediately on the next day morning the dead body of Suman was found lying on the road. The circumstance as stated above has also been satisfactorily established that the accused had taken out his own wife Suman out of the rouse of her father on a false pretext of fetching her son Baras and instead of taking her to the house of China PW 4 he not only asked Changuna to return back but have been left in the company of his wife. As started above, there is no explanation on the part of the accused as to what happened thereafter to his wife who was found in company of the accused lastly prior to her death. All these proved material circumstances leave no hypothesis other than the guilt of the accused. ( 17 ) IT is then submitted on behalf of the appellant-accused that even though the circumstances are held to have been satisfactorily proved and established, there would only raise a grave suspicion and still the accused cannot be held guilty. Reliance is placed on a ruling of the Supreme court in Prakash Mahadeo Godse v. State of Maharashtra, 1969 (3) SCC 741 and it is the submitted that even though seven circumstances in the said case were found to have been established against the accused, still the Supreme Court ultimately found that a grave suspicion is only raised and it is not sufficient to hold the appellant guilty and as such, he was given a benefit of doubt. The fact involved in the said case and the facts in the case at hand are clearly distinguishable In the case before the Supreme Court, the accused was found in the company of the deceased at 5 p. m. and the dead body related to the deceased on the facts of the said case, it has, therefore been found at 5. 30 p. m. lastly, the finding of the dead body after three hours would not be sufficient to hold the appellant guilty. Coming to the facts of the case at hand, it may be reiterated that the appellant-accused is admittedly the husband of the deceased and he was found in her company at night on the date of the incident and that too on the outskirts of a small village and on the background of the requisite motive on his port to remove her from the scene of life so as to enjoy the illicit intimacy with his keep. It would be proper to hold that the circumstances are not capable of suggesting ant reasonable hypothesis other that the guilt of the appellant. | 0[ds]It is, therefore, necessary to ascertain from the evidence on record as to whether these various circumstances can be said to have been duly and sufficiently proved, and as to whether they are sufficient to sustain a conviction of theThis is required more in as much as there is no evidence of anin this case and the fate of the prosecution hangs merely on the circumstantial pieces of evidence. ( 9 ) IN the absence of any evidence of anit would not be merely academic to consider and find out as to whether the accused appellant had any motive or intention to kill his own wife. It need not be stated that the question of motive assumes rather academic interest when the prosecution desires to fasten the criminal liability on the basis of the evidence of an eyewitness. Therefore, before coming to the evidence on record so as to rind out as to whether the material circumstances have been proved or not, it would be proper and desirable to consider the evidence from the point of motive on the part of theto do away with his own wife. ( 10 ) IT is not disputed that deceased Suman was the wife of the appellant accused and the couple has been blessed with two sons viz. Dilip and Baras it is also not disputed that the deceased was staying with the accused and one son Baras at Ralegaon at the time of the incident in as much as the accused had shifted to that place to do the labour work. PW 2 Babu Kama is the father of the deceased and PW 5 Changuna is theof the brother of PW 2 Babu Nama. It is further undisputed that just prior to the incident, the deceased Suman had come to village Gosasi and had started living with her own father as there used to be quarrels between her and accus ed because of the illicit intimacy between the accused and PW 3 Kalabai In addition to these admitted facts, it may further be noted that PW 2 Babu nama, the complaint in the present case and the father of the deceased has stated on oath in his evidence at Exhibit 22 that during the marital tenure, the accused toSuman as he had kept a mistress viz. , PW 3 Kalabai. There is noon this point. Further, it may be noted that the prosecution has adduced the evidence of PW 3 Kalabai Padval at Exhibit 24 and she has affirmed about the illicit intimacy between her and the accused and she is emphatic in her evidence that deceased Suman used to quarrel with her in the house of the accused as she did not like the love affair of the accused. It is pertinent to note that the evidence of PW 3 Kaiabai remained unshattered inIt is, therefore, a proved fact in the case at hand that Accused No. 1 kept PW 3 Kalabai as his mistress and used to stay with her and with his wife Suman at Ralegaon prior to the incident. It would, therefore, be not improper to conclude that deceased Suman was admittedly an hindrance in the relationship between the accused and PW 3 Kaiabai and quarrels used to ensue between the two ladies and also between the accused and deceased Suman. It is most natural and believable when pw 2 Babu Nama deposes in his evidence that deceased Suman used to dislike this illicit intimacy between her husband and Kalabi and as such, she has started staying with him as there was no alternative for her. The admitted and proved facts on record, as discussed above, are, in our opinion, sufficient to conclude that themust be cherishing a desire to remove the obstacle of his wife Suman so as to enjoy freely the illicit intimacy with PW 3 kalabai. The case at hand, in our opinion, is therefore, placed with sufficient circumstances and evidence on record to hold that the accused must have a requisite motive and intention to remove his own wife Suman from his own life.( 11 ) KEEPING in view this, it would be necessary to proceed further with the evidence on record so as to find as to whether the material circumstances can be said to have been sufficiently proved by the prosecuting agency. PW 2 Babu Nama and PW 3 Kalabai have both deposed about the illicit intimacy between the accused and Kalabai and their staying together in one house along with deceased Suman just prior to the incident. PW 2 Babu Nama then further deposed that just prior to the incident, his daughter Suman had started staying with him because of this love affair of her husband and be then states on oath in respect of the incident in question. It is in his evidence that the accused reached his house at 11 00 p m. on the day of the incident when the accused asked the permission to take Suman with him so as to fetch the other son Baras from the house of Chima, Babu Nama himself refuted the idea and was not ready to send his daughter Suman in the company of the deceased alone. It is further in his evidence that he then asked the accused to bring PW 5 Changuna and then to take Suman with her to the home of Chima, According to his evidence, the accused accordinglyat the scene with PW 5 Changuna and thereafter the accused, his wife Suman and Changuna left the house of the complainant Babu Nama This evidence on oath of the complainant stands substantially corroborated by the sworn testimony of PW 5 Changuna. She stats in her evidence on oath that the accused asked her to accompany to the house of Chima and she, accordingly after awakening Suman from the sleep. left with the accused and Suman towards the house of Chama It is pertinent to note that the sworn testimony of both these witnesses remained unshaken inand nothing has been brought on record so as to disbelive the sworn testimony of these two witnesses. It is further to be noted that PW 5 Chaneura is a distant relation of the accused and there is nothing even to indicate as to why she should state falsely against the accused involving him in the present case. The evidence of PW 5 Changuna is straightforward one and does not suffer from any exaggeration. In view of anything on record to disbelieve the sworn testimony of these two witnesses, it will have to be held that the accused arrived at the house of hisBabu Nama and took away his own wife Suman in the company of PW 5 Changuna at about midnight on the day of the incident,( 12 ) IT is alleged by the prosecution that the accused took away his wife out of the house of her father on the pretext that they were to go to the house of Chima so as to bring their son Baras and probably, it is because of this that deceased Suman must have ultimately consented to go along with the accused. This pretext, however, turned out to be a false one as the accused did not take deceased Suman ultimately to the house of PW 4 Chima. It is to be noted in this connection that PW 4 Chima had adduced in his evidence at Exhibit 25 and has emphatically stated that during the night of the incident neither the accused nor his son had been to his house and the accused never can e to his house nor he had kept his son in his house. This evidence of the cousin brother of the accused has, also not been shattered infurther, it may be noted that PW 5 Changuna also states on oath that when three were proceeding towards the house of Chima, accused asked her to go back and she accordingly returned back to her vasti. It is, therefore, a proved fact that PW5 Changuna did not accompany the accused and Suman thereafter. In view of this evidence on second, which has remained unshaken, the Additional sessions Judge was justified in holding that the accused took his wife suman out of the house of her father on a false pretext to bring their son Baras from the house of Chima The circumstances further prove the accused and his wife Suman having been seen last together PW 5 Changuna is a small girl, aged about 15 years, and admittedly the accused is her uncle Nothing has been brought on record so as to disbelieve her sworn testimony. It would be really fatuous to say that PW 5 Changuna bad any grudge against her own uncle so as to depose falsely. It may also further be noted that nothing material has been elucidated in theof this witness and she has stood thethoroughly and boldly. The evidence of the girl is not only artless but unexaggerated and stated as a simple narration. It is sufficient to inspire confidence and in the absence of anything contrary on record to discard the sworn testimony, her evidence fating artless and natural is liable to be accepted. Further, the evidence of PW 5 Chima also finds sufficient corroboration from the evidence of PW 2 Babu Nama. The father of the deceased had stated that after the accused, his wife Suman and PW 5 Changuna left his wife at 11 p. m. he noticed the return of Changuna alone to the vasti and on making the enquiries with her, he came to know from her that the accused and Suman went in company of each other. It may be stated at this juncture that the dead body of Suman was found in the early morning of the next day on the road and it was just near the house of PW 4 Chima. The circumstance in respect of the last seen together evidence is not only sufficiently and cogently proved by the evidence on record but it would also adequately inspire the confidence. It, therefore, stands proved that the accused took deceased Suman at 11. 00 p. m. on the night of the incident from the house of her father on a false pretext of bringing their son Baras from the house of PW 4 Chima and the only third person in their company viz., PW 5 Changuna was also sent back by the accused and thereafter, it was only the accused and his wife who were in company of each other till the dead body of Suman was noticed on the road the next day morning. The evidence of both these witnesses has, therefore, been found sufficient enough to inspire the confidence and we do not find any infirmity in the reasoning of the trial Court in keeping reliance on the evidence of these two witnesses. ( 13 ) AT this juncture, the defence of the accused may be considered It is pertinent to note that the defence of the accused is one of a total denial and if the statement of the accused recorded under Section 313 of the Code of criminal Procedure is perused, he strikes up to one answer that everything is false. If the evidence on record is sufficient to prove the circumstance of last seen together and if it is duly proved by the prosecution that it is only the accused who was in the company of the deceased just prior to the incident, then, the failure on the part of the accused to offer any explanation would provide a supporting link to the chain of circumstances In this connection, a useful reference may be made to the observations made by the Supreme Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra, 1984 SCC 487. It has been observed by the Supreme Court thus:"it would be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier viz,, before a false explanation can be used as additional link, the following conditions must be satisfied(i) various links in the chain of evidence led by the prosecution had been satisfactorily proved, (ii) the said circumstance points to the guilt of the accused with reasonable definiteness, and (iii) the circumstance is in proximity with the time and situation". It has, therefore, been held that if those essential conditions are fulfilled, then, the absence of explanation on the part of the accused would provide an additional link to complete the chain of the circumstances. Coming to the facts of the case at hand, the evidence of PW 2 Babu Nama, PW 3 Kalabai, pw 4 Chima and PW 5 Changuna, sufficiently prove the chain of circumstances and all the material circumstances can be said to have been satisfactorily and duly proved by the evidence of the said witnesses. It is undisputed that the accused is the husband of the deceased and as stated above, there is sufficient and reliable evidence on record to prove the motive on the part of the accused to remove his wife Suman from the scene of life so as to continue with his illicit intimacy with PW 3 Kalabai. The circumstances are, therefore, in our opinion, sufficient to point out the guilt of the accused! it is in view of the evidence as discussed above that the question of failure on the part of the accused to offer an explanation that assumes importance. It was the accused only who was aware as to what had happened after Changuna PW 5 was sent back and he and his wife Suman proceeded further. If, therefore, there is no explanation on the part of the accused either in his statement under Section 313, Cr. P. C. or any indication to that effect in theof any of these witnesses, this would supply an additional link so as to complete the chain of circumstances.( 14 ) THERE are also other material circumstances on record which would corroborate the story of the prosecution. PW 12 Shahaji Shrirangrao Salunke, the Investigating Officer has said in his evidence that right fromthe search for apprehending the accused was on and he is emphatic that the police staff was sent to different places to search the accused but he was not traced. It is an admitted position that it is only onthat the accused came to be accosted and arrested under a panchnama, Exhibit 11. There is, therefore, unshaken evidence on record to prove the abscondency of the accused. It is not doubt true that no much importance can be attached to the circumstance of the abscondency of the accused but we are of the opinion that the abscondency in the present case assumes importance because of the following reasons. ( 15 ) IT is to be noted that when the accused came to be arrested, he was found to have sustained two injuries on his person. PW 7 Chandrakant dagadobai Gaikwad, a compounder working with one Dr. Surana noted the injuries on the person of the accused onPW 10 Hemant Dinkar satarkar has examined the accused onan has found abrasions on both arms and an old abrasions on the cheek. The injury of scilp was found to be six days old and according to the Medical Officer, it was possible to by scratch of nail. In this connection, it may further be noted that PW 9 Ajay Narmaprasad, who carried out the autopsy on the dead body Suman has stated in his evidence that contused abrasions over anterior part of neck overlying cartilage horizontally situated must have been caused by friction with a pressure and it was possible if a stick like Article 9 involved in this case was pressed on the neck of the deceased In the opinion of the doctor, the cause of death was asphyxia as a result of compression of neck associated with evidence of smothering. The medical evidence on record, therefore, proves that the deceased must have died because of the pressing of her neck and it would not bo unnatural to expect the victim to resist so as to avert an attack. It would, therefore be natural to expect that in an attempt to resist a struggle, the injury on the cheek of the accused must have been caused because of the nail of the deceased It cannot be expected even for a moment that deceased Suman must not have resisted. If that is so, she must have struggled to save her own life and in that attempt, it is not improbable that the accused would receive some injury on his face. It may also be noted further that this scratch injury on the face of the accused has been found to be six days old and it then corresponds to the date and time of the incident. As stated earlier, there is also no explanation on the part of the accused to explain the injuries on his person the circumstance of presence of unexplained injury on the person of the accused has also, in our opinion, provided a sufficient link to the chain of circumstances.( 16 ) IT is then alleged by the prosecution that after the incident the accused disappeared from the scene, concealed himself and avoided the arrest for about six days This is sufficiently proved by the evidence of PW 12 Shahaji Shrirangrao Salunke, the Investigating Officer together with the specific recitals of the arrest panchnama at Exhibit 20 The proved abscondency in the present case, in our opinion, is also one of the material circumstances so as to complete the chain of circumstances. The Additional sessions Judge has held the evidence of the prosecution in the shape of discovery of stick, Article 9 has not proved and we are also of opinion that the evidence in this connection is insufficient to inspire confidence However leaving aside this circumstantial piece of evidence in the shape of discover of an article in the instant case, all other circumstances as detailed above have been, in our opinion, satisfactorily established by the evidence on record it is, therefore, amply and satisfactorily proved by the prosecution that the relations between the deceased and the accused were strained because of the love affair of the accused with his keep and as such, he bad a requisite motive to remove his own wife from the scene of life and at the time of the incident it is only that he who was found in the company of his own wife and that too at an odd hour at night and immediately on the next day morning the dead body of Suman was found lying on the road. The circumstance as stated above has also been satisfactorily established that the accused had taken out his own wife Suman out of the rouse of her father on a false pretext of fetching her son Baras and instead of taking her to the house of China PW 4 he not only asked Changuna to return back but have been left in the company of his wife. As started above, there is no explanation on the part of the accused as to what happened thereafter to his wife who was found in company of the accused lastly prior to her death. All these proved material circumstances leave no hypothesis other than the guilt of the accused.fact involved in the said case and the facts in the case at hand are clearly distinguishable In the case before the Supreme Court, the accused was found in the company of the deceased at 5 p. m. and the dead body related to the deceased on the facts of the said case, it has, therefore been found at 5. 30 p. m. lastly, the finding of the dead body after three hours would not be sufficient to hold the appellant guilty. Coming to the facts of the case at hand, it may be reiterated that theis admittedly the husband of the deceased and he was found in her company at night on the date of the incident and that too on the outskirts of a small village and on the background of the requisite motive on his port to remove her from the scene of life so as to enjoy the illicit intimacy with his keep. It would be proper to hold that the circumstances are not capable of suggesting ant reasonable hypothesis other that the guilt of the appellant. | 0 | 5,671 | 3,644 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
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cheek. The injury of scilp was found to be six days old and according to the Medical Officer, it was possible to by scratch of nail. In this connection, it may further be noted that PW 9 Ajay Narmaprasad, who carried out the autopsy on the dead body Suman has stated in his evidence that contused abrasions over anterior part of neck overlying cartilage horizontally situated must have been caused by friction with a pressure and it was possible if a stick like Article 9 involved in this case was pressed on the neck of the deceased In the opinion of the doctor, the cause of death was asphyxia as a result of compression of neck associated with evidence of smothering. The medical evidence on record, therefore, proves that the deceased must have died because of the pressing of her neck and it would not bo unnatural to expect the victim to resist so as to avert an attack. It would, therefore be natural to expect that in an attempt to resist a struggle, the injury on the cheek of the accused must have been caused because of the nail of the deceased It cannot be expected even for a moment that deceased Suman must not have resisted. If that is so, she must have struggled to save her own life and in that attempt, it is not improbable that the accused would receive some injury on his face. It may also be noted further that this scratch injury on the face of the accused has been found to be six days old and it then corresponds to the date and time of the incident. As stated earlier, there is also no explanation on the part of the accused to explain the injuries on his person the circumstance of presence of unexplained injury on the person of the accused has also, in our opinion, provided a sufficient link to the chain of circumstances.( 16 ) IT is then alleged by the prosecution that after the incident the accused disappeared from the scene, concealed himself and avoided the arrest for about six days This is sufficiently proved by the evidence of PW 12 Shahaji Shrirangrao Salunke, the Investigating Officer together with the specific recitals of the arrest panchnama at Exhibit 20 The proved abscondency in the present case, in our opinion, is also one of the material circumstances so as to complete the chain of circumstances. The Additional sessions Judge has held the evidence of the prosecution in the shape of discovery of stick, Article 9 has not proved and we are also of opinion that the evidence in this connection is insufficient to inspire confidence However leaving aside this circumstantial piece of evidence in the shape of discover of an article in the instant case, all other circumstances as detailed above have been, in our opinion, satisfactorily established by the evidence on record it is, therefore, amply and satisfactorily proved by the prosecution that the relations between the deceased and the accused were strained because of the love affair of the accused with his keep and as such, he bad a requisite motive to remove his own wife from the scene of life and at the time of the incident it is only that he who was found in the company of his own wife and that too at an odd hour at night and immediately on the next day morning the dead body of Suman was found lying on the road. The circumstance as stated above has also been satisfactorily established that the accused had taken out his own wife Suman out of the rouse of her father on a false pretext of fetching her son Baras and instead of taking her to the house of China PW 4 he not only asked Changuna to return back but have been left in the company of his wife. As started above, there is no explanation on the part of the accused as to what happened thereafter to his wife who was found in company of the accused lastly prior to her death. All these proved material circumstances leave no hypothesis other than the guilt of the accused. ( 17 ) IT is then submitted on behalf of the appellant-accused that even though the circumstances are held to have been satisfactorily proved and established, there would only raise a grave suspicion and still the accused cannot be held guilty. Reliance is placed on a ruling of the Supreme court in Prakash Mahadeo Godse v. State of Maharashtra, 1969 (3) SCC 741 and it is the submitted that even though seven circumstances in the said case were found to have been established against the accused, still the Supreme Court ultimately found that a grave suspicion is only raised and it is not sufficient to hold the appellant guilty and as such, he was given a benefit of doubt. The fact involved in the said case and the facts in the case at hand are clearly distinguishable In the case before the Supreme Court, the accused was found in the company of the deceased at 5 p. m. and the dead body related to the deceased on the facts of the said case, it has, therefore been found at 5. 30 p. m. lastly, the finding of the dead body after three hours would not be sufficient to hold the appellant guilty. Coming to the facts of the case at hand, it may be reiterated that the appellant-accused is admittedly the husband of the deceased and he was found in her company at night on the date of the incident and that too on the outskirts of a small village and on the background of the requisite motive on his port to remove her from the scene of life so as to enjoy the illicit intimacy with his keep. It would be proper to hold that the circumstances are not capable of suggesting ant reasonable hypothesis other that the guilt of the appellant.
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therefore, unshaken evidence on record to prove the abscondency of the accused. It is not doubt true that no much importance can be attached to the circumstance of the abscondency of the accused but we are of the opinion that the abscondency in the present case assumes importance because of the following reasons. ( 15 ) IT is to be noted that when the accused came to be arrested, he was found to have sustained two injuries on his person. PW 7 Chandrakant dagadobai Gaikwad, a compounder working with one Dr. Surana noted the injuries on the person of the accused onPW 10 Hemant Dinkar satarkar has examined the accused onan has found abrasions on both arms and an old abrasions on the cheek. The injury of scilp was found to be six days old and according to the Medical Officer, it was possible to by scratch of nail. In this connection, it may further be noted that PW 9 Ajay Narmaprasad, who carried out the autopsy on the dead body Suman has stated in his evidence that contused abrasions over anterior part of neck overlying cartilage horizontally situated must have been caused by friction with a pressure and it was possible if a stick like Article 9 involved in this case was pressed on the neck of the deceased In the opinion of the doctor, the cause of death was asphyxia as a result of compression of neck associated with evidence of smothering. The medical evidence on record, therefore, proves that the deceased must have died because of the pressing of her neck and it would not bo unnatural to expect the victim to resist so as to avert an attack. It would, therefore be natural to expect that in an attempt to resist a struggle, the injury on the cheek of the accused must have been caused because of the nail of the deceased It cannot be expected even for a moment that deceased Suman must not have resisted. If that is so, she must have struggled to save her own life and in that attempt, it is not improbable that the accused would receive some injury on his face. It may also be noted further that this scratch injury on the face of the accused has been found to be six days old and it then corresponds to the date and time of the incident. As stated earlier, there is also no explanation on the part of the accused to explain the injuries on his person the circumstance of presence of unexplained injury on the person of the accused has also, in our opinion, provided a sufficient link to the chain of circumstances.( 16 ) IT is then alleged by the prosecution that after the incident the accused disappeared from the scene, concealed himself and avoided the arrest for about six days This is sufficiently proved by the evidence of PW 12 Shahaji Shrirangrao Salunke, the Investigating Officer together with the specific recitals of the arrest panchnama at Exhibit 20 The proved abscondency in the present case, in our opinion, is also one of the material circumstances so as to complete the chain of circumstances. The Additional sessions Judge has held the evidence of the prosecution in the shape of discovery of stick, Article 9 has not proved and we are also of opinion that the evidence in this connection is insufficient to inspire confidence However leaving aside this circumstantial piece of evidence in the shape of discover of an article in the instant case, all other circumstances as detailed above have been, in our opinion, satisfactorily established by the evidence on record it is, therefore, amply and satisfactorily proved by the prosecution that the relations between the deceased and the accused were strained because of the love affair of the accused with his keep and as such, he bad a requisite motive to remove his own wife from the scene of life and at the time of the incident it is only that he who was found in the company of his own wife and that too at an odd hour at night and immediately on the next day morning the dead body of Suman was found lying on the road. The circumstance as stated above has also been satisfactorily established that the accused had taken out his own wife Suman out of the rouse of her father on a false pretext of fetching her son Baras and instead of taking her to the house of China PW 4 he not only asked Changuna to return back but have been left in the company of his wife. As started above, there is no explanation on the part of the accused as to what happened thereafter to his wife who was found in company of the accused lastly prior to her death. All these proved material circumstances leave no hypothesis other than the guilt of the accused.fact involved in the said case and the facts in the case at hand are clearly distinguishable In the case before the Supreme Court, the accused was found in the company of the deceased at 5 p. m. and the dead body related to the deceased on the facts of the said case, it has, therefore been found at 5. 30 p. m. lastly, the finding of the dead body after three hours would not be sufficient to hold the appellant guilty. Coming to the facts of the case at hand, it may be reiterated that theis admittedly the husband of the deceased and he was found in her company at night on the date of the incident and that too on the outskirts of a small village and on the background of the requisite motive on his port to remove her from the scene of life so as to enjoy the illicit intimacy with his keep. It would be proper to hold that the circumstances are not capable of suggesting ant reasonable hypothesis other that the guilt of the appellant.
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State Of Mysore Vs. Syed Ibrahim | which a higher rate of duty was applicable under the said Schedule, duty at such higher rate would be chargeable in respect of the licence for the vehicle. The appellant In that case who carried on business as a greengrocer held a licence for a private motor car, duty having been paid thereon at the horse-power rate under para 6, Sch II of the Finance Act. 1920. The car was neither constructed not adapted for use for conveyance of goods but the appellant, while the licence was in force used the said car of "occasionally for conveyance of goods in the course of his trade. It was contended that his user was for a purpose which brought the car within a class to which higher rate of duty under para 5of Sch. II of Finance Act, 1920 became chargeable". The Court accepted the contention and held that the user was for a purpose which brought the car within para 5 Sch. II of the said Act and the appellant was rightly convicted. It was not in dispute that the can was used by the appellant only of occasionally for conveyance of goods in connection with his trade. Negativing the contention, that the car was not chargeable to higher duty as it was not adapted for carriage of goods Avory, J., observed that the section referred to cases where the vehicle, while the licence is in force, had been used in an altered condition or in a manner or for a purpose which brings it within, or which if it was used solely in that condition or in that manner or for that purpose would bring it within a class or description of vehicle to which a higher rate of duty is applicable". He added that to construe that section vie has only to see what was the purpose for which the car was being used which would bring it within the class to which a higher rate of duty was applicable. The purpose which brought it within para 5, as distinguished from para 6 of Sch II. was the purpose of conveyance of: goods. At page 421 of the Report it was further observed,"where a licence had been taken out and the vehicle was at any time, while that licence was in force, used (a) in an altered condition, (b) in a manner, or (c) for a purpose which brings it within or which if it was used solely in that condition or in that manner or for that purpose would bring it within a class or description of vehicle to which a higher rate of duty is app1icable, then duty at the higher rate, becomes chargeable". It is thus clear that what brought the motor vehicle under para 5, Sch. II was the purpose for which it was used. 7. Similarly in Public Prosecutor v. R. Rajagopalan AIR 1938 Mad 233 , the High Court of Madras held that though Rules .30 (a) of the Madras Motor Vehicles Rules was intended to apply to motor vehicles used for the express purpose of letting for hire, if a motor vehicle was used even once for such a purpose, then, on that one occasion it was nonetheless let for hire. Hence if a person undertakes to convey goods for reward in his private vehicle on one occasion without the necessary licence he would be regarded as having let his vehicle for hire and would commit an offence under that rule. It was contended in that case that the Legislature did not intend to compel an owner of a private vehicle, who ordinarily uses his vehicle for his own purposes to take out a licence merely because on one occasion he conveyed goods for hire in his private lorry. That contention was negatived on the ground that a motor vehicle even if used once for conveying goods for reward would nonetheless be regarded on that occasion as one let out for hire. In Re, Manager, Indian Express, AIR 1945 Mad 440 . a motor car owned by the petitioner was twice used for taking bundles of newspapers from the office of the Indian Express to the Railway Station. It was held that when the car was used for taking the said bundles, it came within the definition of a goods vehicle as defined by. S. 2 (8) and, therefore, permit under S. 42 (1) was necessary and as the owner had no permit thereunder, he was guilty of an offence punishable under S. 123. 8. The combined effect of S. 42 (1) and the definitions of a motor vehicle, a public service vehicle and a transport vehicle is that if a motor vehicle is used as a transport vehicle. the owner who so uses it or permits it to be so used is required to obtain the necessary permit. It is the use of the motor vehicle for carrying passengers for hire or reward which determines the application of S 42 (1) Therefore, whenever it is so used without the permit, there is an infringement of the sub-section. If the constriction of that sub-section adapted by the High Court of Mysore were correct. it would mean that whereas an owner of a transport vehicle is required to have the permit the owner of a motor vehicle not constructed or adapted as a transport vehicle can carry with impunity passengers for hire or reward without any permit therefor. Section 42 (1) has been enacted for the purpose of controlling vehicles carrying; passengers, the object of such control being obviously to ensure safety of passengers. The construction accepted by the Mysore High Court would defeat the object for which the Legislature provided such contorl in the interest of and for the safety of passengers. The view taken by the Mysore High Court with respect is not correct and the view taken by the High Court of Madras is not only correct but is in Consonance with the purpose and object of Section 42 (1). | 1[ds]5. Section 42 (1) no doubt uses the words "owner of a transport vehicle" and provides that he shall not use or permit its use in any public place save in accordance with the conditions of a permit granted or countersigned by the prescribed authority. These words, however, cannot mean that the sub-section applies only to cases where the motor vehicle in question is registered as a transport vehicle8. The combined effect of S. 42 (1) and the definitions of a motor vehicle, a public service vehicle and a transport vehicle is that if a motor vehicle is used as a transport vehicle. the owner who so uses it or permits it to be so used is required to obtain the necessary permit. It is the use of the motor vehicle for carrying passengers for hire or reward which determines the application of S 42 (1) Therefore, whenever it is so used without the permit, there is an infringement of the sub-section. If the constriction of that sub-section adapted by the High Court of Mysore were correct. it would mean that whereas an owner of a transport vehicle is required to have the permit the owner of a motor vehicle not constructed or adapted as a transport vehicle can carry with impunity passengers for hire or reward without any permit therefor. Section 42 (1) has been enacted for the purpose of controlling vehicles carrying; passengers, the object of such control being obviously to ensure safety of passengers. The construction accepted by the Mysore High Court would defeat the object for which the Legislature provided such contorl in the interest of and for the safety of passengers. The view taken by the Mysore High Court with respect is not correct and the view taken by the High Court of Madras is not only correct but is in Consonance with the purpose and object of Section 42 (1)It is thus clear that what brought the motor vehicle under para 5, Sch. II was the purpose for which it was used. | 1 | 2,549 | 376 | ### Instruction:
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which a higher rate of duty was applicable under the said Schedule, duty at such higher rate would be chargeable in respect of the licence for the vehicle. The appellant In that case who carried on business as a greengrocer held a licence for a private motor car, duty having been paid thereon at the horse-power rate under para 6, Sch II of the Finance Act. 1920. The car was neither constructed not adapted for use for conveyance of goods but the appellant, while the licence was in force used the said car of "occasionally for conveyance of goods in the course of his trade. It was contended that his user was for a purpose which brought the car within a class to which higher rate of duty under para 5of Sch. II of Finance Act, 1920 became chargeable". The Court accepted the contention and held that the user was for a purpose which brought the car within para 5 Sch. II of the said Act and the appellant was rightly convicted. It was not in dispute that the can was used by the appellant only of occasionally for conveyance of goods in connection with his trade. Negativing the contention, that the car was not chargeable to higher duty as it was not adapted for carriage of goods Avory, J., observed that the section referred to cases where the vehicle, while the licence is in force, had been used in an altered condition or in a manner or for a purpose which brings it within, or which if it was used solely in that condition or in that manner or for that purpose would bring it within a class or description of vehicle to which a higher rate of duty is applicable". He added that to construe that section vie has only to see what was the purpose for which the car was being used which would bring it within the class to which a higher rate of duty was applicable. The purpose which brought it within para 5, as distinguished from para 6 of Sch II. was the purpose of conveyance of: goods. At page 421 of the Report it was further observed,"where a licence had been taken out and the vehicle was at any time, while that licence was in force, used (a) in an altered condition, (b) in a manner, or (c) for a purpose which brings it within or which if it was used solely in that condition or in that manner or for that purpose would bring it within a class or description of vehicle to which a higher rate of duty is app1icable, then duty at the higher rate, becomes chargeable". It is thus clear that what brought the motor vehicle under para 5, Sch. II was the purpose for which it was used. 7. Similarly in Public Prosecutor v. R. Rajagopalan AIR 1938 Mad 233 , the High Court of Madras held that though Rules .30 (a) of the Madras Motor Vehicles Rules was intended to apply to motor vehicles used for the express purpose of letting for hire, if a motor vehicle was used even once for such a purpose, then, on that one occasion it was nonetheless let for hire. Hence if a person undertakes to convey goods for reward in his private vehicle on one occasion without the necessary licence he would be regarded as having let his vehicle for hire and would commit an offence under that rule. It was contended in that case that the Legislature did not intend to compel an owner of a private vehicle, who ordinarily uses his vehicle for his own purposes to take out a licence merely because on one occasion he conveyed goods for hire in his private lorry. That contention was negatived on the ground that a motor vehicle even if used once for conveying goods for reward would nonetheless be regarded on that occasion as one let out for hire. In Re, Manager, Indian Express, AIR 1945 Mad 440 . a motor car owned by the petitioner was twice used for taking bundles of newspapers from the office of the Indian Express to the Railway Station. It was held that when the car was used for taking the said bundles, it came within the definition of a goods vehicle as defined by. S. 2 (8) and, therefore, permit under S. 42 (1) was necessary and as the owner had no permit thereunder, he was guilty of an offence punishable under S. 123. 8. The combined effect of S. 42 (1) and the definitions of a motor vehicle, a public service vehicle and a transport vehicle is that if a motor vehicle is used as a transport vehicle. the owner who so uses it or permits it to be so used is required to obtain the necessary permit. It is the use of the motor vehicle for carrying passengers for hire or reward which determines the application of S 42 (1) Therefore, whenever it is so used without the permit, there is an infringement of the sub-section. If the constriction of that sub-section adapted by the High Court of Mysore were correct. it would mean that whereas an owner of a transport vehicle is required to have the permit the owner of a motor vehicle not constructed or adapted as a transport vehicle can carry with impunity passengers for hire or reward without any permit therefor. Section 42 (1) has been enacted for the purpose of controlling vehicles carrying; passengers, the object of such control being obviously to ensure safety of passengers. The construction accepted by the Mysore High Court would defeat the object for which the Legislature provided such contorl in the interest of and for the safety of passengers. The view taken by the Mysore High Court with respect is not correct and the view taken by the High Court of Madras is not only correct but is in Consonance with the purpose and object of Section 42 (1).
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1
### Explanation:
5. Section 42 (1) no doubt uses the words "owner of a transport vehicle" and provides that he shall not use or permit its use in any public place save in accordance with the conditions of a permit granted or countersigned by the prescribed authority. These words, however, cannot mean that the sub-section applies only to cases where the motor vehicle in question is registered as a transport vehicle8. The combined effect of S. 42 (1) and the definitions of a motor vehicle, a public service vehicle and a transport vehicle is that if a motor vehicle is used as a transport vehicle. the owner who so uses it or permits it to be so used is required to obtain the necessary permit. It is the use of the motor vehicle for carrying passengers for hire or reward which determines the application of S 42 (1) Therefore, whenever it is so used without the permit, there is an infringement of the sub-section. If the constriction of that sub-section adapted by the High Court of Mysore were correct. it would mean that whereas an owner of a transport vehicle is required to have the permit the owner of a motor vehicle not constructed or adapted as a transport vehicle can carry with impunity passengers for hire or reward without any permit therefor. Section 42 (1) has been enacted for the purpose of controlling vehicles carrying; passengers, the object of such control being obviously to ensure safety of passengers. The construction accepted by the Mysore High Court would defeat the object for which the Legislature provided such contorl in the interest of and for the safety of passengers. The view taken by the Mysore High Court with respect is not correct and the view taken by the High Court of Madras is not only correct but is in Consonance with the purpose and object of Section 42 (1)It is thus clear that what brought the motor vehicle under para 5, Sch. II was the purpose for which it was used.
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Kura & Another Vs. Jag Ram & Others | plaintiff reinforces his contention regarding the descent of the 2/3 share by pointing out that Amar Singh is shown to have had a share, so the plaintiff could only have obtained 1/6 in the whole Patti (that is 1/4 of 2/3) if the entire 2/3 had come from Sahib Rai. The shares later found in the other two branches confirm this because Amar Singhs 1/6 share went to the other two branches to the exclusion of the plaintiffs and thus augmented their shares by 1/12 each and thus increased their shares form 1/6 to 1/4 which is exactly the state of things disclosed in 1904-06.16. The defendant contests this and says there is a big assumption at each step. In the first place, no one knows the extent of Sahib Rais share and simply because the family as a whole is found to have possessed a 2/3 share in 1904-06 it does not follow that that was the extent of Sahib Rais share a hundred years earlier and that there were no subsequent acquisitions. Secondly, the mere fact that a family is found to have 533 bighas 15 biswas in 1904-06 is no guarantee that their remote ancestor had exactly the same lands a hundred years earlier and that none of it is a later acquisition.17. The defendant reinforces his arguments by showing from these documents that the property has not descended as it would have had it been ancestral property coming down from Sahib Rai. It is true the plaintiffs father had 1/6 which would have been his share if Amar Singhs died branch was still in existence but as Amar Singh without issue the plaintiffs father should have obtained a 1/3 in Amar Singhs 1/6. Instead of that the plaintiffs branch got nothing and Amar Singh 1/6 was divided up half and half between the other two branches bringing their shares up to 1/4 each (that is 1/6 plus 1/12).18. Next the defendant draws attention to the disparity in the extent of their holdings. The family as a whole had 533 bighas 15 biswas. If the whole of this came down room Sahib Rai the plaintiffs 1/4 share in it would have been 133 bighas 9 biswas. That is to say, the plaintiffs father has 11 bighas 12 biswas less than he should.19. The other two branches should each have 3/8 of the 533 bighas 15 biwas (that is, 1/4 of their own plus 1/8 from Amar Singh). This comes to 200 bighas 4 biswas. Instead, they are found to have 201 bighas 4 biswas and 210 bighas 14 biswas respectively.20. Now it is true that if we accept the premises on which the plaintiffs arguments are founded, namely that Sahib Rai had a 2/3 share in the Dhariwal Patti and that the lands now in the possession of the family appertained to that 2/3 share and were held by Sahib Rai, then the disparity which now appears could be explained on the basis of inequality in the quality of the land and so forth because the differences are not glaring once it is accepted that. Amar Singhs share was by mutual consent divided up among the other two branches of the family. But we agree with the High Court that there is no justification for such assumptions.21. In the first place, there were eight families in this village. If Sahib Rai was given a 2/3 share in half the village, that is 1/3 in the whole, his share would appear to be disproportionate. Of course that could have been the case. He could have been given such a disproportionately large share for a number of reasons but we are not justified in assuming that that did in fact occur.22. In the next place, the Kafait Dehi (Ex. PB) states that"Under the aforementioned circumstances the pattidari form of the village is imperfect."Then a note adds-"But in the scheme of collecting Bachh the form of the village has been held to be one of Bhaia Chara and the share of tenure as entered in the pedigree table represents now only the shares in shamlat".We were told in argument that Bhaia Chara means that the village is not held in shares but that each person is considered to be the owner of whatever land he happens to have in his possession. The note shows that the shares shown in Ex. PC only relate to the portion held jointly and have no relation to the other lands exclusively occupied by them.In the circumstances we cannot assume that the lands now found in the familys possession were the very lands held by Sahib Rai by simply correlating them to the shares shown against each branch in the shamlat lands, and as the extent of the lands is in fact unequal when correlated to these shares no presumption in favour of its ancestral character can be drawn. It is impossible to conclude with any reasonable degree of certainty that there was no change in the course of a hundred years and that portions of the land shown to have been in the plaintiffs possession in 1904-06 were not subsequent acquisitions made by Harnama himself. The documents Exs. PC and PM do not, in our opinion, carry the case any further one way or the other.23. The burden of proof is on the plaintiff and their Lordships of the Privy Council have twice held that in the Punjab"to establish the ancestral character of land it is not sufficient to show that the name of the common ancestor from whom the parties are descended was mentioned in the revenue pedigree. It should also be proved that descendants of the common ancestor held the land in ancestral shares and that the land occupied, at the time of the dispute, by the proprietors thereof had devolved upon them by inheritance." --- Mt. Subani v. Nawab, AIR 1941 PC 21 at p. 23 (A); --- Imam Din v. Said Bibi, AIR 1949 PC 87 at p. 89 (B). | 1[ds]20. Now it is true that if we accept the premises on which the plaintiffs arguments are founded, namely that Sahib Rai had a 2/3 share in the Dhariwal Patti and that the lands now in the possession of the family appertained to that 2/3 share and were held by Sahib Rai, then the disparity which now appears could be explained on the basis of inequality in the quality of the land and so forth because the differences are not glaring once it is accepted that. Amar Singhs share was by mutual consent divided up among the other two branches of the family. But we agree with the High Court that there is no justification for such assumptions.21. In the first place, there were eight families in this village. If Sahib Rai was given a 2/3 share in half the village, that is 1/3 in the whole, his share would appear to be disproportionate. Of course that could have been the case. He could have been given such a disproportionately large share for a number of reasons but we are not justified in assuming that that did in fact occur.22. In the next place, the Kafait Dehi (Ex. PB) statesthe aforementioned circumstances the pattidari form of the village isBut in the scheme of collecting Bachh the form of the village has been held to be one of Bhaia Chara and the share of tenure as entered in the pedigree table represents now only the shares inwere told in argument that Bhaia Chara means that the village is not held in shares but that each person is considered to be the owner of whatever land he happens to have in his possession. The note shows that the shares shown in Ex. PC only relate to the portion held jointly and have no relation to the other lands exclusively occupied by them.In the circumstances we cannot assume that the lands now found in the familys possession were the very lands held by Sahib Rai by simply correlating them to the shares shown against each branch in the shamlat lands, and as the extent of the lands is in fact unequal when correlated to these shares no presumption in favour of its ancestral character can be drawn. It is impossible to conclude with any reasonable degree of certainty that there was no change in the course of a hundred years and that portions of the land shown to have been in the plaintiffs possession inwere not subsequent acquisitions made by Harnama himself. The documents Exs. PC and PM do not, in our opinion, carry the case any further one way or the other.23. The burden of proof is on the plaintiff and their Lordships of the Privy Council have twice held that in theestablish the ancestral character of land it is not sufficient to show that the name of the common ancestor from whom the parties are descended was mentioned in the revenue pedigree. It should also be proved that descendants of the common ancestor held the land in ancestral shares and that the land occupied, at the time of the dispute, by the proprietors thereof had devolved upon them by inheritance.Subani v. Nawab, AIR 1941 PC 21 at p. 23Din v. Said Bibi, AIR 1949 PC 87 at p. 89 | 1 | 2,430 | 584 | ### Instruction:
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plaintiff reinforces his contention regarding the descent of the 2/3 share by pointing out that Amar Singh is shown to have had a share, so the plaintiff could only have obtained 1/6 in the whole Patti (that is 1/4 of 2/3) if the entire 2/3 had come from Sahib Rai. The shares later found in the other two branches confirm this because Amar Singhs 1/6 share went to the other two branches to the exclusion of the plaintiffs and thus augmented their shares by 1/12 each and thus increased their shares form 1/6 to 1/4 which is exactly the state of things disclosed in 1904-06.16. The defendant contests this and says there is a big assumption at each step. In the first place, no one knows the extent of Sahib Rais share and simply because the family as a whole is found to have possessed a 2/3 share in 1904-06 it does not follow that that was the extent of Sahib Rais share a hundred years earlier and that there were no subsequent acquisitions. Secondly, the mere fact that a family is found to have 533 bighas 15 biswas in 1904-06 is no guarantee that their remote ancestor had exactly the same lands a hundred years earlier and that none of it is a later acquisition.17. The defendant reinforces his arguments by showing from these documents that the property has not descended as it would have had it been ancestral property coming down from Sahib Rai. It is true the plaintiffs father had 1/6 which would have been his share if Amar Singhs died branch was still in existence but as Amar Singh without issue the plaintiffs father should have obtained a 1/3 in Amar Singhs 1/6. Instead of that the plaintiffs branch got nothing and Amar Singh 1/6 was divided up half and half between the other two branches bringing their shares up to 1/4 each (that is 1/6 plus 1/12).18. Next the defendant draws attention to the disparity in the extent of their holdings. The family as a whole had 533 bighas 15 biswas. If the whole of this came down room Sahib Rai the plaintiffs 1/4 share in it would have been 133 bighas 9 biswas. That is to say, the plaintiffs father has 11 bighas 12 biswas less than he should.19. The other two branches should each have 3/8 of the 533 bighas 15 biwas (that is, 1/4 of their own plus 1/8 from Amar Singh). This comes to 200 bighas 4 biswas. Instead, they are found to have 201 bighas 4 biswas and 210 bighas 14 biswas respectively.20. Now it is true that if we accept the premises on which the plaintiffs arguments are founded, namely that Sahib Rai had a 2/3 share in the Dhariwal Patti and that the lands now in the possession of the family appertained to that 2/3 share and were held by Sahib Rai, then the disparity which now appears could be explained on the basis of inequality in the quality of the land and so forth because the differences are not glaring once it is accepted that. Amar Singhs share was by mutual consent divided up among the other two branches of the family. But we agree with the High Court that there is no justification for such assumptions.21. In the first place, there were eight families in this village. If Sahib Rai was given a 2/3 share in half the village, that is 1/3 in the whole, his share would appear to be disproportionate. Of course that could have been the case. He could have been given such a disproportionately large share for a number of reasons but we are not justified in assuming that that did in fact occur.22. In the next place, the Kafait Dehi (Ex. PB) states that"Under the aforementioned circumstances the pattidari form of the village is imperfect."Then a note adds-"But in the scheme of collecting Bachh the form of the village has been held to be one of Bhaia Chara and the share of tenure as entered in the pedigree table represents now only the shares in shamlat".We were told in argument that Bhaia Chara means that the village is not held in shares but that each person is considered to be the owner of whatever land he happens to have in his possession. The note shows that the shares shown in Ex. PC only relate to the portion held jointly and have no relation to the other lands exclusively occupied by them.In the circumstances we cannot assume that the lands now found in the familys possession were the very lands held by Sahib Rai by simply correlating them to the shares shown against each branch in the shamlat lands, and as the extent of the lands is in fact unequal when correlated to these shares no presumption in favour of its ancestral character can be drawn. It is impossible to conclude with any reasonable degree of certainty that there was no change in the course of a hundred years and that portions of the land shown to have been in the plaintiffs possession in 1904-06 were not subsequent acquisitions made by Harnama himself. The documents Exs. PC and PM do not, in our opinion, carry the case any further one way or the other.23. The burden of proof is on the plaintiff and their Lordships of the Privy Council have twice held that in the Punjab"to establish the ancestral character of land it is not sufficient to show that the name of the common ancestor from whom the parties are descended was mentioned in the revenue pedigree. It should also be proved that descendants of the common ancestor held the land in ancestral shares and that the land occupied, at the time of the dispute, by the proprietors thereof had devolved upon them by inheritance." --- Mt. Subani v. Nawab, AIR 1941 PC 21 at p. 23 (A); --- Imam Din v. Said Bibi, AIR 1949 PC 87 at p. 89 (B).
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### Explanation:
20. Now it is true that if we accept the premises on which the plaintiffs arguments are founded, namely that Sahib Rai had a 2/3 share in the Dhariwal Patti and that the lands now in the possession of the family appertained to that 2/3 share and were held by Sahib Rai, then the disparity which now appears could be explained on the basis of inequality in the quality of the land and so forth because the differences are not glaring once it is accepted that. Amar Singhs share was by mutual consent divided up among the other two branches of the family. But we agree with the High Court that there is no justification for such assumptions.21. In the first place, there were eight families in this village. If Sahib Rai was given a 2/3 share in half the village, that is 1/3 in the whole, his share would appear to be disproportionate. Of course that could have been the case. He could have been given such a disproportionately large share for a number of reasons but we are not justified in assuming that that did in fact occur.22. In the next place, the Kafait Dehi (Ex. PB) statesthe aforementioned circumstances the pattidari form of the village isBut in the scheme of collecting Bachh the form of the village has been held to be one of Bhaia Chara and the share of tenure as entered in the pedigree table represents now only the shares inwere told in argument that Bhaia Chara means that the village is not held in shares but that each person is considered to be the owner of whatever land he happens to have in his possession. The note shows that the shares shown in Ex. PC only relate to the portion held jointly and have no relation to the other lands exclusively occupied by them.In the circumstances we cannot assume that the lands now found in the familys possession were the very lands held by Sahib Rai by simply correlating them to the shares shown against each branch in the shamlat lands, and as the extent of the lands is in fact unequal when correlated to these shares no presumption in favour of its ancestral character can be drawn. It is impossible to conclude with any reasonable degree of certainty that there was no change in the course of a hundred years and that portions of the land shown to have been in the plaintiffs possession inwere not subsequent acquisitions made by Harnama himself. The documents Exs. PC and PM do not, in our opinion, carry the case any further one way or the other.23. The burden of proof is on the plaintiff and their Lordships of the Privy Council have twice held that in theestablish the ancestral character of land it is not sufficient to show that the name of the common ancestor from whom the parties are descended was mentioned in the revenue pedigree. It should also be proved that descendants of the common ancestor held the land in ancestral shares and that the land occupied, at the time of the dispute, by the proprietors thereof had devolved upon them by inheritance.Subani v. Nawab, AIR 1941 PC 21 at p. 23Din v. Said Bibi, AIR 1949 PC 87 at p. 89
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Kalwa Devadattam And Two Others Vs. The Union Of India And Others | property, after impleading him as a party to the execution proceeding, for we are definitely of the opinion that the High Court was right in holding that the partition was a sham transaction which was not intended to be operative.14. On March 14, 1947 the deed of partition was executed and registered. The object of this partition it is alleged was to protect the interest of his minor sons against their father who was acting to the detriment of his sons and was not even living with the family. The High Court relied upon a large number of circumstances in support of its view that the partition was nominal. The deed was executed within a week after the decree was passed by the High Court in Kumaji Sare Mals suit. Nagappa had acquired an extensive property which was on acquisition treated as joint family property and there was nothing to show that Nagappa was illdisposed towards his sons or was actuated by any desire to harm their interest. The real purpose of the partition was to save as much property as possible and to preserve it for his children. The deed of partition showed apparently an equal distribution of property valued at Rs. 1,24,600/- into four shares each of the value of Rs. 31,150/- but the properties allotted to the share of Nagappa were in reality not worth that amount. Nagappa had also to discharge a debt for Rs. 12,236/4/9 for which he was rendered liable under the deed and that debt could not be satisfied out of the property allotted to him. Again immediately after the deed of partition, Nagappa settled upon his wife Narayanamma a major fraction of that share and sold away one of houses. The intention of Nagappa to make it appear to the Income-tax Department that no useful purpose would be served by taking coercive steps as the property allotted to him and remaining after disposal of a good part of it as indicated above was wholly insufficient to meet the demands of the Department, is indeed clear. It was Nagappa who had instigated and prosecuted the suit. Narayanamma was illiterate and ignorant woman., who knew nothing about Nagappas transactions, and dealings. She did not even know what property had fallen to the share of her sons. Admissions made by her disclose that she did not manage the property though apparently she was treated as the guardian of her sons in the partition deed. The story that Nagappa was living with a mistress, and was not looking after the education and welfare of his minor sons does not appear to be supported by any reliable evidence. The eldest son was at the date of the alleged partition 14 years of age, and the youngest was three years old, and in the absence of any serious cause for the differences between Nagappa and Narayanamma partition of the estate could not have been thought of. Witness Singari Seshanna D. W. 1, has deposed that Nagappa, his wife and children were living together in the family house even at the date of the suit and that Nagappa was collecting rents from all the houses. This statement does not appear to have been challenged in cross-examination P. W. 5 Venkatsami the clerk of Narayanamma, who claimed to be looking after management of the properties on behalf of Narayanamma, admitted that he could not say which of the houses were leases and to whom; he was unable to give any particulars with regard to some of the houses. This ignorance on the part of the alleged manager lends support to the testimony of Singari Seshanna D. W. 1 that it was Nagappa who remained in management of the property, and that the family lived together and in fact there was no disruption of the joint family. It is true that many documents were produced to show that the properties were entered in the names of the sons after the deed of partition. It also appears that taxes were paid separately in respect of the houses to the local Municipality and receipts were issued in the names of persons in whose names they stood in the municipal records. But these receipts do no show the names of the persons by whom the amounts acknowledged in the receipts were paid. The High Court has believed the evidence of Singari Seshanna D. W. 1 that it was Nagappa who continued to remain in management. It is true that the plaintiffs have led evidence of two witnesses P. W. 6 and P. W. 7 who have deposed that they had assisted in making the partition. The deed of partition was undoubtedly executed and was registered, but the mere execution of the deed is not decisive of the question whether it was intended to be effective. The circumstances disclosed by the evidence clearly show that there was no reason for arriving at a partition. Counsel for the plaintiffs practically conceded that fact, and submitted that Nagappas desire to defeat his creditors, and to save the property for his sons, was the real cause for bringing the deed of partition into existence, Counsel claimed however that Nagappa had adopted the expedient of effecting a partition with the object of putting the property out of the reach of his creditors, and the genuineness of that partition should not be permitted to be blurred by the unmeritorious object of Nagappa. But the continued management or the property by Nagappa since the partition and the interest shown by him in prosecuting the suits do clearly support the inference that the deed of partition was a nominal transaction which was never intended to be acted upon and was not given effect to. If it be held that the partition was a sham transaction the plaintiffs suit for setting aside the summary order passed in execution proceeding on the application filed by the plaintiffs for setting aside the attachment must fail. The Appeal No. 624 of 1961 must therefore also fail. | 0[ds]In the present case no order under S. 25A(1) wasIt is common ground that the plaintiffs had no other source of income. As admitted by Nagappa and his clerk Venkatsami, Nagappa made large profits in his business and Rs. 18481/- out of the consideration payable under Ext. A-230 were actually paid to the vendors by Nagappa. There were before the Court two versions-one by the plaintiffs who alleged that the consideration for the sale-deed was supplied by Seshamma. That version, for reasons already stated, cannot be accepted. On the other hand there is the version that the funds belonged to the joint family of which Nagappa was the Manager and that Nagappa paid the consideration. No documentary evidence in support of either version is forthcoming : even Nagappas accounts have not been produced. But if the monies were actually paid by Nagappa and the story about Seshamma having provided the amount be disbelieved it would be a legitimate inference consistent with probability that Nagappa had for purchasing the property provided the funds out of the joint family earnings. It appears that Kumaji Sare mal who are the respondents in Appeal No. 642 of 1961 had in the suit filed by them in 1942 obtained an order for attachment before judgment over the immovable property of the joint family in the hands of Nagappa. This attachment before judgment was outstanding at the date of the sale-deed Ext. A-230. This order for attachment before judgment was vacated when the suit was dismissed by the Trial Court on August 31, 1944. This circumstance in the context of the other evidence strongly supports the contention of the Union that with a view to protect the properties from his creditors Nagappa thought of purchasing the properties in the names of his sons the plaintiffs and the consideration was advanced by him. The High Court was therefore right in holding that the properties Items 46 to 51 were of the joint family and liable to be attached and sold in enforcement of the liability for payment of income-tax. Civil Appeal No. 641 of 1961 must therefordo not think it necessary to express our opinion on the question whether the remedy of the creditor is to file a separate suit to enforce the pious obligation of a Hindu son to discharge the debts of his father, where since the decree against the father on a debt there has been a severance of the joint family status, or whether he can proceed to execute the decree against the sons interest in the property, after impleading him as a party to the execution proceeding, for we are definitely of the opinion that the High Court was right in holding that the partition was a sham transaction which was not intended to be operative.14. On March 14, 1947 the deed of partition was executed and registered. The object of this partition it is alleged was to protect the interest of his minor sons against their father who was acting to the detriment of his sons and was not even living with the family. The High Court relied upon a large number of circumstances in support of its view that the partition was nominal. The deed was executed within a week after the decree was passed by the High Court in Kumaji Sare Mals suit. Nagappa had acquired an extensive property which was on acquisition treated as joint family property and there was nothing to show that Nagappa was illdisposed towards his sons or was actuated by any desire to harm their interest. The real purpose of the partition was to save as much property as possible and to preserve it for his children. The deed of partition showed apparently an equal distribution of property valued at Rs. 1,24,600/- into four shares each of the value of Rs. 31,150/- but the properties allotted to the share of Nagappa were in reality not worth that amount. Nagappa had also to discharge a debt for Rs. 12,236/4/9 for which he was rendered liable under the deed and that debt could not be satisfied out of the property allotted to him. Again immediately after the deed of partition, Nagappa settled upon his wife Narayanamma a major fraction of that share and sold away one of houses. The intention of Nagappa to make it appear to the Income-tax Department that no useful purpose would be served by taking coercive steps as the property allotted to him and remaining after disposal of a good part of it as indicated above was wholly insufficient to meet the demands of the Department, is indeed clear. It was Nagappa who had instigated and prosecuted the suit. Narayanamma was illiterate and ignorant woman., who knew nothing about Nagappas transactions, and dealings. She did not even know what property had fallen to the share of her sons. Admissions made by her disclose that she did not manage the property though apparently she was treated as the guardian of her sons in the partition deed. The story that Nagappa was living with a mistress, and was not looking after the education and welfare of his minor sons does not appear to be supported by any reliable evidence. The eldest son was at the date of the alleged partition 14 years of age, and the youngest was three years old, and in the absence of any serious cause for the differences between Nagappa and Narayanamma partition of the estate could not have been thought of. Witness Singari Seshanna D. W. 1, has deposed that Nagappa, his wife and children were living together in the family house even at the date of the suit and that Nagappa was collecting rents from all the houses. This statement does not appear to have been challenged in cross-examination P. W. 5 Venkatsami the clerk of Narayanamma, who claimed to be looking after management of the properties on behalf of Narayanamma, admitted that he could not say which of the houses were leases and to whom; he was unable to give any particulars with regard to some of the houses. This ignorance on the part of the alleged manager lends support to the testimony of Singari Seshanna D. W. 1 that it was Nagappa who remained in management of the property, and that the family lived together and in fact there was no disruption of the joint family. It is true that many documents were produced to show that the properties were entered in the names of the sons after the deed of partition. It also appears that taxes were paid separately in respect of the houses to the local Municipality and receipts were issued in the names of persons in whose names they stood in the municipal records. But these receipts do no show the names of the persons by whom the amounts acknowledged in the receipts were paid. The High Court has believed the evidence of Singari Seshanna D. W. 1 that it was Nagappa who continued to remain in management. It is true that the plaintiffs have led evidence of two witnesses P. W. 6 and P. W. 7 who have deposed that they had assisted in making the partition. The deed of partition was undoubtedly executed and was registered, but the mere execution of the deed is not decisive of the question whether it was intended to be effective. The circumstances disclosed by the evidence clearly show that there was no reason for arriving at athe continued management or the property by Nagappa since the partition and the interest shown by him in prosecuting the suits do clearly support the inference that the deed of partition was a nominal transaction which was never intended to be acted upon and was not given effect to. If it be held that the partition was a sham transaction the plaintiffs suit for setting aside the summary order passed in execution proceeding on the application filed by the plaintiffs for setting aside the attachment must fail. The Appeal No. 624 of 1961 must therefore also fail. | 0 | 7,004 | 1,419 | ### Instruction:
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property, after impleading him as a party to the execution proceeding, for we are definitely of the opinion that the High Court was right in holding that the partition was a sham transaction which was not intended to be operative.14. On March 14, 1947 the deed of partition was executed and registered. The object of this partition it is alleged was to protect the interest of his minor sons against their father who was acting to the detriment of his sons and was not even living with the family. The High Court relied upon a large number of circumstances in support of its view that the partition was nominal. The deed was executed within a week after the decree was passed by the High Court in Kumaji Sare Mals suit. Nagappa had acquired an extensive property which was on acquisition treated as joint family property and there was nothing to show that Nagappa was illdisposed towards his sons or was actuated by any desire to harm their interest. The real purpose of the partition was to save as much property as possible and to preserve it for his children. The deed of partition showed apparently an equal distribution of property valued at Rs. 1,24,600/- into four shares each of the value of Rs. 31,150/- but the properties allotted to the share of Nagappa were in reality not worth that amount. Nagappa had also to discharge a debt for Rs. 12,236/4/9 for which he was rendered liable under the deed and that debt could not be satisfied out of the property allotted to him. Again immediately after the deed of partition, Nagappa settled upon his wife Narayanamma a major fraction of that share and sold away one of houses. The intention of Nagappa to make it appear to the Income-tax Department that no useful purpose would be served by taking coercive steps as the property allotted to him and remaining after disposal of a good part of it as indicated above was wholly insufficient to meet the demands of the Department, is indeed clear. It was Nagappa who had instigated and prosecuted the suit. Narayanamma was illiterate and ignorant woman., who knew nothing about Nagappas transactions, and dealings. She did not even know what property had fallen to the share of her sons. Admissions made by her disclose that she did not manage the property though apparently she was treated as the guardian of her sons in the partition deed. The story that Nagappa was living with a mistress, and was not looking after the education and welfare of his minor sons does not appear to be supported by any reliable evidence. The eldest son was at the date of the alleged partition 14 years of age, and the youngest was three years old, and in the absence of any serious cause for the differences between Nagappa and Narayanamma partition of the estate could not have been thought of. Witness Singari Seshanna D. W. 1, has deposed that Nagappa, his wife and children were living together in the family house even at the date of the suit and that Nagappa was collecting rents from all the houses. This statement does not appear to have been challenged in cross-examination P. W. 5 Venkatsami the clerk of Narayanamma, who claimed to be looking after management of the properties on behalf of Narayanamma, admitted that he could not say which of the houses were leases and to whom; he was unable to give any particulars with regard to some of the houses. This ignorance on the part of the alleged manager lends support to the testimony of Singari Seshanna D. W. 1 that it was Nagappa who remained in management of the property, and that the family lived together and in fact there was no disruption of the joint family. It is true that many documents were produced to show that the properties were entered in the names of the sons after the deed of partition. It also appears that taxes were paid separately in respect of the houses to the local Municipality and receipts were issued in the names of persons in whose names they stood in the municipal records. But these receipts do no show the names of the persons by whom the amounts acknowledged in the receipts were paid. The High Court has believed the evidence of Singari Seshanna D. W. 1 that it was Nagappa who continued to remain in management. It is true that the plaintiffs have led evidence of two witnesses P. W. 6 and P. W. 7 who have deposed that they had assisted in making the partition. The deed of partition was undoubtedly executed and was registered, but the mere execution of the deed is not decisive of the question whether it was intended to be effective. The circumstances disclosed by the evidence clearly show that there was no reason for arriving at a partition. Counsel for the plaintiffs practically conceded that fact, and submitted that Nagappas desire to defeat his creditors, and to save the property for his sons, was the real cause for bringing the deed of partition into existence, Counsel claimed however that Nagappa had adopted the expedient of effecting a partition with the object of putting the property out of the reach of his creditors, and the genuineness of that partition should not be permitted to be blurred by the unmeritorious object of Nagappa. But the continued management or the property by Nagappa since the partition and the interest shown by him in prosecuting the suits do clearly support the inference that the deed of partition was a nominal transaction which was never intended to be acted upon and was not given effect to. If it be held that the partition was a sham transaction the plaintiffs suit for setting aside the summary order passed in execution proceeding on the application filed by the plaintiffs for setting aside the attachment must fail. The Appeal No. 624 of 1961 must therefore also fail.
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### Explanation:
for payment of income-tax. Civil Appeal No. 641 of 1961 must therefordo not think it necessary to express our opinion on the question whether the remedy of the creditor is to file a separate suit to enforce the pious obligation of a Hindu son to discharge the debts of his father, where since the decree against the father on a debt there has been a severance of the joint family status, or whether he can proceed to execute the decree against the sons interest in the property, after impleading him as a party to the execution proceeding, for we are definitely of the opinion that the High Court was right in holding that the partition was a sham transaction which was not intended to be operative.14. On March 14, 1947 the deed of partition was executed and registered. The object of this partition it is alleged was to protect the interest of his minor sons against their father who was acting to the detriment of his sons and was not even living with the family. The High Court relied upon a large number of circumstances in support of its view that the partition was nominal. The deed was executed within a week after the decree was passed by the High Court in Kumaji Sare Mals suit. Nagappa had acquired an extensive property which was on acquisition treated as joint family property and there was nothing to show that Nagappa was illdisposed towards his sons or was actuated by any desire to harm their interest. The real purpose of the partition was to save as much property as possible and to preserve it for his children. The deed of partition showed apparently an equal distribution of property valued at Rs. 1,24,600/- into four shares each of the value of Rs. 31,150/- but the properties allotted to the share of Nagappa were in reality not worth that amount. Nagappa had also to discharge a debt for Rs. 12,236/4/9 for which he was rendered liable under the deed and that debt could not be satisfied out of the property allotted to him. Again immediately after the deed of partition, Nagappa settled upon his wife Narayanamma a major fraction of that share and sold away one of houses. The intention of Nagappa to make it appear to the Income-tax Department that no useful purpose would be served by taking coercive steps as the property allotted to him and remaining after disposal of a good part of it as indicated above was wholly insufficient to meet the demands of the Department, is indeed clear. It was Nagappa who had instigated and prosecuted the suit. Narayanamma was illiterate and ignorant woman., who knew nothing about Nagappas transactions, and dealings. She did not even know what property had fallen to the share of her sons. Admissions made by her disclose that she did not manage the property though apparently she was treated as the guardian of her sons in the partition deed. The story that Nagappa was living with a mistress, and was not looking after the education and welfare of his minor sons does not appear to be supported by any reliable evidence. The eldest son was at the date of the alleged partition 14 years of age, and the youngest was three years old, and in the absence of any serious cause for the differences between Nagappa and Narayanamma partition of the estate could not have been thought of. Witness Singari Seshanna D. W. 1, has deposed that Nagappa, his wife and children were living together in the family house even at the date of the suit and that Nagappa was collecting rents from all the houses. This statement does not appear to have been challenged in cross-examination P. W. 5 Venkatsami the clerk of Narayanamma, who claimed to be looking after management of the properties on behalf of Narayanamma, admitted that he could not say which of the houses were leases and to whom; he was unable to give any particulars with regard to some of the houses. This ignorance on the part of the alleged manager lends support to the testimony of Singari Seshanna D. W. 1 that it was Nagappa who remained in management of the property, and that the family lived together and in fact there was no disruption of the joint family. It is true that many documents were produced to show that the properties were entered in the names of the sons after the deed of partition. It also appears that taxes were paid separately in respect of the houses to the local Municipality and receipts were issued in the names of persons in whose names they stood in the municipal records. But these receipts do no show the names of the persons by whom the amounts acknowledged in the receipts were paid. The High Court has believed the evidence of Singari Seshanna D. W. 1 that it was Nagappa who continued to remain in management. It is true that the plaintiffs have led evidence of two witnesses P. W. 6 and P. W. 7 who have deposed that they had assisted in making the partition. The deed of partition was undoubtedly executed and was registered, but the mere execution of the deed is not decisive of the question whether it was intended to be effective. The circumstances disclosed by the evidence clearly show that there was no reason for arriving at athe continued management or the property by Nagappa since the partition and the interest shown by him in prosecuting the suits do clearly support the inference that the deed of partition was a nominal transaction which was never intended to be acted upon and was not given effect to. If it be held that the partition was a sham transaction the plaintiffs suit for setting aside the summary order passed in execution proceeding on the application filed by the plaintiffs for setting aside the attachment must fail. The Appeal No. 624 of 1961 must therefore also fail.
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Munusamy & Others Vs. The Managing Director, Tamil Nadu State Transport Corporation (Villupuram) Ltd | the head ‘loss of dependency’. The necessity to provide future prospects has been expounded by the Constitution Bench of this Court in National Insurance Company Ltd. (supra). It will be useful to reproduce paragraph No.59 of the said judgment, which reads thus: “59. Having bestowed our anxious consideration, we are disposed to think when we accept the principle of standardization, there is really no rationale not to apply the said principle to the self-employed or a person who is on a fixed 44 salary. To follow the doctrine of actual income at the time of death and not to add any amount with regard to future prospects to the income for the purpose of determination of multiplicand would be unjust. The determination of income while computing compensation has to include future prospects so that the method will come within the ambit and sweep of just compensation as postulated under Section 168 of the Act. In case of a deceased who had held a permanent job with inbuilt grant of annual increment, there is an acceptable certainty. But to state that the legal representatives of a deceased who was on a fixed salary would not be entitled to the benefit of future prospects for the purpose of computation of compensation would be inapposite. It is because the criterion of distinction between the two in that event would be certainty on the one hand and staticness on the other. One may perceive that the comparative measure is certainty on the one hand and uncertainty on the other but such a perception is fallacious. It is because the price rise does affect a self-employed person; and that apart there is always an incessant effort to enhance one’s income for sustenance. The purchasing capacity of a salaried person on permanent job when increases because of grant of increments and pay revision or for some other change in service conditions, there is always a 45 competing attitude in the private sector to enhance the salary to get better efficiency from the employees. Similarly, a person who is self-employed is bound to garner his resources and raise his charges/fees so that he can live with same facilities. To have the perception that he is likely to remain static and his income to remain stagnant is contrary to the fundamental concept of human attitude which always intends to live with dynamism and move and change with the time. Though it may seem appropriate that there cannot be certainty in addition of future prospects to the existing income unlike in the case of a person having a permanent job, yet the said perception does not really deserve acceptance. We are inclined to think that there can be some degree of difference as regards the percentage that is meant for or applied to in respect of the legal representatives who claim on behalf of the deceased who had a permanent job than a person who is self-employed or on a fixed salary. But not to apply the principle of standardization on the foundation of perceived lack of certainty would tantamount to remaining oblivious to the marrows of ground reality. And, therefore, degreetest is imperative. Unless the degreetest is applied and left to the parties to adduce evidence to establish, it would be unfair and inequitable. The degreetest has to have the inbuilt concept of 46 percentage. Taking into consideration the cumulative factors, namely, passage of time, the changing society, escalation of price, the change in price index, the human attitude to follow a particular pattern of life, etc., an addition of 40% of the established income of the deceased towards future prospects and where the deceased was below 40 years an addition of 25% where the deceased was between the age of 40 to 50 years would be reasonable.” Again, in the concluding paragraph No.61 the Court observed thus: “61. In view of the aforesaid analysis, we proceed to record our conclusions:* * *(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was 48 between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.(iv) In case the deceased was selfemployed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.” 4. On 03.03.2007, the deceased (Palani), who was only around 21 years of age at the time, was riding a motorcycle bearing Registration No. TN22 AP 5092 along with his friend, one Haridass as a pillion rider, from Tambaram to Chengalpattu on GST Road, Maraimalai Nagar, opposite Vikram Hotel, when they collided with a bus bearing Registration No. TN21 N 0943 belonging to the respondent Transport Corporation, which was driven in a rash and negligent manner. The deceased was unmarried and working as a contract worker in Hyundai Car Company, Sriperumbudur. Applying the dictum of the Constitution Bench referred to above, the appellants are justified in insisting for grant of future prospects at the rate of 40% of the established income. The High Court has held that the earning of the deceased at the relevant time can be taken as Rs.4,000/per month. The High Court did not provide 40% towards future prospects on the established income of the deceased. Thus, the monthly loss of dependency, in the facts of the present case would be Rs.4,000 + 1,600 = Rs.5,600/. | 1[ds]3. On perusal of the judgment under appeal, it is evident that the High Court has not provided for future prospects while computing the compensation amount under the head ‘loss ofThe necessity to provide future prospects has been expounded by the Constitution Bench of this Court in National Insurance Company Ltd.the dictum of the Constitution Bench referred to above, the appellants are justified in insisting for grant of future prospects at the rate of 40% of the established income. The High Court has held that the earning of the deceased at the relevant time can be taken as Rs.4,000/per month. The High Court did not provide 40% towards future prospects on the established income of the deceased. Thus, the monthly loss of dependency, in the facts of the present case would be Rs.4,000 + 1,600 = Rs.5,600/. | 1 | 1,444 | 153 | ### Instruction:
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the head ‘loss of dependency’. The necessity to provide future prospects has been expounded by the Constitution Bench of this Court in National Insurance Company Ltd. (supra). It will be useful to reproduce paragraph No.59 of the said judgment, which reads thus: “59. Having bestowed our anxious consideration, we are disposed to think when we accept the principle of standardization, there is really no rationale not to apply the said principle to the self-employed or a person who is on a fixed 44 salary. To follow the doctrine of actual income at the time of death and not to add any amount with regard to future prospects to the income for the purpose of determination of multiplicand would be unjust. The determination of income while computing compensation has to include future prospects so that the method will come within the ambit and sweep of just compensation as postulated under Section 168 of the Act. In case of a deceased who had held a permanent job with inbuilt grant of annual increment, there is an acceptable certainty. But to state that the legal representatives of a deceased who was on a fixed salary would not be entitled to the benefit of future prospects for the purpose of computation of compensation would be inapposite. It is because the criterion of distinction between the two in that event would be certainty on the one hand and staticness on the other. One may perceive that the comparative measure is certainty on the one hand and uncertainty on the other but such a perception is fallacious. It is because the price rise does affect a self-employed person; and that apart there is always an incessant effort to enhance one’s income for sustenance. The purchasing capacity of a salaried person on permanent job when increases because of grant of increments and pay revision or for some other change in service conditions, there is always a 45 competing attitude in the private sector to enhance the salary to get better efficiency from the employees. Similarly, a person who is self-employed is bound to garner his resources and raise his charges/fees so that he can live with same facilities. To have the perception that he is likely to remain static and his income to remain stagnant is contrary to the fundamental concept of human attitude which always intends to live with dynamism and move and change with the time. Though it may seem appropriate that there cannot be certainty in addition of future prospects to the existing income unlike in the case of a person having a permanent job, yet the said perception does not really deserve acceptance. We are inclined to think that there can be some degree of difference as regards the percentage that is meant for or applied to in respect of the legal representatives who claim on behalf of the deceased who had a permanent job than a person who is self-employed or on a fixed salary. But not to apply the principle of standardization on the foundation of perceived lack of certainty would tantamount to remaining oblivious to the marrows of ground reality. And, therefore, degreetest is imperative. Unless the degreetest is applied and left to the parties to adduce evidence to establish, it would be unfair and inequitable. The degreetest has to have the inbuilt concept of 46 percentage. Taking into consideration the cumulative factors, namely, passage of time, the changing society, escalation of price, the change in price index, the human attitude to follow a particular pattern of life, etc., an addition of 40% of the established income of the deceased towards future prospects and where the deceased was below 40 years an addition of 25% where the deceased was between the age of 40 to 50 years would be reasonable.” Again, in the concluding paragraph No.61 the Court observed thus: “61. In view of the aforesaid analysis, we proceed to record our conclusions:* * *(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was 48 between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.(iv) In case the deceased was selfemployed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.” 4. On 03.03.2007, the deceased (Palani), who was only around 21 years of age at the time, was riding a motorcycle bearing Registration No. TN22 AP 5092 along with his friend, one Haridass as a pillion rider, from Tambaram to Chengalpattu on GST Road, Maraimalai Nagar, opposite Vikram Hotel, when they collided with a bus bearing Registration No. TN21 N 0943 belonging to the respondent Transport Corporation, which was driven in a rash and negligent manner. The deceased was unmarried and working as a contract worker in Hyundai Car Company, Sriperumbudur. Applying the dictum of the Constitution Bench referred to above, the appellants are justified in insisting for grant of future prospects at the rate of 40% of the established income. The High Court has held that the earning of the deceased at the relevant time can be taken as Rs.4,000/per month. The High Court did not provide 40% towards future prospects on the established income of the deceased. Thus, the monthly loss of dependency, in the facts of the present case would be Rs.4,000 + 1,600 = Rs.5,600/.
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1
### Explanation:
3. On perusal of the judgment under appeal, it is evident that the High Court has not provided for future prospects while computing the compensation amount under the head ‘loss ofThe necessity to provide future prospects has been expounded by the Constitution Bench of this Court in National Insurance Company Ltd.the dictum of the Constitution Bench referred to above, the appellants are justified in insisting for grant of future prospects at the rate of 40% of the established income. The High Court has held that the earning of the deceased at the relevant time can be taken as Rs.4,000/per month. The High Court did not provide 40% towards future prospects on the established income of the deceased. Thus, the monthly loss of dependency, in the facts of the present case would be Rs.4,000 + 1,600 = Rs.5,600/.
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Luka Mathai Vs. S Subramonia Iyer | from a surety or out of any such property, such sum shall, on the application of the surety or the owner of such property be recovered on his behalf from the borrower or out of the land for the benefit of which the loan has been granted, in manner provided in this Section."From these provisions it is quite clear that the loans granted under the Regulation, interest and charges, etc. can be recovered in any or all of the four modes described in the section. They can be recovered from the borrower under clause (a); they can be recovered from a surety under clause (b); the land for the benefit of which the loan had been granted can be proceeded against under clause (c); and under clause (d) property comprised in the collateral security can be proceeded against. The fact that the properties which had been sold were not mentioned in the bond as collateral security or were not expressly hypothecated does not make any difference because the Travancore Revenue Recovery Act I of 1068 provides under S.5 that "when Public Revenue doe on land may be in arrear, such arrear, together with interest, if any, and costs of process, may be recovered by the sale of the defaulters movable or immovable property or both, in the manner hereinafter provided."5. The learned counsel for the appellant contends that neither the Travancore Revenue Recovery Act I of 1068 nor the Land Improvement and Agricultural Loans Regulation I of 1094, and the rules made thereunder, confer any power or jurisdiction on the State Government or its officers to sell through the machinery of the Revenue Recovery Act any other property of the borrower than what he has specifically given by his bond as security for the loan. It is further contended that the borrower does not incur any personal liability unless he has specifically so covenanted in the bond and hence the sale of all the 12 out of the 13 items of land sold one item alone having been a security property under the loan agreement was unauthorised, illegal and void.6. We are unable to agree with this contention. It is not necessary for the borrower to specifically so covenant in his bond that he would be personally liable because S.7 (1) (a) of Regulation IX of 1094 makes the borrower personally liable. This is also made clear by sub-S. (2). Under sub-S. (2), if a surety pays the loan he can request that the money be recovered from the borrower on his behalf.7. The learned counsel relied on the decision in Ulahannan Ouseph v. Koohitti Kochukumari 23 Travancore Law Journal 1051;1054 where reference was, made to an earlier judgment in the Dewan of Travancore v. Eravi Narayanan 29 Travancore Law Reports 37 in which it was held that "though under S.59 of the Revenue Recovery Regulation, moneys due to Government under written agreements and all sums declared by other Regulations to be realisable as arrears of public revenue may be recovered under this Regulation, that section only makes the machinery or procedure prescribed in the Regulation applicable to such cases, and it would not follow that the incidents of a Revenue sale held under S.39 would also attach to sales held under the authority conferred by the provisions of S.59". The Court held that the property In the case remained subject to the plaintiffs prior charge.8. We are unable to appreciate how this case assists us on the question whether there is any personal liability of the appellant or not.9. The learned counsel also drew our attention to Birendra Nath Raha v. Mir Mahabubar Rahiman AIR. 1917 Cal. 332. In this case it was held that according to the provisions of the Bengal Land Revanue Sales Act, 1868, the properties in question could not be sold because they were neither an estate nor a tenure within S.5 of the Act. No such question arises in this case but it may be mentioned that at page 336 the Court interpreted cl. (a) of S.7 of the Land Improvement Loans Act to mean that it imposed a personal liability on the borrower.10. There is, however, authority against the contentions of the appellant. The Madras High Court observed in Gonjulada Bhojarajappa v. Korlaballi Halappa AIR. 1946 Mad. 226 as follows:It is clear from S.5, Revenue Recovery Act, that for the recovery of a loan advanced under the Agriculturists Loans Act it is open to the Collector to sell any part of the immovable property belonging to the defaulter, and the remedy is not confined to that particular property in respect of which or for whose improvement the Joan had been taken."11. It may be noted that S.5 of the Agriculturists Loans Act, 1884, provides: "Every loan made in accordance with such rules, all interest (if any) chargeable thereon, and costs (if any) incurred in making or recovering the same, shall, when they become due, be recoverable from the person to whom the loan was made, or from any person who has become surety for the repayment thereof, as if they were arrears of land, revenue or costs incurred in recovering the same due by the persons to whom the loan was made or by his surety.In interpreting this section, the Madras High Court, in the above-mentioned case clearly held that it was open to the Collector to sell any part of the immovable property belonging to the defaulter, and the remedy was not confined to that particular property is respect of which or for whose improvement the loan had been taken.12. We may also mention that in Lakshman Venkatesh Naik v. Secretary of State AIR. 1939 Bom.183 while dealing with S.7 of the Land Improvement Loans Act, 1883, which is in terms similar to S.7 of Travancore Regulation II of 1094, it was observed that "it was therefore open to the Collector to adopt all or any of the four different methods which the Section provides for the recovery of the taqavi arrears."13. | 0[ds]It is not necessary for the borrower to specifically so covenant in his bond that he would be personally liable because S.7 (1) (a) of Regulation IX of 1094 makes the borrower personally liable. This is also made clear by sub-S. (2). Under sub-S. (2), if a surety pays the loan he can request that the money be recovered from the borrower on his behalf.We are unable to appreciate how this case assists us on the question whether there is any personal liability of the appellant or not.It may be noted that S.5 ofthe Agriculturists Loans Act, 1884, provides: "Every loan made in accordance with such rules, all interest (if any) chargeable thereon, and costs (if any) incurred in making or recovering the same, shall, when they become due, be recoverable from the person to whom the loan was made, or from any person who has become surety for the repayment thereof, as if they were arrears of land, revenue or costs incurred in recovering the same due by the persons to whom the loan was made or by hisinterpreting this section, the Madras High Court, in the above-mentioned case clearly held that it was open to the Collector to sell any part of the immovable property belonging to the defaulter, and the remedy was not confined to that particular property is respect of which or for whose improvement the loan had been taken.12. We may also mention that in Lakshman Venkatesh Naik v. Secretary of State AIR. 1939 Bom.183 while dealing with S.7 ofthe Land Improvement Loans Act, 1883, which is in terms similar to S.7 of Travancore Regulation II of 1094, it was observed that "it was therefore open to the Collector to adopt all or any of the four different methods which the Section provides for the recovery of the taqavithese provisions it is quite clear that the loans granted under the Regulation, interest and charges, etc. can be recovered in any or all of the four modes described in the section. They can be recovered from the borrower under clause (a); they can be recovered from a surety under clause (b); the land for the benefit of which the loan had been granted can be proceeded against under clause (c); and under clause (d) property comprised in the collateral security can be proceeded against. The fact that the properties which had been sold were not mentioned in the bond as collateral security or were not expressly hypothecated does not make any difference because the Travancore Revenue Recovery Act I of 1068 provides under S.5 that "when Public Revenue doe on land may be in arrear, such arrear, together with interest, if any, and costs of process, may be recovered by the sale of the defaulters movable or immovable property or both, in the manner hereinafter provided.We are unable to agree with this contention.It is not necessary for the borrower to specifically so covenant in his bond that he would be personally liable because S.7 (1) (a) of Regulation IX of 1094 makes the borrower personally liable. This is also made clear by(2), if a surety pays the loan he can request that the money be recovered from the borrower on his behalf. | 0 | 1,864 | 609 | ### 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:
from a surety or out of any such property, such sum shall, on the application of the surety or the owner of such property be recovered on his behalf from the borrower or out of the land for the benefit of which the loan has been granted, in manner provided in this Section."From these provisions it is quite clear that the loans granted under the Regulation, interest and charges, etc. can be recovered in any or all of the four modes described in the section. They can be recovered from the borrower under clause (a); they can be recovered from a surety under clause (b); the land for the benefit of which the loan had been granted can be proceeded against under clause (c); and under clause (d) property comprised in the collateral security can be proceeded against. The fact that the properties which had been sold were not mentioned in the bond as collateral security or were not expressly hypothecated does not make any difference because the Travancore Revenue Recovery Act I of 1068 provides under S.5 that "when Public Revenue doe on land may be in arrear, such arrear, together with interest, if any, and costs of process, may be recovered by the sale of the defaulters movable or immovable property or both, in the manner hereinafter provided."5. The learned counsel for the appellant contends that neither the Travancore Revenue Recovery Act I of 1068 nor the Land Improvement and Agricultural Loans Regulation I of 1094, and the rules made thereunder, confer any power or jurisdiction on the State Government or its officers to sell through the machinery of the Revenue Recovery Act any other property of the borrower than what he has specifically given by his bond as security for the loan. It is further contended that the borrower does not incur any personal liability unless he has specifically so covenanted in the bond and hence the sale of all the 12 out of the 13 items of land sold one item alone having been a security property under the loan agreement was unauthorised, illegal and void.6. We are unable to agree with this contention. It is not necessary for the borrower to specifically so covenant in his bond that he would be personally liable because S.7 (1) (a) of Regulation IX of 1094 makes the borrower personally liable. This is also made clear by sub-S. (2). Under sub-S. (2), if a surety pays the loan he can request that the money be recovered from the borrower on his behalf.7. The learned counsel relied on the decision in Ulahannan Ouseph v. Koohitti Kochukumari 23 Travancore Law Journal 1051;1054 where reference was, made to an earlier judgment in the Dewan of Travancore v. Eravi Narayanan 29 Travancore Law Reports 37 in which it was held that "though under S.59 of the Revenue Recovery Regulation, moneys due to Government under written agreements and all sums declared by other Regulations to be realisable as arrears of public revenue may be recovered under this Regulation, that section only makes the machinery or procedure prescribed in the Regulation applicable to such cases, and it would not follow that the incidents of a Revenue sale held under S.39 would also attach to sales held under the authority conferred by the provisions of S.59". The Court held that the property In the case remained subject to the plaintiffs prior charge.8. We are unable to appreciate how this case assists us on the question whether there is any personal liability of the appellant or not.9. The learned counsel also drew our attention to Birendra Nath Raha v. Mir Mahabubar Rahiman AIR. 1917 Cal. 332. In this case it was held that according to the provisions of the Bengal Land Revanue Sales Act, 1868, the properties in question could not be sold because they were neither an estate nor a tenure within S.5 of the Act. No such question arises in this case but it may be mentioned that at page 336 the Court interpreted cl. (a) of S.7 of the Land Improvement Loans Act to mean that it imposed a personal liability on the borrower.10. There is, however, authority against the contentions of the appellant. The Madras High Court observed in Gonjulada Bhojarajappa v. Korlaballi Halappa AIR. 1946 Mad. 226 as follows:It is clear from S.5, Revenue Recovery Act, that for the recovery of a loan advanced under the Agriculturists Loans Act it is open to the Collector to sell any part of the immovable property belonging to the defaulter, and the remedy is not confined to that particular property in respect of which or for whose improvement the Joan had been taken."11. It may be noted that S.5 of the Agriculturists Loans Act, 1884, provides: "Every loan made in accordance with such rules, all interest (if any) chargeable thereon, and costs (if any) incurred in making or recovering the same, shall, when they become due, be recoverable from the person to whom the loan was made, or from any person who has become surety for the repayment thereof, as if they were arrears of land, revenue or costs incurred in recovering the same due by the persons to whom the loan was made or by his surety.In interpreting this section, the Madras High Court, in the above-mentioned case clearly held that it was open to the Collector to sell any part of the immovable property belonging to the defaulter, and the remedy was not confined to that particular property is respect of which or for whose improvement the loan had been taken.12. We may also mention that in Lakshman Venkatesh Naik v. Secretary of State AIR. 1939 Bom.183 while dealing with S.7 of the Land Improvement Loans Act, 1883, which is in terms similar to S.7 of Travancore Regulation II of 1094, it was observed that "it was therefore open to the Collector to adopt all or any of the four different methods which the Section provides for the recovery of the taqavi arrears."13.
### Response:
0
### Explanation:
It is not necessary for the borrower to specifically so covenant in his bond that he would be personally liable because S.7 (1) (a) of Regulation IX of 1094 makes the borrower personally liable. This is also made clear by sub-S. (2). Under sub-S. (2), if a surety pays the loan he can request that the money be recovered from the borrower on his behalf.We are unable to appreciate how this case assists us on the question whether there is any personal liability of the appellant or not.It may be noted that S.5 ofthe Agriculturists Loans Act, 1884, provides: "Every loan made in accordance with such rules, all interest (if any) chargeable thereon, and costs (if any) incurred in making or recovering the same, shall, when they become due, be recoverable from the person to whom the loan was made, or from any person who has become surety for the repayment thereof, as if they were arrears of land, revenue or costs incurred in recovering the same due by the persons to whom the loan was made or by hisinterpreting this section, the Madras High Court, in the above-mentioned case clearly held that it was open to the Collector to sell any part of the immovable property belonging to the defaulter, and the remedy was not confined to that particular property is respect of which or for whose improvement the loan had been taken.12. We may also mention that in Lakshman Venkatesh Naik v. Secretary of State AIR. 1939 Bom.183 while dealing with S.7 ofthe Land Improvement Loans Act, 1883, which is in terms similar to S.7 of Travancore Regulation II of 1094, it was observed that "it was therefore open to the Collector to adopt all or any of the four different methods which the Section provides for the recovery of the taqavithese provisions it is quite clear that the loans granted under the Regulation, interest and charges, etc. can be recovered in any or all of the four modes described in the section. They can be recovered from the borrower under clause (a); they can be recovered from a surety under clause (b); the land for the benefit of which the loan had been granted can be proceeded against under clause (c); and under clause (d) property comprised in the collateral security can be proceeded against. The fact that the properties which had been sold were not mentioned in the bond as collateral security or were not expressly hypothecated does not make any difference because the Travancore Revenue Recovery Act I of 1068 provides under S.5 that "when Public Revenue doe on land may be in arrear, such arrear, together with interest, if any, and costs of process, may be recovered by the sale of the defaulters movable or immovable property or both, in the manner hereinafter provided.We are unable to agree with this contention.It is not necessary for the borrower to specifically so covenant in his bond that he would be personally liable because S.7 (1) (a) of Regulation IX of 1094 makes the borrower personally liable. This is also made clear by(2), if a surety pays the loan he can request that the money be recovered from the borrower on his behalf.
|
Selveraj Vs. State of Tamil Nadu | was closed. But, in order to make Manisekaran an eyewitness, the prosecution came forward with the story that he was sent by Natesan with edibles for his children at 8.15 p.m. This is a tall story which is difficult to believe. There is no reason why at 8.15 p.m. Manisekaran should have been asked by Natesan to purchase edibles from the market and carry them to the house for the children. In all probability the children would have finished their meals. Even if Manisekaran carried edibles to the house of Natesan, there is no reason why he should have waited there for half an hour from 8.30 p.m. to 9 p.m. in order to be able to witness the incident. It is again strange and unusual that though Manisekaran saw the appellant stabbing the deceased, he did not utter any shout or attempt to run out of the house for purpose of seeking help for the deceased. We are not at all satisfied that Manisekaran was an eyewitness to incident and his testimony cannot be relied upon for the purpose of supporting the conviction of the appellant.6. The oral testimony of Natesan and Manisekaran was sought to be supported by the evidence of Angamuthu. But we do not think that the evidence of Angamuthu is of such a nature as to inspire any confidence. In the first place, out of three persons, namely, Angamuthu, Madhavan and Sunderarajan, who were supposed to have come to the house of Natesan after the stabbing of the deceased, Angamuthu alone was examined as a witness. Secondly, the story narrated by Angamuthu is inherently improbable. What Angamuthu said was that when he and others were sitting at the Mariamman Temple. They saw the appellant running away with a knife in his hand and when questioned, the appellant said that he had stabbed the wife of Natesan tailor and wreaked vengeance. Now, it is difficult to believe that after committing the murder of the deceased, the appellant would be running in the open street holding in his hand, for everyone to see, the knife with which hand stabbed the deceased. Moreover, when he is questioned as to why he is running away, he would hardly stop for the purpose of answering the question and boastfully proclaim that he had killed Natesan tailors wife and wreaked vengeance. The entire evidence of Angamuthu in this regard sounds highly improbable and we find ourselves unable to accept it.7. The prosecution relied strongly on the evidence of recovery of the knife from the appellant. But this evidence is also far from satisfactory. The recovery of the knife was made under mazahar Ex. P-10 which was attested by A. Saleem and Rajarathnam. Now, out of these two witnesses only one came to give evidence, namely, A. Saleem. He stated that at the time of the incident he was in his shed carrying out repairs to the lorry of Rajarathnam and when they heard about the incident, they proceeded towards the hospital, but on the way then learnt that Natesan had gone to the police station and so they also went to the police station. Whilst they were at the police station, the appellant came running to the police station with the knife in his hand and gave a statement and then the Head Constable seized the knife under mazahar Ex P-10 which was signed by both of them. Now it is difficult to accept this evidence at its face value. In the first place, it is difficult to see why A. Saleem and Rajarathnam should have gone to the police station on their own, merely on learning about the incident. It is not stated by A. Saleem that he was in any way friendly with Natesan so that on hearing about the occurrence, he would be induced to go to the police station in order to held Natesan. It is a well-known fact that ordinarily people do not willingly go to the police station unless there is some compelling reason to do so. And even if A. Saleem had some reason to go to the police station, why should Rajarathnam also have accompanied him ? It is also rather significant that the Head Constable, who prepared the mazahar Ex. P-10, did not even bother to take down fathers name and address of Saleem and Rajarathnam. He did not know these two witnesses before and if he did not take down their addresses, it is difficult to understand how he could hope to be able to secure their presence at the time of the trial. Then again, if we look at the mazahar Ex. P-10, it appears to be a suspicious document. The words "blood stained" seem to have been added subsequently on the back side of the mazahar Ex. P-10 and it does appear from the way in which the last paragraph has been compressed in order to accommodate it within the space above the signature of Saleem that the signature of Saleem and Rajarathnam were first taken on a blank sheet of paper and then the contents of the Mazahar Ex. P-10 were written out. The learned Additional Sessions Judge also doubted the genuineness of the mazahar Ex. P-10 and declined to place any reliance on the recovery of the knife. The High Court unfortunately did not refer to this infirmity in the prosecution evidence. We are afraid it is not possible to place any reliance on the recovery of the knife from the appellant and if the evidence in regard to the recovery of the knife is suspect, it would equally be unsafe to place reliance on the evidence in regard to the recovery of the shirt and the pant.8. It would thus be seen that the evidence led on behalf of the prosecution is wholly unsatisfactory and it cannot be regarded as sufficient to found the conviction of the appellant for the murder of the deceased. The appellant, must, therefore, be acquitted of the offence charged against him. | 1[ds]It is also rather significant that the Head Constable, who prepared the mazahar Ex.did not even bother to take down fathers name and address of Saleem and Rajarathnam. He did not know these two witnesses before and if he did not take down their addresses, it is difficult to understand how he could hope to be able to secure their presence at the time of the trial. Then again, if we look at the mazahar Ex.it appears to be a suspicious document. The words "blood stained" seem to have been added subsequently on the back side of the mazahar Ex.and it does appear from the way in which the last paragraph has been compressed in order to accommodate it within the space above the signature of Saleem that the signature of Saleem and Rajarathnam were first taken on a blank sheet of paper and then the contents of the Mazahar Ex.were written out. The learned Additional Sessions Judge also doubted the genuineness of the mazahar Ex.and declined to place any reliance on the recovery of the knife. The High Court unfortunately did not refer to this infirmity in the prosecution evidence. We are afraid it is not possible to place any reliance on the recovery of the knife from the appellant and if the evidence in regard to the recovery of the knife is suspect, it would equally be unsafe to place reliance on the evidence in regard to the recovery of the shirt and the pant.8. It would thus be seen that the evidence led on behalf of the prosecution is wholly unsatisfactory and it cannot be regarded as sufficient to found the conviction of the appellant for the murder of the deceased. The appellant, must, therefore, be acquitted of the offence charged against him. | 1 | 2,570 | 319 | ### 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:
was closed. But, in order to make Manisekaran an eyewitness, the prosecution came forward with the story that he was sent by Natesan with edibles for his children at 8.15 p.m. This is a tall story which is difficult to believe. There is no reason why at 8.15 p.m. Manisekaran should have been asked by Natesan to purchase edibles from the market and carry them to the house for the children. In all probability the children would have finished their meals. Even if Manisekaran carried edibles to the house of Natesan, there is no reason why he should have waited there for half an hour from 8.30 p.m. to 9 p.m. in order to be able to witness the incident. It is again strange and unusual that though Manisekaran saw the appellant stabbing the deceased, he did not utter any shout or attempt to run out of the house for purpose of seeking help for the deceased. We are not at all satisfied that Manisekaran was an eyewitness to incident and his testimony cannot be relied upon for the purpose of supporting the conviction of the appellant.6. The oral testimony of Natesan and Manisekaran was sought to be supported by the evidence of Angamuthu. But we do not think that the evidence of Angamuthu is of such a nature as to inspire any confidence. In the first place, out of three persons, namely, Angamuthu, Madhavan and Sunderarajan, who were supposed to have come to the house of Natesan after the stabbing of the deceased, Angamuthu alone was examined as a witness. Secondly, the story narrated by Angamuthu is inherently improbable. What Angamuthu said was that when he and others were sitting at the Mariamman Temple. They saw the appellant running away with a knife in his hand and when questioned, the appellant said that he had stabbed the wife of Natesan tailor and wreaked vengeance. Now, it is difficult to believe that after committing the murder of the deceased, the appellant would be running in the open street holding in his hand, for everyone to see, the knife with which hand stabbed the deceased. Moreover, when he is questioned as to why he is running away, he would hardly stop for the purpose of answering the question and boastfully proclaim that he had killed Natesan tailors wife and wreaked vengeance. The entire evidence of Angamuthu in this regard sounds highly improbable and we find ourselves unable to accept it.7. The prosecution relied strongly on the evidence of recovery of the knife from the appellant. But this evidence is also far from satisfactory. The recovery of the knife was made under mazahar Ex. P-10 which was attested by A. Saleem and Rajarathnam. Now, out of these two witnesses only one came to give evidence, namely, A. Saleem. He stated that at the time of the incident he was in his shed carrying out repairs to the lorry of Rajarathnam and when they heard about the incident, they proceeded towards the hospital, but on the way then learnt that Natesan had gone to the police station and so they also went to the police station. Whilst they were at the police station, the appellant came running to the police station with the knife in his hand and gave a statement and then the Head Constable seized the knife under mazahar Ex P-10 which was signed by both of them. Now it is difficult to accept this evidence at its face value. In the first place, it is difficult to see why A. Saleem and Rajarathnam should have gone to the police station on their own, merely on learning about the incident. It is not stated by A. Saleem that he was in any way friendly with Natesan so that on hearing about the occurrence, he would be induced to go to the police station in order to held Natesan. It is a well-known fact that ordinarily people do not willingly go to the police station unless there is some compelling reason to do so. And even if A. Saleem had some reason to go to the police station, why should Rajarathnam also have accompanied him ? It is also rather significant that the Head Constable, who prepared the mazahar Ex. P-10, did not even bother to take down fathers name and address of Saleem and Rajarathnam. He did not know these two witnesses before and if he did not take down their addresses, it is difficult to understand how he could hope to be able to secure their presence at the time of the trial. Then again, if we look at the mazahar Ex. P-10, it appears to be a suspicious document. The words "blood stained" seem to have been added subsequently on the back side of the mazahar Ex. P-10 and it does appear from the way in which the last paragraph has been compressed in order to accommodate it within the space above the signature of Saleem that the signature of Saleem and Rajarathnam were first taken on a blank sheet of paper and then the contents of the Mazahar Ex. P-10 were written out. The learned Additional Sessions Judge also doubted the genuineness of the mazahar Ex. P-10 and declined to place any reliance on the recovery of the knife. The High Court unfortunately did not refer to this infirmity in the prosecution evidence. We are afraid it is not possible to place any reliance on the recovery of the knife from the appellant and if the evidence in regard to the recovery of the knife is suspect, it would equally be unsafe to place reliance on the evidence in regard to the recovery of the shirt and the pant.8. It would thus be seen that the evidence led on behalf of the prosecution is wholly unsatisfactory and it cannot be regarded as sufficient to found the conviction of the appellant for the murder of the deceased. The appellant, must, therefore, be acquitted of the offence charged against him.
### Response:
1
### Explanation:
It is also rather significant that the Head Constable, who prepared the mazahar Ex.did not even bother to take down fathers name and address of Saleem and Rajarathnam. He did not know these two witnesses before and if he did not take down their addresses, it is difficult to understand how he could hope to be able to secure their presence at the time of the trial. Then again, if we look at the mazahar Ex.it appears to be a suspicious document. The words "blood stained" seem to have been added subsequently on the back side of the mazahar Ex.and it does appear from the way in which the last paragraph has been compressed in order to accommodate it within the space above the signature of Saleem that the signature of Saleem and Rajarathnam were first taken on a blank sheet of paper and then the contents of the Mazahar Ex.were written out. The learned Additional Sessions Judge also doubted the genuineness of the mazahar Ex.and declined to place any reliance on the recovery of the knife. The High Court unfortunately did not refer to this infirmity in the prosecution evidence. We are afraid it is not possible to place any reliance on the recovery of the knife from the appellant and if the evidence in regard to the recovery of the knife is suspect, it would equally be unsafe to place reliance on the evidence in regard to the recovery of the shirt and the pant.8. It would thus be seen that the evidence led on behalf of the prosecution is wholly unsatisfactory and it cannot be regarded as sufficient to found the conviction of the appellant for the murder of the deceased. The appellant, must, therefore, be acquitted of the offence charged against him.
|
M/S Ammonia Supplies Corpn (P) Ltd Vs. M/S Modern Plastic Containers | in the register of members of a company, or (ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or" (b) default is made, or unnecessary delay takes place, in entering on the register the fact of any person having become, or ceased to be a member; the person aggrieved, or any member of the company, or the company, may apply to the Court for rectification of the register. 25. Sub-section (1) (a) of Section 155 refers to a case where the name of any person without sufficient cause entered or omitted in the register of members of a company. The word `sufficient cause is to be tested in relation to the Act and the Rules. Without sufficient cause entered or omitted to be entered means done or omitted to do in contradiction of the Act and the Rules or what ought to have been done under the Act and the Rules but not done. Reading of this sub-clause spells out the limitation under which the court has to exercise its jurisdiction. It cannot be doubted in spite of exclusiveness to decide all matter pertaining to the rectification it has to act within the said four corners and adjudication of such matter cannot be doubted to be summary in nature. So, whenever a question is raised court has to adjudicate on the facts and circumstance of each case. If it truly is rectification all matter raised in that connection should be decided by the court under Sec. 155 and if it finds adjudication of any matter not falling under it, it may direct a party to get his right adjudicated by civil court. Unless jurisdiction is expressly or implicitly barred under a Statute, for violation or redress of any such right civil court would have jurisdiction. There is nothing under the Companies Act expressly barring the jurisdiction of the civil court, but the jurisdiction of the `court as defined under the Act exercising its powers under various sections where it has been invested with exclusive jurisdiction, the jurisdiction of the civil court is impliedly barred. We have already held above the jurisdiction of the `court under Sec. 155 to the extent it has exclusive, the jurisdiction of civil court is impliedly barred. For what is not covered as aforesaid the civil court would have jurisdiction. Similarly we find even under Sec. 446(1), its words itself indicate jurisdiction of civil court is not excluded. This sub section states, `..... no suit or legal proceedings shall be commenced..... or proceeded with..... except by leave of the court. The words `except by leave of the court itself indicate on leave being given the civil court would have jurisdiction to adjudicate ones right. Of course discretion to exercise such power is with the `court. Similarly under Sec. 446(2) `court is vested with powers to entertain or dispose of any suit or proceedings by or against the company. Once this discretion is exercised to have it decided by it, it virtue of language therein excludes the jurisdiction of the civil court. So we conclude the principle of law as decided by the High Court that jurisdiction of Court under Section 155 is summary in nature cannot be faulted. Reverting to the second limb of submission by learned counsel for the appellant that court should not have directed for seeking permission to file suit only because a party for dispute sake states that the dispute raised is complicated question of facts including fraud to be adjudicated. The court should have examined itself to see whether even prima facie what is said is complicated question or not. even dispute of fraud, if by bare perusal of the document or what is apparent on the face of it on comparison of any disputed signature with that of the admitted signature the Court is able to conclude no fraud, then it should proceed to decide the matter and not reject it only because fraud is stated. Further on the other hand learned counsel for the respondent totally the denies any share having been purchased by the appellant-company or any amount paid to it. No transfer of any such share was ever approved by the Board of Directors. It is urged the money even if advanced to Sri V.K. Bhargava by the appellant-company, if at all was a private transaction between the two to which respondent-company has no concern. So we find there is total denial by the respondent.27. We have gone through the judgment of the High Court. It has rightly held the law pertaining to the jurisdiction of `court under Sec. 155 and even referred to some of the documents of the appellant but concluded since they are disputed and said to be forged hence directed for seeking peace if advised for suit. We feel it would have been appropriate if the court would have seen for itself whether these documents are disputed and any document is alleged to be forged whether it said to be so only to exclude the jurisdiction of the court or it is genuinely so. Similarly we feel appropriate while deciding this the court should take into consideration the submissions for the respondents, whether it would come within the scope of rectification or not in the light of what we have said above.28. Since the High Court has not examined this case in the aforesaid light, we feel it appropriate to direct the High Court to decide this question in the light of what we have said afresh, without prejudice to any party of any observation made by us above. In case High Court comes to the conclusion that any issue raised does not come within Sec. 155 then we feel it appropriate on the facts and circumstances of this case, as it is pending since 1984, that High Court exercises its discretion under Sec. 446(2) to get it adjudicated by the court (Company Judge) itself instead of sending back to the civil court to which we order. 29. | 1[ds]19. First the scope of Section 155 and Section 446 to be understood to be entirely in different fields. Section 155 deals with power of the Court to rectify register of members maintained by a Company. Section 441 deals with commencement of winding-up by the Court. Section 442 deals with the power of the Court to stay or restrain proceedings against the company, at any stage after the petition for winding up is filed about before a winding up order is made. A creditor or a company may apply to the Court having jurisdiction to wind up the company to restrain all further proceedings in any suits or proceedings against the Company. Section 443 deals with powers of Court to hear such petition, Section 444 entrusts the Court after the winding up order to communicate the same to the Official Liquidator. Section 445 directs that a copy of the winding up order to be filed with the Registrar. Then comes Section 446. Sub-section (1) is after winding up order has been passed or the official liquidator has been appointed, it puts an embargo on any suit to be instituted or if pending against the company on that date to be proceeded with except with the leave of the Court. Use of the words, `..... no suit.... shall be commenced `...proceeded with.... except by leave of the court...." spells out that the jurisdiction of the civil court is not ousted to adjudicate matter between the parties but embargo is to be controlled at the discretion of the Company Judge, depending on the facts of each case. Then comes Section 446 (2) under which the Court is invested with the jurisdiction to entertain or dispose of any suit or proceeding by or against the company. So Section 446 deals with cases of the company under winding up while Section 155 deals with both classes of companies, one under winding up and other not under winding-up.20. Now were proceed to examine the power of the Court to rectify the register of members of a company under Section 155. The question raised for the appellant is that the Court under this Act cannot direct an applicant to seek his remedy by way of suit but the Court under the Act having exclusive jurisdiction should decide itself.In other words, in order to qualify for rectification, every procedure as prescribed under the Companies Act before recording the name in the register of the company has to be stated to have been complied with by the applicant at least that part as required by the Act and assertion of what not complied with under the Act and rule by the person or authority of the respondent-company before applicant to claim for the rectification of such register. The Court has to examine on the facts of each case, whether an application is for rectification or something else. So field or peripheral jurisdiction of the Court under it would be what comes under rectification not projected claims under the garb of rectification. So far exercising of power for rectification within its field there could be no doubt the Court as referred under Section 155 read with Section 2(11) and Section 10, it is the Company Court alone which has exclusive jurisdiction. Similarly, under Section 446 the `Court refers to the Company Judge which has exclusive jurisdiction to decide matters what is covered under it by itself. But this does not mean by interpreting such `court having exclusive jurisdiction to include within it what is not covered under it, merely because it is cloaked under the nomenclature rectification does not mean court cannot see the substance after removing the cloak.22. Question for scrutiny before us is the peripheral field within which court could exercise its jurisdiction for rectification. As aforesaid the very word "rectification" connotes something what ought to have been done but by error not done and what ought not to have been done was done requiring correction. Rectification in other words, is the failure on the part of the company to comply with the directions under the Act. To show this error the burden is on the applicant, and to this extent any matter or dispute between persons raised in such Court it may generally decide any matter which is necessary or expedient to decide in connection with the rectification.23. Both under the 1913 Act and 1960 Act a procedure is prescribed for admitting a person as member by purchase or transfer of shares of that company. With reference to 1913 Act under Section 29, a certificate of shares or stock shall be prima facie evidence of the title of the number of the shares or stock therein. Section 30 defines "member" to be one who agrees to become a member of a company and whose name is entered in its register. Section 31 is to keep register of its members. Section 34 deals with transfer of shares and application for the registration of the transfer of shares is to be made either by the transferor or the transferee. Where such application is made by the transferor for registration of his share a registered notice is to be sent to the transferee. Section 34 (3) restricts to register a transfer share until the instrument of transfer duly stamped and executed by the transferor and transferee has been delivered to the company. Thus before the name of any transferee is registered these procedures have to be shown to have been followed, which is an obligation of any such applicant under the Act. This shows an application is to be made either by the transferor or transferee for registering the name of the transforer as members or share holders of the company by placing before the company duly stamped and signed document both by the transferor and transferee. Similarly is the position under Section 155 of Indian Companies Act, 1960 before power is exercised for rectification essential ingredients are to exist. Section 108 gives mandate to company not to register transfer of shares, unless proper instrument of transfer duly stamped and executed by or on behalf of the transeror and by or on behalf of the transferee has been delivered to the company along with certificates relating to the shares.Sub-section (1) (a) of Section 155 refers to a case where the name of any person without sufficient cause entered or omitted in the register of members of a company. The word `sufficient cause is to be tested in relation to the Act and the Rules. Without sufficient cause entered or omitted to be entered means done or omitted to do in contradiction of the Act and the Rules or what ought to have been done under the Act and the Rules but not done. Reading of this sub-clause spells out the limitation under which the court has to exercise its jurisdiction. It cannot be doubted in spite of exclusiveness to decide all matter pertaining to the rectification it has to act within the said four corners and adjudication of such matter cannot be doubted to be summary in nature. So, whenever a question is raised court has to adjudicate on the facts and circumstance of each case. If it truly is rectification all matter raised in that connection should be decided by the court under Sec. 155 and if it finds adjudication of any matter not falling under it, it may direct a party to get his right adjudicated by civil court. Unless jurisdiction is expressly or implicitly barred under a Statute, for violation or redress of any such right civil court would have jurisdiction. There is nothing under the Companies Act expressly barring the jurisdiction of the civil court, but the jurisdiction of the `court as defined under the Act exercising its powers under various sections where it has been invested with exclusive jurisdiction, the jurisdiction of the civil court is impliedly barred. We have already held above the jurisdiction of the `court under Sec. 155 to the extent it has exclusive, the jurisdiction of civil court is impliedly barred. For what is not covered as aforesaid the civil court would have jurisdiction. Similarly we find even under Sec. 446(1), its words itself indicate jurisdiction of civil court is not excluded. This sub section states, `..... no suit or legal proceedings shall be commenced..... or proceeded with..... except by leave of the court. The words `except by leave of the court itself indicate on leave being given the civil court would have jurisdiction to adjudicate ones right. Of course discretion to exercise such power is with the `court. Similarly under Sec. 446(2) `court is vested with powers to entertain or dispose of any suit or proceedings by or against the company. Once this discretion is exercised to have it decided by it, it virtue of language therein excludes the jurisdiction of the civil court. So we conclude the principle of law as decided by the High Court that jurisdiction of Court under Section 155 is summary in nature cannot be faulted. Reverting to the second limb of submission by learned counsel for the appellant that court should not have directed for seeking permission to file suit only because a party for dispute sake states that the dispute raised is complicated question of facts including fraud to be adjudicated. The court should have examined itself to see whether even prima facie what is said is complicated question or not. even dispute of fraud, if by bare perusal of the document or what is apparent on the face of it on comparison of any disputed signature with that of the admitted signature the Court is able to conclude no fraud, then it should proceed to decide the matter and not reject it only because fraud is stated. Further on the other hand learned counsel for the respondent totally the denies any share having been purchased by the appellant-company or any amount paid to it. No transfer of any such share was ever approved by the Board of Directors. It is urged the money even if advanced to Sri V.K. Bhargava by the appellant-company, if at all was a private transaction between the two to which respondent-company has no concern. So we find there is total denial by the respondent.27. We have gone through the judgment of the High Court. It has rightly held the law pertaining to the jurisdiction of `court under Sec. 155 and even referred to some of the documents of the appellant but concluded since they are disputed and said to be forged hence directed for seeking peace if advised for suit. We feel it would have been appropriate if the court would have seen for itself whether these documents are disputed and any document is alleged to be forged whether it said to be so only to exclude the jurisdiction of the court or it is genuinely so. Similarly we feel appropriate while deciding this the court should take into consideration the submissions for the respondents, whether it would come within the scope of rectification or not in the light of what we have said above.28. Since the High Court has not examined this case in the aforesaid light, we feel it appropriate to direct the High Court to decide this question in the light of what we have said afresh, without prejudice to any party of any observation made by us above. In case High Court comes to the conclusion that any issue raised does not come within Sec. 155 then we feel it appropriate on the facts and circumstances of this case, as it is pending since 1984, that High Court exercises its discretion under Sec. 446(2) to get it adjudicated by the court (Company Judge) itself instead of sending back to the civil court to which we order. | 1 | 8,730 | 2,128 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
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in the register of members of a company, or (ii) after having been entered in the register, is, without sufficient cause, omitted therefrom; or" (b) default is made, or unnecessary delay takes place, in entering on the register the fact of any person having become, or ceased to be a member; the person aggrieved, or any member of the company, or the company, may apply to the Court for rectification of the register. 25. Sub-section (1) (a) of Section 155 refers to a case where the name of any person without sufficient cause entered or omitted in the register of members of a company. The word `sufficient cause is to be tested in relation to the Act and the Rules. Without sufficient cause entered or omitted to be entered means done or omitted to do in contradiction of the Act and the Rules or what ought to have been done under the Act and the Rules but not done. Reading of this sub-clause spells out the limitation under which the court has to exercise its jurisdiction. It cannot be doubted in spite of exclusiveness to decide all matter pertaining to the rectification it has to act within the said four corners and adjudication of such matter cannot be doubted to be summary in nature. So, whenever a question is raised court has to adjudicate on the facts and circumstance of each case. If it truly is rectification all matter raised in that connection should be decided by the court under Sec. 155 and if it finds adjudication of any matter not falling under it, it may direct a party to get his right adjudicated by civil court. Unless jurisdiction is expressly or implicitly barred under a Statute, for violation or redress of any such right civil court would have jurisdiction. There is nothing under the Companies Act expressly barring the jurisdiction of the civil court, but the jurisdiction of the `court as defined under the Act exercising its powers under various sections where it has been invested with exclusive jurisdiction, the jurisdiction of the civil court is impliedly barred. We have already held above the jurisdiction of the `court under Sec. 155 to the extent it has exclusive, the jurisdiction of civil court is impliedly barred. For what is not covered as aforesaid the civil court would have jurisdiction. Similarly we find even under Sec. 446(1), its words itself indicate jurisdiction of civil court is not excluded. This sub section states, `..... no suit or legal proceedings shall be commenced..... or proceeded with..... except by leave of the court. The words `except by leave of the court itself indicate on leave being given the civil court would have jurisdiction to adjudicate ones right. Of course discretion to exercise such power is with the `court. Similarly under Sec. 446(2) `court is vested with powers to entertain or dispose of any suit or proceedings by or against the company. Once this discretion is exercised to have it decided by it, it virtue of language therein excludes the jurisdiction of the civil court. So we conclude the principle of law as decided by the High Court that jurisdiction of Court under Section 155 is summary in nature cannot be faulted. Reverting to the second limb of submission by learned counsel for the appellant that court should not have directed for seeking permission to file suit only because a party for dispute sake states that the dispute raised is complicated question of facts including fraud to be adjudicated. The court should have examined itself to see whether even prima facie what is said is complicated question or not. even dispute of fraud, if by bare perusal of the document or what is apparent on the face of it on comparison of any disputed signature with that of the admitted signature the Court is able to conclude no fraud, then it should proceed to decide the matter and not reject it only because fraud is stated. Further on the other hand learned counsel for the respondent totally the denies any share having been purchased by the appellant-company or any amount paid to it. No transfer of any such share was ever approved by the Board of Directors. It is urged the money even if advanced to Sri V.K. Bhargava by the appellant-company, if at all was a private transaction between the two to which respondent-company has no concern. So we find there is total denial by the respondent.27. We have gone through the judgment of the High Court. It has rightly held the law pertaining to the jurisdiction of `court under Sec. 155 and even referred to some of the documents of the appellant but concluded since they are disputed and said to be forged hence directed for seeking peace if advised for suit. We feel it would have been appropriate if the court would have seen for itself whether these documents are disputed and any document is alleged to be forged whether it said to be so only to exclude the jurisdiction of the court or it is genuinely so. Similarly we feel appropriate while deciding this the court should take into consideration the submissions for the respondents, whether it would come within the scope of rectification or not in the light of what we have said above.28. Since the High Court has not examined this case in the aforesaid light, we feel it appropriate to direct the High Court to decide this question in the light of what we have said afresh, without prejudice to any party of any observation made by us above. In case High Court comes to the conclusion that any issue raised does not come within Sec. 155 then we feel it appropriate on the facts and circumstances of this case, as it is pending since 1984, that High Court exercises its discretion under Sec. 446(2) to get it adjudicated by the court (Company Judge) itself instead of sending back to the civil court to which we order. 29.
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1
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the transferor and transferee. Similarly is the position under Section 155 of Indian Companies Act, 1960 before power is exercised for rectification essential ingredients are to exist. Section 108 gives mandate to company not to register transfer of shares, unless proper instrument of transfer duly stamped and executed by or on behalf of the transeror and by or on behalf of the transferee has been delivered to the company along with certificates relating to the shares.Sub-section (1) (a) of Section 155 refers to a case where the name of any person without sufficient cause entered or omitted in the register of members of a company. The word `sufficient cause is to be tested in relation to the Act and the Rules. Without sufficient cause entered or omitted to be entered means done or omitted to do in contradiction of the Act and the Rules or what ought to have been done under the Act and the Rules but not done. Reading of this sub-clause spells out the limitation under which the court has to exercise its jurisdiction. It cannot be doubted in spite of exclusiveness to decide all matter pertaining to the rectification it has to act within the said four corners and adjudication of such matter cannot be doubted to be summary in nature. So, whenever a question is raised court has to adjudicate on the facts and circumstance of each case. If it truly is rectification all matter raised in that connection should be decided by the court under Sec. 155 and if it finds adjudication of any matter not falling under it, it may direct a party to get his right adjudicated by civil court. Unless jurisdiction is expressly or implicitly barred under a Statute, for violation or redress of any such right civil court would have jurisdiction. There is nothing under the Companies Act expressly barring the jurisdiction of the civil court, but the jurisdiction of the `court as defined under the Act exercising its powers under various sections where it has been invested with exclusive jurisdiction, the jurisdiction of the civil court is impliedly barred. We have already held above the jurisdiction of the `court under Sec. 155 to the extent it has exclusive, the jurisdiction of civil court is impliedly barred. For what is not covered as aforesaid the civil court would have jurisdiction. Similarly we find even under Sec. 446(1), its words itself indicate jurisdiction of civil court is not excluded. This sub section states, `..... no suit or legal proceedings shall be commenced..... or proceeded with..... except by leave of the court. The words `except by leave of the court itself indicate on leave being given the civil court would have jurisdiction to adjudicate ones right. Of course discretion to exercise such power is with the `court. Similarly under Sec. 446(2) `court is vested with powers to entertain or dispose of any suit or proceedings by or against the company. Once this discretion is exercised to have it decided by it, it virtue of language therein excludes the jurisdiction of the civil court. So we conclude the principle of law as decided by the High Court that jurisdiction of Court under Section 155 is summary in nature cannot be faulted. Reverting to the second limb of submission by learned counsel for the appellant that court should not have directed for seeking permission to file suit only because a party for dispute sake states that the dispute raised is complicated question of facts including fraud to be adjudicated. The court should have examined itself to see whether even prima facie what is said is complicated question or not. even dispute of fraud, if by bare perusal of the document or what is apparent on the face of it on comparison of any disputed signature with that of the admitted signature the Court is able to conclude no fraud, then it should proceed to decide the matter and not reject it only because fraud is stated. Further on the other hand learned counsel for the respondent totally the denies any share having been purchased by the appellant-company or any amount paid to it. No transfer of any such share was ever approved by the Board of Directors. It is urged the money even if advanced to Sri V.K. Bhargava by the appellant-company, if at all was a private transaction between the two to which respondent-company has no concern. So we find there is total denial by the respondent.27. We have gone through the judgment of the High Court. It has rightly held the law pertaining to the jurisdiction of `court under Sec. 155 and even referred to some of the documents of the appellant but concluded since they are disputed and said to be forged hence directed for seeking peace if advised for suit. We feel it would have been appropriate if the court would have seen for itself whether these documents are disputed and any document is alleged to be forged whether it said to be so only to exclude the jurisdiction of the court or it is genuinely so. Similarly we feel appropriate while deciding this the court should take into consideration the submissions for the respondents, whether it would come within the scope of rectification or not in the light of what we have said above.28. Since the High Court has not examined this case in the aforesaid light, we feel it appropriate to direct the High Court to decide this question in the light of what we have said afresh, without prejudice to any party of any observation made by us above. In case High Court comes to the conclusion that any issue raised does not come within Sec. 155 then we feel it appropriate on the facts and circumstances of this case, as it is pending since 1984, that High Court exercises its discretion under Sec. 446(2) to get it adjudicated by the court (Company Judge) itself instead of sending back to the civil court to which we order.
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Ramlal Motiramji Tayade Vs. SPL. LAQ Officer & Others | order sheets show that it is nowhere stated that hearing was given to the petitioner and others on 29.12.2009 or on any other date. The order sheets are shrouded with suspicion. Thus, it is evident that without giving opportunity of hearing to the petitioner, the impugned notification under Section 6 of the Act was issued by the respondents Nos. 1 and 2.10. As after the issuance of the notice under Section 6 of the Act, the respondents were considering the proposal as regards acquisition of the land at Nagzari, the petitioner and the other objectors were under a bonafide belief that, the respondents had decided to drop the acquisition proceedings against the petitioner and other agriculturists at Paras. The said belief of the petitioner and others was fortified by the communication issued by the respondent No.2 to the Manager, Govt. Press Civil Lines, Nagpur on 24.12.2010. Along with the said communication, the respondent had sent a notification dated 23.12.2010 for publication in the official Gazette. The copy of the covering letter dated 24.12.2010 is annexed herewith and marked as Annexure-IX. The copy of the notification issued by the respondent No. 2 for acquisition of the land at Nagzari, Varkhed for the project of the respondents Nos. 3 and 4 is annexed herewith and marked as Annexure-X. Due to the aforesaid steps taken by the respondent No. 2, the petitioner and other land owners of village Paras were of the bonafide impression that the land acquisition proceedings for acquisition of land at Paras are going to be dropped. Hence, they did not challenge the notification under Section 4 and 6 of the Land Acquisition Act for about two years. However, on 14th of February, 2011, the respondents Nos. 1 and 2 issued notice under Section 9 of the Land Acquisition Act to the Petitioner and other objectors/land owners. The copy of the notice dated 14.2.2011 is annexed herewith and marked as Annexure-XI.11. It is pertinent to note here that, though the notification under section 4 was issued to acquire total 132 hectors of land but the notice under section 9 has been given to acquire only 109 hectors of land by the respondents. The respondents malafidely excluded the Survey Nos. 1139, 1033, 10.44, 1045, 1043, 1039, 1040, 1054, 1055 and 1056 from the acquisition. The respondents excluded the above said survey numbers under pressure in order to give benefit to the particular persons. The owner of survey No. 1039 is the mother of one Collector, the owner of survey No. 1045 is the well known contractor of M.S.P.G.C.L. Ltd. The whole action on the part of the respondents is therefore completely illegal and bad in law." 4. Similar averments were made in the other writ petitions.5. When the writ petitions were taken up for hearing, learned counsel representing the respondents informed the High Court that the Land Acquisition Officer had passed an award dated 16.6.2011 under Section 11 of the Act. After taking cognizance of their statement, the Division Bench of the High Court dismissed the writ petitions albeit without considering the grounds on which the appellants had challenged the acquisition. This is evident from the following extracts of order 30.6.2011 passed in Writ Petition No.1736/2011: "Advocate Mr. Bhide for petitioner has strenuously attempted to demonstrate that better lands for expansion of power project are available in the vicinity and according to him Government land itself in sufficient proportion is available. The learned Additional Government Pleader has pointed out that these objections were raised during Section 5A Enquiry and are duly considered and thereafter Notification under Section 6 has been issued.Advocate Shri Bhide also states that as then M.L.A. Mr. Tayade was interested in acquisition of his own lands, the lands of the petitioner have also been acquired. Mr. Tayade is not party before this Court and as already noted, the relevant facts have been looked into in Section 5A Enquiry. Such objection without joining Mr. Tayade as party cannot be looked into and ceases to have any bearing after Section 5A proceedings. It is apparent that in view of the subsequent developments, the grievance cannot be considered. Petition is, therefore, not entertained. Rejected." 6. We have heard learned counsel for the parties at some length and carefully perused the record including the writ petitions filed by the appellants before the High Court and the detailed counter affidavits filed by the respondents before this Court. 7. Although, the appellants had questioned the acquisition proceedings on several grounds including the violation of Section 5A(2) of the Act and discrimination, none of the grounds has been adverted to, considered and decided by the High Court. In Radhy Shyam (Dead) Through LRs. and others v. State of Uttar Pradesh and others, (2011) 5 SCC 553 , this Court had considered a somewhat similar issue and made the following observations: "At the outset, we record our disapproval of the casual manner in which the High Court disposed of the writ petition without even calling upon the respondents to file counter-affidavit and produce the relevant records. A reading of the averments contained in paras 11 and 16 and Grounds A and F of the writ petition, which have been extracted hereinabove coupled with the appellants assertion that the acquisition of their land was vitiated due to discrimination inasmuch as land belonging to influential persons had been left out from acquisition, but their land was acquired in total disregard of the policy of the State Government to leave out land on which dwelling units had already been constructed, show that they had succeeded in making out a strong case for deeper examination of the issues raised in the writ petition and the High Court committed serious error by summarily non-suiting them." 8. Since the impugned orders have been passed without considering the core questions raised in the writ petitions, we deem it proper to set aside the same and remit the matters to the High Court for fresh adjudication of the writ petitions filed by the appellants. | 1[ds]8. Since the impugned orders have been passed without considering the core questions raised in the writ petitions, we deem it proper to set aside the same and remit the matters to the High Court for fresh adjudication of the writ petitions filed by the | 1 | 1,858 | 51 | ### 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:
order sheets show that it is nowhere stated that hearing was given to the petitioner and others on 29.12.2009 or on any other date. The order sheets are shrouded with suspicion. Thus, it is evident that without giving opportunity of hearing to the petitioner, the impugned notification under Section 6 of the Act was issued by the respondents Nos. 1 and 2.10. As after the issuance of the notice under Section 6 of the Act, the respondents were considering the proposal as regards acquisition of the land at Nagzari, the petitioner and the other objectors were under a bonafide belief that, the respondents had decided to drop the acquisition proceedings against the petitioner and other agriculturists at Paras. The said belief of the petitioner and others was fortified by the communication issued by the respondent No.2 to the Manager, Govt. Press Civil Lines, Nagpur on 24.12.2010. Along with the said communication, the respondent had sent a notification dated 23.12.2010 for publication in the official Gazette. The copy of the covering letter dated 24.12.2010 is annexed herewith and marked as Annexure-IX. The copy of the notification issued by the respondent No. 2 for acquisition of the land at Nagzari, Varkhed for the project of the respondents Nos. 3 and 4 is annexed herewith and marked as Annexure-X. Due to the aforesaid steps taken by the respondent No. 2, the petitioner and other land owners of village Paras were of the bonafide impression that the land acquisition proceedings for acquisition of land at Paras are going to be dropped. Hence, they did not challenge the notification under Section 4 and 6 of the Land Acquisition Act for about two years. However, on 14th of February, 2011, the respondents Nos. 1 and 2 issued notice under Section 9 of the Land Acquisition Act to the Petitioner and other objectors/land owners. The copy of the notice dated 14.2.2011 is annexed herewith and marked as Annexure-XI.11. It is pertinent to note here that, though the notification under section 4 was issued to acquire total 132 hectors of land but the notice under section 9 has been given to acquire only 109 hectors of land by the respondents. The respondents malafidely excluded the Survey Nos. 1139, 1033, 10.44, 1045, 1043, 1039, 1040, 1054, 1055 and 1056 from the acquisition. The respondents excluded the above said survey numbers under pressure in order to give benefit to the particular persons. The owner of survey No. 1039 is the mother of one Collector, the owner of survey No. 1045 is the well known contractor of M.S.P.G.C.L. Ltd. The whole action on the part of the respondents is therefore completely illegal and bad in law." 4. Similar averments were made in the other writ petitions.5. When the writ petitions were taken up for hearing, learned counsel representing the respondents informed the High Court that the Land Acquisition Officer had passed an award dated 16.6.2011 under Section 11 of the Act. After taking cognizance of their statement, the Division Bench of the High Court dismissed the writ petitions albeit without considering the grounds on which the appellants had challenged the acquisition. This is evident from the following extracts of order 30.6.2011 passed in Writ Petition No.1736/2011: "Advocate Mr. Bhide for petitioner has strenuously attempted to demonstrate that better lands for expansion of power project are available in the vicinity and according to him Government land itself in sufficient proportion is available. The learned Additional Government Pleader has pointed out that these objections were raised during Section 5A Enquiry and are duly considered and thereafter Notification under Section 6 has been issued.Advocate Shri Bhide also states that as then M.L.A. Mr. Tayade was interested in acquisition of his own lands, the lands of the petitioner have also been acquired. Mr. Tayade is not party before this Court and as already noted, the relevant facts have been looked into in Section 5A Enquiry. Such objection without joining Mr. Tayade as party cannot be looked into and ceases to have any bearing after Section 5A proceedings. It is apparent that in view of the subsequent developments, the grievance cannot be considered. Petition is, therefore, not entertained. Rejected." 6. We have heard learned counsel for the parties at some length and carefully perused the record including the writ petitions filed by the appellants before the High Court and the detailed counter affidavits filed by the respondents before this Court. 7. Although, the appellants had questioned the acquisition proceedings on several grounds including the violation of Section 5A(2) of the Act and discrimination, none of the grounds has been adverted to, considered and decided by the High Court. In Radhy Shyam (Dead) Through LRs. and others v. State of Uttar Pradesh and others, (2011) 5 SCC 553 , this Court had considered a somewhat similar issue and made the following observations: "At the outset, we record our disapproval of the casual manner in which the High Court disposed of the writ petition without even calling upon the respondents to file counter-affidavit and produce the relevant records. A reading of the averments contained in paras 11 and 16 and Grounds A and F of the writ petition, which have been extracted hereinabove coupled with the appellants assertion that the acquisition of their land was vitiated due to discrimination inasmuch as land belonging to influential persons had been left out from acquisition, but their land was acquired in total disregard of the policy of the State Government to leave out land on which dwelling units had already been constructed, show that they had succeeded in making out a strong case for deeper examination of the issues raised in the writ petition and the High Court committed serious error by summarily non-suiting them." 8. Since the impugned orders have been passed without considering the core questions raised in the writ petitions, we deem it proper to set aside the same and remit the matters to the High Court for fresh adjudication of the writ petitions filed by the appellants.
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1
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8. Since the impugned orders have been passed without considering the core questions raised in the writ petitions, we deem it proper to set aside the same and remit the matters to the High Court for fresh adjudication of the writ petitions filed by the
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Coal India Ltd. Vs. Domco Smokeless Fuels (P) Ltd | India with the Secretary of Coal being the Chairman. In such a committee, a technical expert in coal should also be associated as most of the projects involve consumers of coal, particularly manufacturers of hard coke and smokeless fuel. In our opinion, it may not be difficult to find out, having regard to the technologies used therein as regards the ratio of the input vis-à-vis the output, with a balance and 10% margin. On the basis of such finding alone, apart from the requirements of five years, supply should form the basis of MPQ. We may, however, hasten to add that the Central Government in collaboration with the coal companies would be at liberty to evolve a policy which would meet the requirements of public interest vis-à-vis the interest of consumers of coal. They would be entitled to lay down such norms as may be found fit and proper. They would be entitled to fix appropriate norms therefor. In the event, any industrial unit is found to violate the norms, it should be stringently dealt with. 16. It is stated by the learned Additional Solicitor General appearing on behalf of the Union of India that pursuant to the said direction, a Committee has been constituted and it is expected that a report would be submitted within a few weeks. It is, however, not necessary for us to consider that aspect of the matter. Mr. Anip Sachthey, learned counsel appearing on behalf of the appellant inter-alia would submit that the High Court committed a manifest error in issuing a Writ of Mandamus directing the appellant to transfer the linkage of coal from BCCL to the CCL Drawing our attention to the report of the Committee, it was submitted that keeping in view the shortage of coal faced by Central Coalfields Ltd., such a direction would cause enormous difficulties in working out of the linkage system itself. It was further submitted that even on fact, the respondent cannot be said to have a good case as from Bahri, the distance of the collieries belonging to Central Coalfields Ltd. and Bharat Coking Coal Ltd. are almost same. 17. Mr. P.P. Rao, learned senior counsel appearing on behalf of the respondent, on the other hand, submitted; (i) In view of the No Objection granted by CCL, it is not now permissible for the appellant to suggest that supply of coal from Central Coalfields Ltd. would cause enormous difficulty to it. (ii) Having regard to the clear representation made by the Coal India Ltd., in its advertisement of 1987 as also the minutes of meeting held on 17.11.1993 pursuant whereto and in furtherance whereof, the appellant altered its position by investing a huge amount by setting up its industry of smokeless fuel, the doctrine of promissory estoppel shall apply in the instant case. (iii) In the light of the provisional decision taken by CIL in the matter of grant of supply of coal i.e. 50% from BCCL and 50% from CLL, the High Court cannot be said to have exceeded its jurisdiction in directing the appellant to take a final decision in the matter having regard to the immense difficulties which are being faced by the respondent as also the financial implication attaching thereto. (iv) Appellant being a State within the meaning of Article 12 of the Constitution of India was enjoined with a duty to exercise its jurisdiction in a reasonable manner (v) When an opportunity had been granted to a State to correct an error in the matter of exercise of its discretionary jurisdiction, the High Court in a given case may issue a Writ of Mandamus also. 18. In M/s. Ashoka Smokeless (supra), this Court has in details discussed the validity or otherwise of the linkage scheme vis-à-vis the changed policy decision of the Coal India Ltd. for selling coal on e-Auction. While arriving at the said decision, this Court has also taken into consideration various aspects of the matter including applicability of the doctrine of promissory estoppel in a case of this nature. 19. The question, however, is whether in a case of this nature and particularly having regard to the subsequent materials which have been brought on records, the respondent was entitled to the reliefs prayed for by it or not. 20. We have noticed hereinbefore the orders passed by the learned Single Judge from time to time. Whereas The entitlement of the entrepreneur must be traced to the policy decision of the Coal India Ltd. and the directions issued by the Central Government from time to time in exercise of its power under Clause 6 of the Coal Control Order, 2000, the respondent also was required to make necessary averments therefore in its writ petition as to how it had derived a legal right in regard to transfer of linkage. The pleadings of the parties are not before us. We have noticed hereinbefore that certain subsequent events have also taken place. Even if the respondent becomes entitled to the reliefs prayed for herein, an opportunity in that behalf is required to be given to the appellant also. Respondent has raised before us questions of discrimination which is also required to be gone into. One of the questions which would thus, arise for consideration would be as to whether the CILs policy decision would be covered by the earlier policy decision having regard to the doctrine promissory estoppel. 21. Several other factors as noticed hereinbefore have been brought on record in the light of the inspection report submitted before this Court. It is not possible for us to go into the said question particularly in view of the fact that the pleadings of the parties are not before us. 22. We, therefore, are of the opinion that interest of justice shall be sub served if the High Court is directed to consider the matter afresh. The parties shall be entitled to file additional affidavits in the writ proceeding. Respondent may in view of the subsequent events amend its writ petition. | 1[ds]We, therefore, are of the opinion that interest of justice shall be sub served if the High Court is directed to consider the matter afresh. The parties shall be entitled to file additional affidavits in the writ proceeding. Respondent may in view of the subsequent events amend its writ petition. In such an event, the High Court would not only consider the matter from the perspective of the original prayer made in the writ petition, but also the reliefs which may be found to be available to the respondent in view of the subsequent events including the Report of the Inspection Committee. Till an appropriate order is passed by the High Court, status quo as obtaining today in regard to supply of coal shall continue. As the matters are being remitted to the High Court, we do not intend to pass any separate order in the contempt petition18. In M/s. Ashoka Smokeless (supra), this Court has in details discussed the validity or otherwise of the linkage schemes the changed policy decision of the Coal India Ltd. for selling coal on. While arriving at the said decision, this Court has also taken into consideration various aspects of the matter including applicability of the doctrine of promissory estoppel in a case of this nature19. The question, however, is whether in a case of this nature and particularly having regard to the subsequent materials which have been brought on records, the respondent was entitled to the reliefs prayed for by it or notl other factors as noticed hereinbefore have been brought on record in the light of the inspection report submitted before this Court. It is not possible for us to go into the said question particularly in view of the fact that the pleadings of the parties are not before us, therefore, are of the opinion that interest of justice shall be sub served if the High Court is directed to consider the matter afresh. The parties shall be entitled to file additional affidavits in the writ proceeding. Respondent may in view of the subsequent events amend its writ petition. | 1 | 4,166 | 380 | ### 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:
India with the Secretary of Coal being the Chairman. In such a committee, a technical expert in coal should also be associated as most of the projects involve consumers of coal, particularly manufacturers of hard coke and smokeless fuel. In our opinion, it may not be difficult to find out, having regard to the technologies used therein as regards the ratio of the input vis-à-vis the output, with a balance and 10% margin. On the basis of such finding alone, apart from the requirements of five years, supply should form the basis of MPQ. We may, however, hasten to add that the Central Government in collaboration with the coal companies would be at liberty to evolve a policy which would meet the requirements of public interest vis-à-vis the interest of consumers of coal. They would be entitled to lay down such norms as may be found fit and proper. They would be entitled to fix appropriate norms therefor. In the event, any industrial unit is found to violate the norms, it should be stringently dealt with. 16. It is stated by the learned Additional Solicitor General appearing on behalf of the Union of India that pursuant to the said direction, a Committee has been constituted and it is expected that a report would be submitted within a few weeks. It is, however, not necessary for us to consider that aspect of the matter. Mr. Anip Sachthey, learned counsel appearing on behalf of the appellant inter-alia would submit that the High Court committed a manifest error in issuing a Writ of Mandamus directing the appellant to transfer the linkage of coal from BCCL to the CCL Drawing our attention to the report of the Committee, it was submitted that keeping in view the shortage of coal faced by Central Coalfields Ltd., such a direction would cause enormous difficulties in working out of the linkage system itself. It was further submitted that even on fact, the respondent cannot be said to have a good case as from Bahri, the distance of the collieries belonging to Central Coalfields Ltd. and Bharat Coking Coal Ltd. are almost same. 17. Mr. P.P. Rao, learned senior counsel appearing on behalf of the respondent, on the other hand, submitted; (i) In view of the No Objection granted by CCL, it is not now permissible for the appellant to suggest that supply of coal from Central Coalfields Ltd. would cause enormous difficulty to it. (ii) Having regard to the clear representation made by the Coal India Ltd., in its advertisement of 1987 as also the minutes of meeting held on 17.11.1993 pursuant whereto and in furtherance whereof, the appellant altered its position by investing a huge amount by setting up its industry of smokeless fuel, the doctrine of promissory estoppel shall apply in the instant case. (iii) In the light of the provisional decision taken by CIL in the matter of grant of supply of coal i.e. 50% from BCCL and 50% from CLL, the High Court cannot be said to have exceeded its jurisdiction in directing the appellant to take a final decision in the matter having regard to the immense difficulties which are being faced by the respondent as also the financial implication attaching thereto. (iv) Appellant being a State within the meaning of Article 12 of the Constitution of India was enjoined with a duty to exercise its jurisdiction in a reasonable manner (v) When an opportunity had been granted to a State to correct an error in the matter of exercise of its discretionary jurisdiction, the High Court in a given case may issue a Writ of Mandamus also. 18. In M/s. Ashoka Smokeless (supra), this Court has in details discussed the validity or otherwise of the linkage scheme vis-à-vis the changed policy decision of the Coal India Ltd. for selling coal on e-Auction. While arriving at the said decision, this Court has also taken into consideration various aspects of the matter including applicability of the doctrine of promissory estoppel in a case of this nature. 19. The question, however, is whether in a case of this nature and particularly having regard to the subsequent materials which have been brought on records, the respondent was entitled to the reliefs prayed for by it or not. 20. We have noticed hereinbefore the orders passed by the learned Single Judge from time to time. Whereas The entitlement of the entrepreneur must be traced to the policy decision of the Coal India Ltd. and the directions issued by the Central Government from time to time in exercise of its power under Clause 6 of the Coal Control Order, 2000, the respondent also was required to make necessary averments therefore in its writ petition as to how it had derived a legal right in regard to transfer of linkage. The pleadings of the parties are not before us. We have noticed hereinbefore that certain subsequent events have also taken place. Even if the respondent becomes entitled to the reliefs prayed for herein, an opportunity in that behalf is required to be given to the appellant also. Respondent has raised before us questions of discrimination which is also required to be gone into. One of the questions which would thus, arise for consideration would be as to whether the CILs policy decision would be covered by the earlier policy decision having regard to the doctrine promissory estoppel. 21. Several other factors as noticed hereinbefore have been brought on record in the light of the inspection report submitted before this Court. It is not possible for us to go into the said question particularly in view of the fact that the pleadings of the parties are not before us. 22. We, therefore, are of the opinion that interest of justice shall be sub served if the High Court is directed to consider the matter afresh. The parties shall be entitled to file additional affidavits in the writ proceeding. Respondent may in view of the subsequent events amend its writ petition.
### Response:
1
### Explanation:
We, therefore, are of the opinion that interest of justice shall be sub served if the High Court is directed to consider the matter afresh. The parties shall be entitled to file additional affidavits in the writ proceeding. Respondent may in view of the subsequent events amend its writ petition. In such an event, the High Court would not only consider the matter from the perspective of the original prayer made in the writ petition, but also the reliefs which may be found to be available to the respondent in view of the subsequent events including the Report of the Inspection Committee. Till an appropriate order is passed by the High Court, status quo as obtaining today in regard to supply of coal shall continue. As the matters are being remitted to the High Court, we do not intend to pass any separate order in the contempt petition18. In M/s. Ashoka Smokeless (supra), this Court has in details discussed the validity or otherwise of the linkage schemes the changed policy decision of the Coal India Ltd. for selling coal on. While arriving at the said decision, this Court has also taken into consideration various aspects of the matter including applicability of the doctrine of promissory estoppel in a case of this nature19. The question, however, is whether in a case of this nature and particularly having regard to the subsequent materials which have been brought on records, the respondent was entitled to the reliefs prayed for by it or notl other factors as noticed hereinbefore have been brought on record in the light of the inspection report submitted before this Court. It is not possible for us to go into the said question particularly in view of the fact that the pleadings of the parties are not before us, therefore, are of the opinion that interest of justice shall be sub served if the High Court is directed to consider the matter afresh. The parties shall be entitled to file additional affidavits in the writ proceeding. Respondent may in view of the subsequent events amend its writ petition.
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New India Assurance Co. Ltd Vs. A.K. Saxena | 1. Leave granted. 2. This Appeal is against a judgment of the High Court dated 3rd April, 2002. Briefly stated the facts are that the respondent was an advocate on panel of the appellants. As such a number of matters used to be assigned to him. It appears that some dispute arose between the appellants and the respondent as a result of which the respondent was asked to return all papers. the respondent was willing to return the papers provided that all his fees were paid. 3. It appears that when Appeal from Order No. 24 of 1999 was on the Board of the High Court, the respondent moved an application before the High Court saying that he has been asked to return the files and therefore he may be discharged on payment of his full fees. On such application, the High Court relying on earlier judgments passed the following order: In view of the above decisions of this Court, the application of Sri A.K. Saxena is allowed and he is granted leave for being discharge as counsel for the appellant. However, the appellant New India Assurance Co. Ltd., shall pay his full fees. On payment of full fees, he will immediately return the files as required by the appellant Company in letter, Annexure 2. 4. After this appeal was filed, by an order dated 9th October, 2003, this Court directed the respondent to return all the files. We are informed that all the files have been returned. 5. Learned counsel for the respondent insists that full fees for all the matters must be paid to him. Learned senor counsel for the appellants states that no fees is payable to the respondent. In our view, it is not for this Court, as it was not for the High Court, to adjudicate upon such a disputed question of fact. The High Court should not have given the directions it did also because at the time the High Court passed the impugned order, a writ petition No. 27380 of 2001 was pending. in this writ petition the respondent had claimed payment of his fees. 6. This case is fully covered by a decision of this Court in R.D. Saxena vs. Balram Prasad Sharma reported in (2000) 7 SCC 264 wherein this Court has held that advocates have no lien over the papers of their clients. It is held that at the most the advocate may resort to legal remedies for unpaid remuneration. It has been held that the right of the litigant to have the files returned to him is a corresponding counterpart of the professional duty of the advocate and that dispute regarding fees would be a lis to be decided in an appropriate proceeding in Court. | 1[ds]In our view, it is not for this Court, as it was not for the High Court, to adjudicate upon such a disputed question of fact. The High Court should not have given the directions it did also because at the time the High Court passed the impugned order, a writ petition No. 27380 of 2001 was pending. in this writ petition the respondent had claimed payment of his fees6. This case is fully covered by a decision of this Court in R.D. Saxena vs. Balram Prasad Sharma reported in (2000) 7 SCC 264 wherein this Court has held that advocates have no lien over the papers of their clients. It is held that at the most the advocate may resort to legal remedies for unpaid remuneration. It has been held that the right of the litigant to have the files returned to him is a corresponding counterpart of the professional duty of the advocate and that dispute regarding fees would be a lis to be decided in an appropriate proceeding in Court. | 1 | 504 | 191 | ### 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. Leave granted. 2. This Appeal is against a judgment of the High Court dated 3rd April, 2002. Briefly stated the facts are that the respondent was an advocate on panel of the appellants. As such a number of matters used to be assigned to him. It appears that some dispute arose between the appellants and the respondent as a result of which the respondent was asked to return all papers. the respondent was willing to return the papers provided that all his fees were paid. 3. It appears that when Appeal from Order No. 24 of 1999 was on the Board of the High Court, the respondent moved an application before the High Court saying that he has been asked to return the files and therefore he may be discharged on payment of his full fees. On such application, the High Court relying on earlier judgments passed the following order: In view of the above decisions of this Court, the application of Sri A.K. Saxena is allowed and he is granted leave for being discharge as counsel for the appellant. However, the appellant New India Assurance Co. Ltd., shall pay his full fees. On payment of full fees, he will immediately return the files as required by the appellant Company in letter, Annexure 2. 4. After this appeal was filed, by an order dated 9th October, 2003, this Court directed the respondent to return all the files. We are informed that all the files have been returned. 5. Learned counsel for the respondent insists that full fees for all the matters must be paid to him. Learned senor counsel for the appellants states that no fees is payable to the respondent. In our view, it is not for this Court, as it was not for the High Court, to adjudicate upon such a disputed question of fact. The High Court should not have given the directions it did also because at the time the High Court passed the impugned order, a writ petition No. 27380 of 2001 was pending. in this writ petition the respondent had claimed payment of his fees. 6. This case is fully covered by a decision of this Court in R.D. Saxena vs. Balram Prasad Sharma reported in (2000) 7 SCC 264 wherein this Court has held that advocates have no lien over the papers of their clients. It is held that at the most the advocate may resort to legal remedies for unpaid remuneration. It has been held that the right of the litigant to have the files returned to him is a corresponding counterpart of the professional duty of the advocate and that dispute regarding fees would be a lis to be decided in an appropriate proceeding in Court.
### Response:
1
### Explanation:
In our view, it is not for this Court, as it was not for the High Court, to adjudicate upon such a disputed question of fact. The High Court should not have given the directions it did also because at the time the High Court passed the impugned order, a writ petition No. 27380 of 2001 was pending. in this writ petition the respondent had claimed payment of his fees6. This case is fully covered by a decision of this Court in R.D. Saxena vs. Balram Prasad Sharma reported in (2000) 7 SCC 264 wherein this Court has held that advocates have no lien over the papers of their clients. It is held that at the most the advocate may resort to legal remedies for unpaid remuneration. It has been held that the right of the litigant to have the files returned to him is a corresponding counterpart of the professional duty of the advocate and that dispute regarding fees would be a lis to be decided in an appropriate proceeding in Court.
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Commissioner of Income Tax, West Bengal Vs. Jalan Investment Private Limited | Apart from the question of such an appropriation being made with the specific purpose of defeating the application of section 23A, it must be stated that the appropriation of the income of the Co. by the company itself or its creditors is a fact in the nature of application of such income. It is not, therefore, open for an assessee to say that as the entire income has been applied towards the liquidation of some liabilities the provisions of section 23A do not therefore have any application. Once profits have been made it is immaterial how they have been applied or appropriated by the company or its creditors."3. The assessee filed an appeal before the Appellate Assistant Commissioner but without any success. He held that the submission of the assessee that it "did not receive the dividend of Rs. 2, 75, 840 in this accounting year and secondly, it did not receive the dividend at all since it was appropriated by the company erstwhile managing agent and creditor" were entirely irrelevant to section 23A.4. The assessee then took the matter to the Income-tax Appellate Tribunal. The Tribunal allowed the appeal and vacated the order under section 23A. The Appellate Tribunal, after setting out the facts, observed:"The question, therefore, is as we have stated above, as to whether the fictional or notional receipts could be taken into account for passing orders under section 23A on the company."The Appellate Tribunal apparently treated the dividend of Rs. 2, 75, 840 declared as being fictional or notional receipt. The Tribunal then considered the decisions of this court in Commissioner of Income-tax v. Bipinchandra Maganlal & Co., Indra Singh & Sons Ltd. v. Commissioner of Income-tax and George N. Houry v. Commissioner of Income-tax. Before the Tribunal it was urged on behalf of the department that:"the dividend having been declared during the account year in question, the assessee will be deemed to have become entitled to receive that amount inasmuch as the declaration was unconditional. The assessee could even sue the company for realisation of the dividend declared. In that view of the matter. . . .since a declaration is made, the dividend no more remains a deemed income but becomes an actuality."The Appellate Tribunal repelled these arguments by observing:"We will dismiss it in one word by saying that such dividend as is the one in the case in question has been treated as deemed or fictional income under the Income-tax Act itself and therefore the submission by the department representative, in our opinion, goes against the Act itself, which certainly cannot be permitted."The Tribunal finally concluded thus"A mere declaration of dividend, in our opinion, does not stand the test inasmuch as although a declaration might have been made still it might not be the property of the trader to be included in the calculation of its commercial profits. We will only add that in saying so we have not taken into consideration the fact that a major portion of the declared dividends in the assessees favour had been appropriated at source by the assessees creditors."5. The Commissioner of Income-tax, West Bengal, then applied under section 66(1) of the Act and prayed that a statement of the case be drawn up and the following question referred to the High Court:"Whether, on the facts and in the circumstances of the case, the amount of dividends declared in favour of the assessee was rightly taken into consideration by the Income-tax Officer before passing order against the assessee under section 23A of the Indian Income-tax Act, 1922, as it stood at the material time ?"6. The Appellate Tribunal dismissed the application on the ground that although the question presented before it was no doubt a question of law, but since the same had been decided by this court in the case of Commissioner of Income-tax v. Bipinchandra Maganlal & Co Ltd., the question was merely academic and could not, therefore, be made the subject-matter of reference under section 66(1) of the Act. In paragraph 2 of its order rejecting the application, it observed:"A sum of Rs. 2, 75, 840 was deemed to be the assessees income from dividend by reason of an order passed under section 23A on the company in which the assessee had invested in shares."7. These observations we find difficult to appreciate because it does not seem to be anybodys case that any order under section 23A was passed in respect of the company in which the assessee had invested in shares. Be that as it may, the Appellate Tribunal held that the point at issue had been set at rest by this court in Commissioner of Income-tax v. Bipinchandra Maganlal & Co. Ltd. The Commissioner then applied to the High Court under section 66(2) of the Act but the High Court dismissed the petition. As stated above, apparently the High Court gave no reasons for dismissing the petition. 8. The learned counsel for the appellant contends that the point has not been settled in the decision of this court in Commissioner of Income-tax v. Bipinchandra Maganlal & Co. In our view, with respect, the Appellate Tribunal has not appreciated the judgment of this court in the above case. This court laid down the principles which the Income-tax Officers should observe in passing an order under section 23A of the Act. Nowhere does it deal with the question at issue in the present case, namely, whether dividends distributed by a company in which the assessee held shares was fictional or notional income or whether the assessee, on the facts of the case, should be deemed to have become entitled to receive the amount of dividend as soon as the declaration was made or later.9. In our opinion, the question suggested by the Commissioner arises out of the order of the Appellate Tribunal and accordingly we accept the appeal, set aside the judgment of the High Court and direct the Appellate Tribunal to state the case and refer the question mentioned above to the High Court. | 1[ds]7. These observations we find difficult to appreciate because it does not seem to be anybodys case that any order under section 23A was passed in respect of the company in which the assessee had invested in shares. Be that as it may, the Appellate Tribunal held that the point at issue had been set at rest by this court in Commissioner ofv. Bipinchandra Maganlal & Co. Ltd. The Commissioner then applied to the High Courtunder section 66(2) of the Actbut the High Court dismissed the petition. As stated above, apparently the High Court gave no reasons for dismissing the petition. 8. The learned counsel for the appellant contends that the point has not been settled in the decision of this court in Commissioner ofv. Bipinchandra Maganlal & Co. In our view, with respect, the Appellate Tribunal has not appreciated the judgment of this court in the above case. This court laid down the principles which theOfficers should observe in passing an order under section 23A of the Act. Nowhere does it deal with the question at issue in the present case, namely, whether dividends distributed by a company in which the assessee held shares was fictional or notional income or whether the assessee, on the facts of the case, should be deemed to have become entitled to receive the amount of dividend as soon as the declaration was made or later.9. In our opinion, the question suggested by the Commissioner arises out of the order of the Appellate Tribunal and accordingly we accept the appeal, set aside the judgment of the High Court and direct the Appellate Tribunal to state the case and refer the question mentioned above to the High Court. | 1 | 1,563 | 313 | ### 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:
Apart from the question of such an appropriation being made with the specific purpose of defeating the application of section 23A, it must be stated that the appropriation of the income of the Co. by the company itself or its creditors is a fact in the nature of application of such income. It is not, therefore, open for an assessee to say that as the entire income has been applied towards the liquidation of some liabilities the provisions of section 23A do not therefore have any application. Once profits have been made it is immaterial how they have been applied or appropriated by the company or its creditors."3. The assessee filed an appeal before the Appellate Assistant Commissioner but without any success. He held that the submission of the assessee that it "did not receive the dividend of Rs. 2, 75, 840 in this accounting year and secondly, it did not receive the dividend at all since it was appropriated by the company erstwhile managing agent and creditor" were entirely irrelevant to section 23A.4. The assessee then took the matter to the Income-tax Appellate Tribunal. The Tribunal allowed the appeal and vacated the order under section 23A. The Appellate Tribunal, after setting out the facts, observed:"The question, therefore, is as we have stated above, as to whether the fictional or notional receipts could be taken into account for passing orders under section 23A on the company."The Appellate Tribunal apparently treated the dividend of Rs. 2, 75, 840 declared as being fictional or notional receipt. The Tribunal then considered the decisions of this court in Commissioner of Income-tax v. Bipinchandra Maganlal & Co., Indra Singh & Sons Ltd. v. Commissioner of Income-tax and George N. Houry v. Commissioner of Income-tax. Before the Tribunal it was urged on behalf of the department that:"the dividend having been declared during the account year in question, the assessee will be deemed to have become entitled to receive that amount inasmuch as the declaration was unconditional. The assessee could even sue the company for realisation of the dividend declared. In that view of the matter. . . .since a declaration is made, the dividend no more remains a deemed income but becomes an actuality."The Appellate Tribunal repelled these arguments by observing:"We will dismiss it in one word by saying that such dividend as is the one in the case in question has been treated as deemed or fictional income under the Income-tax Act itself and therefore the submission by the department representative, in our opinion, goes against the Act itself, which certainly cannot be permitted."The Tribunal finally concluded thus"A mere declaration of dividend, in our opinion, does not stand the test inasmuch as although a declaration might have been made still it might not be the property of the trader to be included in the calculation of its commercial profits. We will only add that in saying so we have not taken into consideration the fact that a major portion of the declared dividends in the assessees favour had been appropriated at source by the assessees creditors."5. The Commissioner of Income-tax, West Bengal, then applied under section 66(1) of the Act and prayed that a statement of the case be drawn up and the following question referred to the High Court:"Whether, on the facts and in the circumstances of the case, the amount of dividends declared in favour of the assessee was rightly taken into consideration by the Income-tax Officer before passing order against the assessee under section 23A of the Indian Income-tax Act, 1922, as it stood at the material time ?"6. The Appellate Tribunal dismissed the application on the ground that although the question presented before it was no doubt a question of law, but since the same had been decided by this court in the case of Commissioner of Income-tax v. Bipinchandra Maganlal & Co Ltd., the question was merely academic and could not, therefore, be made the subject-matter of reference under section 66(1) of the Act. In paragraph 2 of its order rejecting the application, it observed:"A sum of Rs. 2, 75, 840 was deemed to be the assessees income from dividend by reason of an order passed under section 23A on the company in which the assessee had invested in shares."7. These observations we find difficult to appreciate because it does not seem to be anybodys case that any order under section 23A was passed in respect of the company in which the assessee had invested in shares. Be that as it may, the Appellate Tribunal held that the point at issue had been set at rest by this court in Commissioner of Income-tax v. Bipinchandra Maganlal & Co. Ltd. The Commissioner then applied to the High Court under section 66(2) of the Act but the High Court dismissed the petition. As stated above, apparently the High Court gave no reasons for dismissing the petition. 8. The learned counsel for the appellant contends that the point has not been settled in the decision of this court in Commissioner of Income-tax v. Bipinchandra Maganlal & Co. In our view, with respect, the Appellate Tribunal has not appreciated the judgment of this court in the above case. This court laid down the principles which the Income-tax Officers should observe in passing an order under section 23A of the Act. Nowhere does it deal with the question at issue in the present case, namely, whether dividends distributed by a company in which the assessee held shares was fictional or notional income or whether the assessee, on the facts of the case, should be deemed to have become entitled to receive the amount of dividend as soon as the declaration was made or later.9. In our opinion, the question suggested by the Commissioner arises out of the order of the Appellate Tribunal and accordingly we accept the appeal, set aside the judgment of the High Court and direct the Appellate Tribunal to state the case and refer the question mentioned above to the High Court.
### Response:
1
### Explanation:
7. These observations we find difficult to appreciate because it does not seem to be anybodys case that any order under section 23A was passed in respect of the company in which the assessee had invested in shares. Be that as it may, the Appellate Tribunal held that the point at issue had been set at rest by this court in Commissioner ofv. Bipinchandra Maganlal & Co. Ltd. The Commissioner then applied to the High Courtunder section 66(2) of the Actbut the High Court dismissed the petition. As stated above, apparently the High Court gave no reasons for dismissing the petition. 8. The learned counsel for the appellant contends that the point has not been settled in the decision of this court in Commissioner ofv. Bipinchandra Maganlal & Co. In our view, with respect, the Appellate Tribunal has not appreciated the judgment of this court in the above case. This court laid down the principles which theOfficers should observe in passing an order under section 23A of the Act. Nowhere does it deal with the question at issue in the present case, namely, whether dividends distributed by a company in which the assessee held shares was fictional or notional income or whether the assessee, on the facts of the case, should be deemed to have become entitled to receive the amount of dividend as soon as the declaration was made or later.9. In our opinion, the question suggested by the Commissioner arises out of the order of the Appellate Tribunal and accordingly we accept the appeal, set aside the judgment of the High Court and direct the Appellate Tribunal to state the case and refer the question mentioned above to the High Court.
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Messrs Jaipur Mineral Development Syndicate, Jaipur Vs. Commissioner of Income Tax, New Delhi | that it had become functus officio to entertain the application because of its earlier order declining to answer the reference. It is this order which is the subject-matter of the appeal. 4. We have heard Mr. Desai on behalf of the appellant and Mr. Manchanda on behalf of the revenue. Mr. Manchanda has brought to our notice a decision of the Calcutta High Court in M. M. Ispahani Ltd., Calcutta v. Commissioner of Excess Profits Tax, West Bengal [(1955) 27 ITR 188 (Cal)] wherein the High Court held that when a party at whose instance the reference had been made under Section 66(1) of the Indian Income-tax Act, 1922 does not appear at the hearing of the reference, the High Court is not bound to answer the question referred to it and should not do so. It is urged by Mr. Manchanda that the above decision has been followed by some of the other High Courts. As against that, Mr. Desai on behalf of the appellant has urged that the correctness of those decisions is open to question in view of the decision of this Court in the case of Commissioner of Income-tax, Madras v. S. Chenniappa Mudaliar [(1969) 74 ITR 41 : (1969) 1 SCC 591 ]. It was held by this Court in that case that an appeal filed by the assessee before the tribunal under Section 33 of the Act should be disposed of on merits and should not be dismissed in default because of non-appearance of the appellant. The Court in this context referred to Section 33(4) of the Act and particularly the word "therein" used in that sub-section. It is urged by Mr. Desai that as the tribunal is bound to dispose of the appeal on merits even though a party is not present, likewise the High Court when a question of law is referred to it, should dispose of the reference on merits and answer the question referred to it. In our opinion, it is not essential to express an opinion about this aspect of the matter, because we are of the opinion that the High Court was not functus officio in entertaining the application which had been filed on behalf of the appellant for rehearing the reference and disposing of the matter on merits. 5. A party or its counsel may be prevented from appearing at the hearing of a reference for a variety of reasons. In case such a party shows, subsequent to the order made by the High Court, declining to answer the reference, that there was sufficient reason for its non-appearance, the High Court, in our opinion, has the inherent power to recall its earlier order and dispose of the reference on merits. We find it difficult to subscribe to the view that whatever might be the ground for non-appearance of a party, the High Court having once passed an order declining to answer the question referred to it because of the non-appearance of that party, is functus officio or helpless and cannot pass an order for disposing of the reference on merits. The High Court in suitable cases has, as already mentioned, inherent power to recall the order made in the absence of the party and to dispose of the reference on merits. There is nothing in any of the provisions of the Act which, either expressly or by necessary implication, stands in the way of the High Court from passing an order for disposal of the reference on merits. The courts have power, in the absence of any express or implied prohibition, to pass an order as may be necessary for the ends of justice or to prevent the abuse of the process of the court. To hold otherwise would result in quite a number of cases in gross miscarriage of justice. Suppose, for instance, a party proceeds towards the High Court to be present at the time the reference is to be taken up for hearing and on the way meets with an accident. Suppose, further, in such an event the High Court passes an order declining to answer the question referred to it because of the absence of the person who meets with an accident. To hold that in such a case the High Court cannot recall the said order and pass an order for the disposal of the reference on merits, even though full facts are brought to the notice of the High Court, would result in obvious miscarriage of justice. It is to meet such situations that courts can exercise in appropriate cases inherent power. In exercising inherent power, the courts cannot override the express provisions of law. Where however, as in the present case, there is no express or implied prohibition to recalling an earlier order made because of the absence of the party and to directing the disposal of the reference on merits, the courts, in our opinion, should not be loath to exercise such power provided the party concerned approaches the court with due diligence and shows sufficient cause for its non-appearance in the date of hearing. 6. Our attention has been invited to the decision of the Allahabad High Court in Roop Narain Ramchandra (P) Ltd. v. Commissioner of Income-tax, U.P. [(1972) 84 ITR 181 (All) ] wherein the High Court held that it has no power to recall an order returning a reference unanswered. For the reasons stated above, we are unable to agree with the view taken by the Allahabad High Court in that decision. The facts brought out in the application filed on behalf of the appellant show, in our opinion, that there was sufficient cause for the non-appearance on behalf of the appellant on the date of hearing as well as for the non-filing of the paper books within time. It also cannot be said that there was lack of diligence on the part of the appellant in approaching the High Court for recalling its earlier order and for disposing of the reference on merits. 7. | 1[ds]Suppose, further, in such an event the High Court passes an order declining to answer the question referred to it because of the absence of the person who meets with an accident. To hold that in such a case the High Court cannot recall the said order and pass an order for the disposal of the reference on merits, even though full facts are brought to the notice of the High Court, would result in obvious miscarriage of justice. It is to meet such situations that courts can exercise in appropriate cases inherent power. In exercising inherent power, the courts cannot override the express provisions of law. Where however, as in the present case, there is no express or implied prohibition to recalling an earlier order made because of the absence of the party and to directing the disposal of the reference on merits, the courts, in our opinion, should not be loath to exercise such power provided the party concerned approaches the court with due diligence and shows sufficient cause for itse in the date of hearingWe find it difficult to subscribe to the view that whatever might be the ground fore of a party, the High Court having once passed an order declining to answer the question referred to it because of thee of that party, is functus officio or helpless and cannot pass an order for disposing of the reference on merits. The High Court in suitable cases has, as already mentioned, inherent power to recall the order made in the absence of the party and to dispose of the reference on merits. There is nothing in any of the provisions of the Act which, either expressly or by necessary implication, stands in the way of the High Court from passing an order for disposal of the reference on merits. The courts have power, in the absence of any express or implied prohibition, to pass an order as may be necessary for the ends of justice or to prevent the abuse of the process of the court. To hold otherwise would result in quite a number of cases in gross miscarriage of justice. Suppose, for instance, a party proceeds towards the High Court to be present at the time the reference is to be taken up for hearing and on the way meets with an accident.Suppose, further, in such an event the High Court passes an order declining to answer the question referred to it because of the absence of the person who meets with an accident. To hold that in such a case the High Court cannot recall the said order and pass an order for the disposal of the reference on merits, even though full facts are brought to the notice of the High Court, would result in obvious miscarriage of justice. It is to meet such situations that courts can exercise in appropriate cases inherent power. In exercising inherent power, the courts cannot override the express provisions of law. Where however, as in the present case, there is no express or implied prohibition to recalling an earlier order made because of the absence of the party and to directing the disposal of the reference on merits, the courts, in our opinion, should not be loath to exercise such power provided the party concerned approaches the court with due diligence and shows sufficient cause for itse in the date of hearingFor the reasons stated above, we are unable to agree with the view taken by the Allahabad High Court in that decision. The facts brought out in the application filed on behalf of the appellant show, in our opinion, that there was sufficient cause for thee on behalf of the appellant on the date of hearing as well as for theg of the paper books within time. It also cannot be said that there was lack of diligence on the part of the appellant in approaching the High Court for recalling its earlier order and for disposing of the reference on merits. | 1 | 1,721 | 726 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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that it had become functus officio to entertain the application because of its earlier order declining to answer the reference. It is this order which is the subject-matter of the appeal. 4. We have heard Mr. Desai on behalf of the appellant and Mr. Manchanda on behalf of the revenue. Mr. Manchanda has brought to our notice a decision of the Calcutta High Court in M. M. Ispahani Ltd., Calcutta v. Commissioner of Excess Profits Tax, West Bengal [(1955) 27 ITR 188 (Cal)] wherein the High Court held that when a party at whose instance the reference had been made under Section 66(1) of the Indian Income-tax Act, 1922 does not appear at the hearing of the reference, the High Court is not bound to answer the question referred to it and should not do so. It is urged by Mr. Manchanda that the above decision has been followed by some of the other High Courts. As against that, Mr. Desai on behalf of the appellant has urged that the correctness of those decisions is open to question in view of the decision of this Court in the case of Commissioner of Income-tax, Madras v. S. Chenniappa Mudaliar [(1969) 74 ITR 41 : (1969) 1 SCC 591 ]. It was held by this Court in that case that an appeal filed by the assessee before the tribunal under Section 33 of the Act should be disposed of on merits and should not be dismissed in default because of non-appearance of the appellant. The Court in this context referred to Section 33(4) of the Act and particularly the word "therein" used in that sub-section. It is urged by Mr. Desai that as the tribunal is bound to dispose of the appeal on merits even though a party is not present, likewise the High Court when a question of law is referred to it, should dispose of the reference on merits and answer the question referred to it. In our opinion, it is not essential to express an opinion about this aspect of the matter, because we are of the opinion that the High Court was not functus officio in entertaining the application which had been filed on behalf of the appellant for rehearing the reference and disposing of the matter on merits. 5. A party or its counsel may be prevented from appearing at the hearing of a reference for a variety of reasons. In case such a party shows, subsequent to the order made by the High Court, declining to answer the reference, that there was sufficient reason for its non-appearance, the High Court, in our opinion, has the inherent power to recall its earlier order and dispose of the reference on merits. We find it difficult to subscribe to the view that whatever might be the ground for non-appearance of a party, the High Court having once passed an order declining to answer the question referred to it because of the non-appearance of that party, is functus officio or helpless and cannot pass an order for disposing of the reference on merits. The High Court in suitable cases has, as already mentioned, inherent power to recall the order made in the absence of the party and to dispose of the reference on merits. There is nothing in any of the provisions of the Act which, either expressly or by necessary implication, stands in the way of the High Court from passing an order for disposal of the reference on merits. The courts have power, in the absence of any express or implied prohibition, to pass an order as may be necessary for the ends of justice or to prevent the abuse of the process of the court. To hold otherwise would result in quite a number of cases in gross miscarriage of justice. Suppose, for instance, a party proceeds towards the High Court to be present at the time the reference is to be taken up for hearing and on the way meets with an accident. Suppose, further, in such an event the High Court passes an order declining to answer the question referred to it because of the absence of the person who meets with an accident. To hold that in such a case the High Court cannot recall the said order and pass an order for the disposal of the reference on merits, even though full facts are brought to the notice of the High Court, would result in obvious miscarriage of justice. It is to meet such situations that courts can exercise in appropriate cases inherent power. In exercising inherent power, the courts cannot override the express provisions of law. Where however, as in the present case, there is no express or implied prohibition to recalling an earlier order made because of the absence of the party and to directing the disposal of the reference on merits, the courts, in our opinion, should not be loath to exercise such power provided the party concerned approaches the court with due diligence and shows sufficient cause for its non-appearance in the date of hearing. 6. Our attention has been invited to the decision of the Allahabad High Court in Roop Narain Ramchandra (P) Ltd. v. Commissioner of Income-tax, U.P. [(1972) 84 ITR 181 (All) ] wherein the High Court held that it has no power to recall an order returning a reference unanswered. For the reasons stated above, we are unable to agree with the view taken by the Allahabad High Court in that decision. The facts brought out in the application filed on behalf of the appellant show, in our opinion, that there was sufficient cause for the non-appearance on behalf of the appellant on the date of hearing as well as for the non-filing of the paper books within time. It also cannot be said that there was lack of diligence on the part of the appellant in approaching the High Court for recalling its earlier order and for disposing of the reference on merits. 7.
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1
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Suppose, further, in such an event the High Court passes an order declining to answer the question referred to it because of the absence of the person who meets with an accident. To hold that in such a case the High Court cannot recall the said order and pass an order for the disposal of the reference on merits, even though full facts are brought to the notice of the High Court, would result in obvious miscarriage of justice. It is to meet such situations that courts can exercise in appropriate cases inherent power. In exercising inherent power, the courts cannot override the express provisions of law. Where however, as in the present case, there is no express or implied prohibition to recalling an earlier order made because of the absence of the party and to directing the disposal of the reference on merits, the courts, in our opinion, should not be loath to exercise such power provided the party concerned approaches the court with due diligence and shows sufficient cause for itse in the date of hearingWe find it difficult to subscribe to the view that whatever might be the ground fore of a party, the High Court having once passed an order declining to answer the question referred to it because of thee of that party, is functus officio or helpless and cannot pass an order for disposing of the reference on merits. The High Court in suitable cases has, as already mentioned, inherent power to recall the order made in the absence of the party and to dispose of the reference on merits. There is nothing in any of the provisions of the Act which, either expressly or by necessary implication, stands in the way of the High Court from passing an order for disposal of the reference on merits. The courts have power, in the absence of any express or implied prohibition, to pass an order as may be necessary for the ends of justice or to prevent the abuse of the process of the court. To hold otherwise would result in quite a number of cases in gross miscarriage of justice. Suppose, for instance, a party proceeds towards the High Court to be present at the time the reference is to be taken up for hearing and on the way meets with an accident.Suppose, further, in such an event the High Court passes an order declining to answer the question referred to it because of the absence of the person who meets with an accident. To hold that in such a case the High Court cannot recall the said order and pass an order for the disposal of the reference on merits, even though full facts are brought to the notice of the High Court, would result in obvious miscarriage of justice. It is to meet such situations that courts can exercise in appropriate cases inherent power. In exercising inherent power, the courts cannot override the express provisions of law. Where however, as in the present case, there is no express or implied prohibition to recalling an earlier order made because of the absence of the party and to directing the disposal of the reference on merits, the courts, in our opinion, should not be loath to exercise such power provided the party concerned approaches the court with due diligence and shows sufficient cause for itse in the date of hearingFor the reasons stated above, we are unable to agree with the view taken by the Allahabad High Court in that decision. The facts brought out in the application filed on behalf of the appellant show, in our opinion, that there was sufficient cause for thee on behalf of the appellant on the date of hearing as well as for theg of the paper books within time. It also cannot be said that there was lack of diligence on the part of the appellant in approaching the High Court for recalling its earlier order and for disposing of the reference on merits.
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Commissioner of Income Tax, A.P Vs. C.P. Sarathy Mudaliar | so, the Tribunal did not go into that question. In fact, as can be gathered from the case stated, the contention of the assessee before the Tribunal was that the loan, in question was borrowed for the benefit of another company. But the Tribunal did not go into that question. Under these circumstances, the High Court, in our opinion, was right in not going into that question because on the facts found by the Tribunal it was not possible to decide that contention 5. The only surviving question is whether a loan advanced by a company to a Hindu undivided family, which is the real owner of the shares, can be considered as a loan advanced to its shareholder. It is well-settled that a Hindu undivided family cannot be a shareholder of a company. The shareholder of a company is the individual who is registered as the shareholder in the books of the company. The Hindu undivided family, the assessee in this case, was not registered as a shareholder in the books of the company nor could it have been so registered. Hence, there is no gainsaying the fact that the Hindu undivided family was not the shareholder of the company. Mr. Sen did not contend otherwiseSection 2(6A)(e) gives an artificial definition of " dividend ". It does not take in dividend actually declared or received. The dividend taken note of by that provision is a deemed dividend and not a real dividend. The loan granted to a shareholder has to be returned to the company. It does not become the income of the shareholder. For certain purposes, the legislature has deemed such a loan as " dividend ". Hence, section 2(6A)(e) must necessarily receive a strict construction. When section 2(6A)(e) speaks of " shareholder ", it refers to the registered shareholder and not to the beneficial owner. The Hindu undivided family cannot be considered as a shareholder either under section 2(6A)(e) or under section 23A or under section 16(2) read with section 18(5) of the Act. Hence a loan given to a Hindu undivided family cannot be considered as a loan advanced to a " shareholder " of a company 6. Our conclusion in this regard receives support from the decisions of this court. In Howrah Trading Ltd. Co. v. Commissioner of Income-tax, this court had to examine the case of a person who had purchased shares of a company under a blank transfer. but in whose name the shares had not been registered in the books of the company. The question was whether he could be considered as a " shareholder " in respect of such shares for the purpose of section 18(5) of the Act, because of his equitable right to the dividend on such shares and, therefore, entitled to have that dividend grossed up under section 16(2) by addition of income-tax paid by the company in respect of those shares and claim credit for the tax deducted at the source. This court held that he cannot be considered as a " shareholder ", the reason being that he had not been registered as a shareholder 7. In Commissioner of Income-tax v. Shakuntala, a Hindu undivided family which was the beneficiary of certain shares in a company in which the public were not substantially interested held those shares in the names of different members of the family. The Income-tax Officer applied the provisions of section 23A of the Act. (before its amendment in 1955) and passed an order that the undistributed portion of the distributable income of the company shall be deemed to be distributed, and the amount appropriate to the shares of the family were sought to be included, in the income of the family. In that case again this court ruled that the word " shareholder " in section 23A meant the shareholder registered in the books of the company and the amount appropriate to the shares had to be included in the incomes of the members of the family, in whose names the shares stood in the register of the company ; and as the Hindu undivided family was not a registered shareholder of the company, that amount could not be considered as the income of the family under section 23AFrom the above decisions it is clear that when the Act speaks of the " shareholder ", it refers to the registered shareholder 8. Mr. Sen contended that the above two decisions cannot be considered to have laid down the law correctly in view of the decision of this court in Kishanchand Lunidasingh Bajaj v. Commissioner of Income-tax. Therein the question was whether a Hindu undivided family could be charged to tax in respect of dividends received by some of the coparceners of that family in respect of shares held by them, those shares having been purchased from out of the family funds. This court ruled that the dividends paid to the shareholders was the income of the family and, that being so, the same was assessable in the hands of the Hindu undivided family. We see no conflict between this decision and the decisions earlier referred to. In the case of actual receipt of dividends there is a receipt of income. That income is received on behalf of the family. Hence, the same was assessable in the hands of the family. In the case of deemed dividends under section 2(6A)(e) the family does not get any income at all. The dividend referred to by that provision is only a deemed dividend and not a real dividend. Hence, no income is either received by the family or accrued to it. Therefore, only the person who is deemed to have received that income can be assessed in respect of that income 9. Coming to the facts of the present case, the loans advanced to shareholders alone can be deemed as dividends. No loans had been advanced to shareholders as seen earlier. Hence, the shareholders did not get any income. Hence, section 2(6A)(e) became inapplicable. 10. | 0[ds]In fact, as can be gathered from the case stated, the contention of the assessee before the Tribunal was that the loan, in question was borrowed for the benefit of another company. But the Tribunal did not go into that question. Under these circumstances, the High Court, in our opinion, was right in not going into that question because on the facts found by the Tribunal it was not possible to decide that contentionIt is well-settled that a Hindu undivided family cannot be a shareholder of a company. The shareholder of a company is the individual who is registered as the shareholder in the books of the company. The Hindu undivided family, the assessee in this case, was not registered as a shareholder in the books of the company nor could it have been so registered. Hence, there is no gainsaying the fact that the Hindu undivided family was not the shareholder of the company. Mr. Sen did not contend otherwiseSection 2(6A)(e) gives an artificial definition of " dividend ". It does not take in dividend actually declared or received. The dividend taken note of by that provision is a deemed dividend and not a real dividend. The loan granted to a shareholder has to be returned to the company. It does not become the income of the shareholder. For certain purposes, the legislature has deemed such a loan as " dividend ". Hence, section 2(6A)(e) must necessarily receive a strict construction. When section 2(6A)(e) speaks of " shareholder ", it refers to the registered shareholder and not to the beneficial owner. The Hindu undivided family cannot be considered as a shareholder either under section 2(6A)(e) or under section 23A or under section 16(2) read with section 18(5) of the Act. Hence a loan given to a Hindu undivided family cannot be considered as a loan advanced to a " shareholder " of a companyOur conclusion in this regard receives support from the decisions of this court. In Howrah Trading Ltd. Co. v. Commissioner of Income-tax, this court had to examine the case of a person who had purchased shares of a company under a blank transfer. but in whose name the shares had not been registered in the books of the companyThis court ruled that the dividends paid to the shareholders was the income of the family and, that being so, the same was assessable in the hands of the Hindu undivided family. We see no conflict between this decision and the decisions earlier referred to. In the case of actual receipt of dividends there is a receipt of income. That income is received on behalf of the family. Hence, the same was assessable in the hands of the family. In the case of deemed dividends under section 2(6A)(e) the family does not get any income at all. The dividend referred to by that provision is only a deemed dividend and not a real dividend. Hence, no income is either received by the family or accrued to it. Therefore, only the person who is deemed to have received that income can be assessed in respect of that incomeComing to the facts of the present case, the loans advanced to shareholders alone can be deemed as dividends. No loans had been advanced to shareholders as seen earlier. Hence, the shareholders did not get any income. Hence, section 2(6A)(e) became inapplicable. | 0 | 2,163 | 659 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
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so, the Tribunal did not go into that question. In fact, as can be gathered from the case stated, the contention of the assessee before the Tribunal was that the loan, in question was borrowed for the benefit of another company. But the Tribunal did not go into that question. Under these circumstances, the High Court, in our opinion, was right in not going into that question because on the facts found by the Tribunal it was not possible to decide that contention 5. The only surviving question is whether a loan advanced by a company to a Hindu undivided family, which is the real owner of the shares, can be considered as a loan advanced to its shareholder. It is well-settled that a Hindu undivided family cannot be a shareholder of a company. The shareholder of a company is the individual who is registered as the shareholder in the books of the company. The Hindu undivided family, the assessee in this case, was not registered as a shareholder in the books of the company nor could it have been so registered. Hence, there is no gainsaying the fact that the Hindu undivided family was not the shareholder of the company. Mr. Sen did not contend otherwiseSection 2(6A)(e) gives an artificial definition of " dividend ". It does not take in dividend actually declared or received. The dividend taken note of by that provision is a deemed dividend and not a real dividend. The loan granted to a shareholder has to be returned to the company. It does not become the income of the shareholder. For certain purposes, the legislature has deemed such a loan as " dividend ". Hence, section 2(6A)(e) must necessarily receive a strict construction. When section 2(6A)(e) speaks of " shareholder ", it refers to the registered shareholder and not to the beneficial owner. The Hindu undivided family cannot be considered as a shareholder either under section 2(6A)(e) or under section 23A or under section 16(2) read with section 18(5) of the Act. Hence a loan given to a Hindu undivided family cannot be considered as a loan advanced to a " shareholder " of a company 6. Our conclusion in this regard receives support from the decisions of this court. In Howrah Trading Ltd. Co. v. Commissioner of Income-tax, this court had to examine the case of a person who had purchased shares of a company under a blank transfer. but in whose name the shares had not been registered in the books of the company. The question was whether he could be considered as a " shareholder " in respect of such shares for the purpose of section 18(5) of the Act, because of his equitable right to the dividend on such shares and, therefore, entitled to have that dividend grossed up under section 16(2) by addition of income-tax paid by the company in respect of those shares and claim credit for the tax deducted at the source. This court held that he cannot be considered as a " shareholder ", the reason being that he had not been registered as a shareholder 7. In Commissioner of Income-tax v. Shakuntala, a Hindu undivided family which was the beneficiary of certain shares in a company in which the public were not substantially interested held those shares in the names of different members of the family. The Income-tax Officer applied the provisions of section 23A of the Act. (before its amendment in 1955) and passed an order that the undistributed portion of the distributable income of the company shall be deemed to be distributed, and the amount appropriate to the shares of the family were sought to be included, in the income of the family. In that case again this court ruled that the word " shareholder " in section 23A meant the shareholder registered in the books of the company and the amount appropriate to the shares had to be included in the incomes of the members of the family, in whose names the shares stood in the register of the company ; and as the Hindu undivided family was not a registered shareholder of the company, that amount could not be considered as the income of the family under section 23AFrom the above decisions it is clear that when the Act speaks of the " shareholder ", it refers to the registered shareholder 8. Mr. Sen contended that the above two decisions cannot be considered to have laid down the law correctly in view of the decision of this court in Kishanchand Lunidasingh Bajaj v. Commissioner of Income-tax. Therein the question was whether a Hindu undivided family could be charged to tax in respect of dividends received by some of the coparceners of that family in respect of shares held by them, those shares having been purchased from out of the family funds. This court ruled that the dividends paid to the shareholders was the income of the family and, that being so, the same was assessable in the hands of the Hindu undivided family. We see no conflict between this decision and the decisions earlier referred to. In the case of actual receipt of dividends there is a receipt of income. That income is received on behalf of the family. Hence, the same was assessable in the hands of the family. In the case of deemed dividends under section 2(6A)(e) the family does not get any income at all. The dividend referred to by that provision is only a deemed dividend and not a real dividend. Hence, no income is either received by the family or accrued to it. Therefore, only the person who is deemed to have received that income can be assessed in respect of that income 9. Coming to the facts of the present case, the loans advanced to shareholders alone can be deemed as dividends. No loans had been advanced to shareholders as seen earlier. Hence, the shareholders did not get any income. Hence, section 2(6A)(e) became inapplicable. 10.
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In fact, as can be gathered from the case stated, the contention of the assessee before the Tribunal was that the loan, in question was borrowed for the benefit of another company. But the Tribunal did not go into that question. Under these circumstances, the High Court, in our opinion, was right in not going into that question because on the facts found by the Tribunal it was not possible to decide that contentionIt is well-settled that a Hindu undivided family cannot be a shareholder of a company. The shareholder of a company is the individual who is registered as the shareholder in the books of the company. The Hindu undivided family, the assessee in this case, was not registered as a shareholder in the books of the company nor could it have been so registered. Hence, there is no gainsaying the fact that the Hindu undivided family was not the shareholder of the company. Mr. Sen did not contend otherwiseSection 2(6A)(e) gives an artificial definition of " dividend ". It does not take in dividend actually declared or received. The dividend taken note of by that provision is a deemed dividend and not a real dividend. The loan granted to a shareholder has to be returned to the company. It does not become the income of the shareholder. For certain purposes, the legislature has deemed such a loan as " dividend ". Hence, section 2(6A)(e) must necessarily receive a strict construction. When section 2(6A)(e) speaks of " shareholder ", it refers to the registered shareholder and not to the beneficial owner. The Hindu undivided family cannot be considered as a shareholder either under section 2(6A)(e) or under section 23A or under section 16(2) read with section 18(5) of the Act. Hence a loan given to a Hindu undivided family cannot be considered as a loan advanced to a " shareholder " of a companyOur conclusion in this regard receives support from the decisions of this court. In Howrah Trading Ltd. Co. v. Commissioner of Income-tax, this court had to examine the case of a person who had purchased shares of a company under a blank transfer. but in whose name the shares had not been registered in the books of the companyThis court ruled that the dividends paid to the shareholders was the income of the family and, that being so, the same was assessable in the hands of the Hindu undivided family. We see no conflict between this decision and the decisions earlier referred to. In the case of actual receipt of dividends there is a receipt of income. That income is received on behalf of the family. Hence, the same was assessable in the hands of the family. In the case of deemed dividends under section 2(6A)(e) the family does not get any income at all. The dividend referred to by that provision is only a deemed dividend and not a real dividend. Hence, no income is either received by the family or accrued to it. Therefore, only the person who is deemed to have received that income can be assessed in respect of that incomeComing to the facts of the present case, the loans advanced to shareholders alone can be deemed as dividends. No loans had been advanced to shareholders as seen earlier. Hence, the shareholders did not get any income. Hence, section 2(6A)(e) became inapplicable.
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NAMDEO SHANKAR GOVARDHANE(D)THR.LRS.&ORS Vs. STATE OF MAHARASHTRA | by the Civil Court.9. So, the question before the High Court was whether the Civil Court was justified in partly enhancing the rate of compensation mentioned above. The case of the State in their appeals was that the Civil Court was not justified in enhancing the rate of compensation and whatever the Reference Court had determined, the same should be upheld as being just and reasonable compensation awarded to the landowners (appellants herein).10. By impugned order, the Division Bench of the High Court partly allowed the States appeals and accordingly reduced the rate of compensation. The rate of compensation awarded by all the Courts are as under:chart11. Some landowners (appellants herein) felt aggrieved by the order of the High Court and have filed these appeals by way of special leave in this Court.12. So, the question, which arises for consideration in these appeals, is whether the High Court was justified in partly allowing the State?s appeals and thereby was justified in reducing the rate of compensation as against what was determined by the Civil Court.13. Heard learned counsel for the parties.14. Learned counsel for the appellants (landowners) has essentially confined his submission to the rate determined by the High Court in relation to Jirayat land and Bagayat land. In other words, the appellants are aggrieved only by the rates of Jirayat and Bagayat lands.15. According to the learned counsel, the rates determined by the Civil Court (Reference Court) in relation to Jirayat and Bagayat lands were just and proper, therefore, it should not have been interfered with by the High Court. It was his submission that keeping in view the exemplars relied on by the landowners and, particularly (Ex¬P-42), the rate mentioned therein should have been applied for determining the market value of the acquired land.16. It was urged that the principle that price of small piece of land cannot be applied for determining the price of large chunk of acquired land may be good in relation to those cases where the acquired land is non¬ agricultural and is situated in urban areas but where the land is an agricultural land such as the one in the present case, the rate of small piece of land can be taken into consideration while determining the large chunk of land.17. It was pointed out that since the land in question was an agricultural land, the market value of the acquired land could be determined keeping in view the price of the land purchased under exemplar (Ex¬P¬ 42) even though it was for a small piece of land.18. In reply, learned counsel for the respondent (State) supported the well reasoned order of the High Court and prayed for dismissal of these appeals.19. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in these appeals.20. In our view, the reasoning and the conclusion arrived at by the High Court, which resulted in partly allowing the State?s appeals and thereby reducing the rate of compensation to some extent is just and proper and hence does not call for any interference. This we say for the following reasons.21. We find that the High Court rightly appreciated the evidence and especially the 3 sale deeds filed by the State and 3 sale deeds filed by the landowners for determining the market value of the acquired land. It is apposite to set out the details of the six sale deeds hereinbelow:chart22. Learned counsel for the appellants, in his submissions, placed heavy reliance on the sale deed (EX- 42) dated 04.07.1989 and contended that the market value of the suit land should have been determined keeping in view the price of the land mentioned in this sale deed.23. On the other hand, learned counsel for the respondent (State) placed reliance on the sale deed dated 14.02.1994 (EX¬141) and contended that if the price mentioned in this sale deed is relied on then it is amply clear that the High Court has awarded the compensation on higher side and, therefore, it deserves to be rather reduced.24. In our opinion, the relevant sale deed to determine the market value of the suit land is (EX¬ 141), which is dated 14.02.1994. This we say for two reasons. First, it is very near to the date of acquisition (03.03.1994); and Second, it is for a larger chunk of land. As a matter of fact, if we only rely upon Ex¬141 then perhaps the determination made by the High Court in relation to two kinds of land can still be reduced.25. Since the State has not filed any appeal against the order of the High Court and on the other hand has accepted the determination made by the High Court, we need not examine the question of reducing the rate 1determined by the High Court in these appeals. It is not legally permissible.26. Having examined the issue, we cannot place exclusive reliance on Ex¬P-42 as was urged by the learned counsel for the appellants neither for restoring the rates determined by the Civil Court and nor for making any further enhancement in the rates determined by the High Court.27. As a matter of fact, we find that Ex¬P¬42 is of the year 1989 and that too of a very small piece of land. It would not, therefore, be safe to place exclusive reliance on this sale deed. It is more so when we find that Ex¬ 141 relied on by the learned counsel for the respondent (State) was executed just one month prior to the date of acquisition and is also of a large chunk of land situated in the same village.28. We are also not impressed by the submission of learned counsel when he contended that since the 1land in question is an agricultural land and, therefore, price of small piece of land can be taken into consideration for determining the large chunk of land. We cannot accept this submission in the light of what we have held above on facts. | 0[ds]20. In our view, the reasoning and the conclusion arrived at by the High Court, which resulted in partly allowing the State?s appeals and thereby reducing the rate of compensation to some extent is just and proper and hence does not call for any interference. This we say for the following reasons.21. We find that the High Court rightly appreciated the evidence and especially the 3 sale deeds filed by the State and 3 sale deeds filed by the landowners for determining the market value of the acquired land.In our opinion, the relevant sale deed to determine the market value of the suit land is (EX¬ 141), which is dated 14.02.1994. This we say for two reasons. First, it is very near to the date of acquisition (03.03.1994); and Second, it is for a larger chunk of land. As a matter of fact, if we only rely upon Ex¬141 then perhaps the determination made by the High Court in relation to two kinds of land can still be reduced.25. Since the State has not filed any appeal against the order of the High Court and on the other hand has accepted the determination made by the High Court, we need not examine the question of reducing the rate 1determined by the High Court in these appeals. It is not legally permissible.26. Having examined the issue, we cannot place exclusive reliance on Ex¬P-42 as was urged by the learned counsel for the appellants neither for restoring the rates determined by the Civil Court and nor for making any further enhancement in the rates determined by the High Court.27. As a matter of fact, we find that Ex¬P¬42 is of the year 1989 and that too of a very small piece of land. It would not, therefore, be safe to place exclusive reliance on this sale deed. It is more so when we find that Ex¬ 141 relied on by the learned counsel for the respondent (State) was executed just one month prior to the date of acquisition and is also of a large chunk of land situated in the same village.28. We are also not impressed by the submission of learned counsel when he contended that since the 1land in question is an agricultural land and, therefore, price of small piece of land can be taken into consideration for determining the large chunk of land. We cannot accept this submission in the light of what we have held above on facts. | 0 | 1,509 | 454 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
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by the Civil Court.9. So, the question before the High Court was whether the Civil Court was justified in partly enhancing the rate of compensation mentioned above. The case of the State in their appeals was that the Civil Court was not justified in enhancing the rate of compensation and whatever the Reference Court had determined, the same should be upheld as being just and reasonable compensation awarded to the landowners (appellants herein).10. By impugned order, the Division Bench of the High Court partly allowed the States appeals and accordingly reduced the rate of compensation. The rate of compensation awarded by all the Courts are as under:chart11. Some landowners (appellants herein) felt aggrieved by the order of the High Court and have filed these appeals by way of special leave in this Court.12. So, the question, which arises for consideration in these appeals, is whether the High Court was justified in partly allowing the State?s appeals and thereby was justified in reducing the rate of compensation as against what was determined by the Civil Court.13. Heard learned counsel for the parties.14. Learned counsel for the appellants (landowners) has essentially confined his submission to the rate determined by the High Court in relation to Jirayat land and Bagayat land. In other words, the appellants are aggrieved only by the rates of Jirayat and Bagayat lands.15. According to the learned counsel, the rates determined by the Civil Court (Reference Court) in relation to Jirayat and Bagayat lands were just and proper, therefore, it should not have been interfered with by the High Court. It was his submission that keeping in view the exemplars relied on by the landowners and, particularly (Ex¬P-42), the rate mentioned therein should have been applied for determining the market value of the acquired land.16. It was urged that the principle that price of small piece of land cannot be applied for determining the price of large chunk of acquired land may be good in relation to those cases where the acquired land is non¬ agricultural and is situated in urban areas but where the land is an agricultural land such as the one in the present case, the rate of small piece of land can be taken into consideration while determining the large chunk of land.17. It was pointed out that since the land in question was an agricultural land, the market value of the acquired land could be determined keeping in view the price of the land purchased under exemplar (Ex¬P¬ 42) even though it was for a small piece of land.18. In reply, learned counsel for the respondent (State) supported the well reasoned order of the High Court and prayed for dismissal of these appeals.19. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in these appeals.20. In our view, the reasoning and the conclusion arrived at by the High Court, which resulted in partly allowing the State?s appeals and thereby reducing the rate of compensation to some extent is just and proper and hence does not call for any interference. This we say for the following reasons.21. We find that the High Court rightly appreciated the evidence and especially the 3 sale deeds filed by the State and 3 sale deeds filed by the landowners for determining the market value of the acquired land. It is apposite to set out the details of the six sale deeds hereinbelow:chart22. Learned counsel for the appellants, in his submissions, placed heavy reliance on the sale deed (EX- 42) dated 04.07.1989 and contended that the market value of the suit land should have been determined keeping in view the price of the land mentioned in this sale deed.23. On the other hand, learned counsel for the respondent (State) placed reliance on the sale deed dated 14.02.1994 (EX¬141) and contended that if the price mentioned in this sale deed is relied on then it is amply clear that the High Court has awarded the compensation on higher side and, therefore, it deserves to be rather reduced.24. In our opinion, the relevant sale deed to determine the market value of the suit land is (EX¬ 141), which is dated 14.02.1994. This we say for two reasons. First, it is very near to the date of acquisition (03.03.1994); and Second, it is for a larger chunk of land. As a matter of fact, if we only rely upon Ex¬141 then perhaps the determination made by the High Court in relation to two kinds of land can still be reduced.25. Since the State has not filed any appeal against the order of the High Court and on the other hand has accepted the determination made by the High Court, we need not examine the question of reducing the rate 1determined by the High Court in these appeals. It is not legally permissible.26. Having examined the issue, we cannot place exclusive reliance on Ex¬P-42 as was urged by the learned counsel for the appellants neither for restoring the rates determined by the Civil Court and nor for making any further enhancement in the rates determined by the High Court.27. As a matter of fact, we find that Ex¬P¬42 is of the year 1989 and that too of a very small piece of land. It would not, therefore, be safe to place exclusive reliance on this sale deed. It is more so when we find that Ex¬ 141 relied on by the learned counsel for the respondent (State) was executed just one month prior to the date of acquisition and is also of a large chunk of land situated in the same village.28. We are also not impressed by the submission of learned counsel when he contended that since the 1land in question is an agricultural land and, therefore, price of small piece of land can be taken into consideration for determining the large chunk of land. We cannot accept this submission in the light of what we have held above on facts.
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20. In our view, the reasoning and the conclusion arrived at by the High Court, which resulted in partly allowing the State?s appeals and thereby reducing the rate of compensation to some extent is just and proper and hence does not call for any interference. This we say for the following reasons.21. We find that the High Court rightly appreciated the evidence and especially the 3 sale deeds filed by the State and 3 sale deeds filed by the landowners for determining the market value of the acquired land.In our opinion, the relevant sale deed to determine the market value of the suit land is (EX¬ 141), which is dated 14.02.1994. This we say for two reasons. First, it is very near to the date of acquisition (03.03.1994); and Second, it is for a larger chunk of land. As a matter of fact, if we only rely upon Ex¬141 then perhaps the determination made by the High Court in relation to two kinds of land can still be reduced.25. Since the State has not filed any appeal against the order of the High Court and on the other hand has accepted the determination made by the High Court, we need not examine the question of reducing the rate 1determined by the High Court in these appeals. It is not legally permissible.26. Having examined the issue, we cannot place exclusive reliance on Ex¬P-42 as was urged by the learned counsel for the appellants neither for restoring the rates determined by the Civil Court and nor for making any further enhancement in the rates determined by the High Court.27. As a matter of fact, we find that Ex¬P¬42 is of the year 1989 and that too of a very small piece of land. It would not, therefore, be safe to place exclusive reliance on this sale deed. It is more so when we find that Ex¬ 141 relied on by the learned counsel for the respondent (State) was executed just one month prior to the date of acquisition and is also of a large chunk of land situated in the same village.28. We are also not impressed by the submission of learned counsel when he contended that since the 1land in question is an agricultural land and, therefore, price of small piece of land can be taken into consideration for determining the large chunk of land. We cannot accept this submission in the light of what we have held above on facts.
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National Insurance Co.Ltd Vs. Sinitha | 26. The Tribunal in holding, that the rider Shijo was responsible for the accident, had placed reliance on copies of the first information report, post mortem certificate, scene mahazor, report of inspection of vehicle, inquest report and final report. Neither of these in our considered view, can constitute proof of "negligence" at the hands of Shijo. Even if he was responsible for the accident, because the motorcycle being ridden by Shijo had admittedly struck against a large laterite stone lying on the tar road. But then, it cannot be overlooked that the solitary witness who had appeared before the Tribunal had deposed, that this has happened because the rider of the motorcycle had given way to a bus coming from the opposite side. Had he not done so there may have been a head-on collusion. Or it may well be, that the bus coming from the opposite side was being driven on the wrong side. This or such other similar considerations would fall in the realm of conjectural determination. In the absence of concrete evidence this factual jumble will remain an unresolved tangle. It has already been concluded hereinabove, that in a claim raised under Section 163A of the Act, the claimants have neither to plead nor to establish negligence. We have also held, that negligence (as also, "wrongful act" and "default") can be established by the owner or the insurance company (as the case may be) to defeat a claim under Section 163A of the Act. It was therefore imperative for the petitioner-Insurance Company to have pleaded negligence, and to have established the same through cogent evidence. This procedure would have afforded an opportunity to the claimants to repudiate the same. Has the petitioner discharged this onus? In the present case, only one witness was produced before the Tribunal. The aforesaid witness appeared for the claimants. The witness asserted, that while giving way to a bus coming from opposite side, the motorcycle being ridden by Shijo, hit a large laterite stone lying on the tar road, whereupon, the motorcycle overturned, and the rider and the pillion-rider suffered injuries. The petitioner insurance-company herein did not produce any witness before the Tribunal. In the absence of evidence to contradict the aforesaid factual position, it is not possible for us to conclude, that Shijo was "negligent" at the time when the accident occurred. Since no pleading or evidence has been brought to our notice (at the hands of the learned counsel for the petitioner), it is not possible for us to conclude, that the inverse onus which has been placed on the shoulders of the petitioner under Section 163A of the Act to establish negligence, has been discharged by it. We, therefore, find no merit in the first contention advanced at the hands of the learned counsel for the appellant. 27. The second contention advanced at the hands of the learned counsel for the petitioner was, that Shijo being the rider of the motorcycle, cannot be treated as a third party. It was pointed out, that the claim under Section 163A can only be raised at the behest of a third party. It seems, that the instant determination raised at the hands of the learned counsel for the petitioner, is based on the determination rendered by this Court in Oriental Insurance Company Limited vs. Jhuma Saha, (2007) 9 SCC 263 , wherein, this Court held as under : "10. The deceased was the owner of the vehicle. For the reasons stated in the claim petition or otherwise, he himself was to be blamed for the accident. The accident did not involve motor vehicle other than the one which he was driving. The question which arises for consideration is that the deceased himself being negligent, the claim petition under Section 166 of the Motor Vehicles Act, 1988 would be maintainable." 28. According to the learned counsel for the petitioner, since the rider of the vehicle involved in the accident was Shijo himself, he would stand in the shoes of the owner, and as such, no claim for compensation can be raised in an accident caused by him, under Section 163A of the Act. 29. To substantiate his second contention, it would be essential for the petitioner to establish, that Shijo having occupied the shoes of the owner, cannot be treated as the third party. Only factual details brought on record through reliable evidence, can discharge the aforesaid onus. During the course of hearing, despite our queries, learned counsel for the petitioner could not point out the relationship between Shijo and the owner of the motorcycle involved in the accident. Shijo is not shown to be the employee of the owner. He was not even shown as the representative of the owner. In order to establish the relationship between the Shijo and the owner, the petitioner-Insurance Company could have easily produced either the owner himself as a witness, or even the claimants themselves as witnesses. These, or other witnesses, who could have brought out the relationship between the owner and Shijo, were not produced by the petitioner herein, before the Tribunal. The petitioner has, therefore, not discharged the onus which rested on its shoulders. Since the relationship between the Shijo and the owner has not been established, nor the capacity in which he was riding the vehicle has been brought out, it is not possible for us to conclude, that Shijo while riding the motorcycle on the fateful day, was an agent, employee or representative of the owner. It was open to the petitioner to defeat the claim for compensation raised by the respondents by establishing, that the rider Shijo represented the owner, and as such, was not a third party, in terms of the judgment rendered by this Court in Oriental Insurance Company Limited case (supra). The petitioner failed to discharge the said onus. In view of the above, it is not possible for us to accede to the second contention advanced at the hands of the learned counsel for the petitioner. 30. | 0[ds]Firstly, that compensation was payable under Section 140 of the Act, without the necessity of pleading or establishing, that death or permanent disablement was due to any "wrongful act", "neglect" or "default" of the offending vehicle or vehicles. It was also concluded, that a claim under Section 140 of the Act cannot be defeated ".....by reason of any wrongful act, neglect or default of the offending vehicle/person responsible for death or permanent disablement.....". (from paragraph 15 extracted above)Secondly, that the word "also" used in sub-section (5) of Section 140 of the Act, and the proviso to sub-section (5) of Section 140 clarifies, that the amount of compensation payable under "any other law" for the time being in force, was separate and distinct from the amount of compensation payable under sub-section (2) of Section 140 or Section 163A of the Act. It was however clarified, that the amount of compensation held as payable under any other law would have to be reduced from the amount of compensation payable under Sections 140(2) or 163A of the Act (from paragraph 16 extractedsub-section (2) of Section 141 of the Act provides, that in cases where compensation is sought both under Section 140 of the Act, as also, under a provision governed by the "fault" liability principle under the Act, then the claim raised under Section 140 would be decided first. And the compensation so awarded under Section 140 aforementioned, would be adjusted while paying compensation determined under the "fault" liability principle. (from paragraph 16 extractedSection 141 of the Act provides, that the right to claim compensation on the basis of the "no-fault" liability principle under Section 140, was in addition to the right to claim compensation "under any other provision of this Act". There are some exceptions. Compensation under Section 140 would not be in addition to the compensation contemplated under the schemed Section 163 of the Act. Compensation determined under Section 140 of the Act, would be deducted from the compensation found payable, under any other provision under the Act governed by the "fault" liability principle. (from paragraph 16 extractedSection 163A nowhere provides, that payment of compensation under the "fault" liability principle, would be in addition to the right to claim compensation thereunder (under Section 163A of the Act). Accordingly, the scheme of payment of compensation under Section 163A provides an alternative right, from the one provided under Section 168 of the Act. (from paragraph 16 extractedwhile referring to the phrase "compensation under any other law for the time being in force" contained in the proviso to sub-section (5) of Section 140 of the Act (in its un-amended format), it was concluded, that the scheme of Section 167 indicated, that the aforesaid phrase was referable to compensation payable under the Workmens Compensation Act, 1923 or any other law in force i.e., other than compensation contemplated under the Act. (from paragraph 17 extractedthe question whether compensation determined under Section 163A of the Act would be in addition to the compensation receivable under the "fault" liability principle was answered in the negative. Accordingly, the contention that the compensation determined under Section 163A of the Act would be adjustable from the compensation found payable under any other provision governed by the "fault" liability principle, was alsoon a conjunctive examination of the phrase "compensation under any other law for the time being in force" occurring in the proviso to sub-section (5) of Section 140 of the Act, with the scheme of Section 167 of the Act, it was concluded, that the aforesaid phrase was referable to compensation payable under the Workmens Compensation Act, 1923. Therefore, it was concluded that a claim cannot be raised under both the Acts i.e., the Motor Vehicles Act, 1988, and the Workmens Compensation Act, 1923. (from paragraph 19 extractedfrom the use of the words "under any law for the time being in force" used in Section 140(5) of the Act ; the words "under any other provision of this Act or of any other law for the time being in force", used in Section 141(1) of the Act ; the stipulation contained in Section 141(2) of the Act, that a claim under Section 140 is to be disposed of "as expeditiously as possible" and before compensation is determined under the "fault" liability provisions (and noticing that there was no such provision in Section 163A of the Act) ; the phrase "any other law for the time being in force" and "provisions of this Act" used in Section 161(2) of the Act ; the use of the words "under any other provision of this Act" and "any other law or otherwise" used in Section 162 of the Act ; the words "notwithstanding anything contained in this Act or in any other law for the time being in force", used in Section 163A of the Act ; it was held that all these phrases were to be examined together. When examined together it was concluded, that the compensation payable under Section 140 of the Act was not liable to deduction or adjustment out of the compensation determinable under the "fault" liability principle i.e., under Section 168 of thefind merit in the aforesaid contention of the learned counsel for the appellant, insofar as the first aspect of this matter is concerned. There can be no dispute whatsoever, that the issues of law arising for consideration in the present controversy as against the matter adjudicated upon by this Court in Oriental Insurance Company Limited vs. Hansrajbhai V. Kodala (supra), are separate and distinct. In fact, there is hardly any grey area which may be considered as common between the issues involved. We are also satisfied that the second contention advanced at the hands of the learned counsel for the petitioner cannot be brushed aside. Sub-section (4) of Section 140 of the Act was not referred to, nor taken into consideration, while adjudicating upon the controversy arising in Oriental Insurance Company Limited vs. Hansrajbhai V. Kodala (supra). Absence of reference to sub-section (4) of Section 140 of the Act was because the same was wholly irrelevant for the purpose of the controversy settled in the aforesaid case. We also find merit in the last contention advanced at the hands of the learned counsel for the petitioner, namely, the overriding effect of Section 163A by the use of the words "Notwithstanding anything contained in this act or any other law for the time being in force or instrument having the force of law .....". In this behalf, it would be pertinent to mention, that Section 163A was introduced into the Motor Vehicles Act, 1988 by way of an amendment carried out with effect from 14.11.1994. As against the aforesaid, it is necessary to mention that Section 144 of the Act was incorporated into the Motor Vehicles Act, 1988 from the very beginning. Section 144, it may be pointed out, is a part of Chapter X of the Motor Vehicles Act, 1988, which includes Sectionwill now venture to determine whether a claim made under Section 163A of the Act is a claim under the "fault" liability principle, or under the "no-fault" liability principle. We are satisfied, that if a claim for compensation under a provision, is not sustainable for reason of a "fault" on account of any one or more of the following i.e., "wrongful act", "neglect" or "default", the provision in question would be governed by the "fault" liability principle. Stated differently, where the claimant in order to establish his right to claim compensation (under a particular provision) has to establish, that the same does not arise out of "wrongful act" or "neglect" or "default", the said provision will be deemed to fall under the "fault" liability principle. So also, where a claim for compensation can be defeated on account of any of the aforesaid considerations on the basis of a "fault" ground, the same would also fall under the "fault" liability principle. On the contrary, if under a provision, a claimant does not have to establish, that his claim does not arise out of "wrongful act" or "neglect" or "default"; and conversely, the claim cannot be defeated on account of any of the aforesaid considerations; then most certainly, the provision in question will fall under the "no-fault" liabilityis essential for us to determine whether or not the compensation awarded to the claimants/respondents in the present controversy, by the Tribunal, as also, by the High Court, is liable to be set aside on the plea of "negligence" raised at the hands of the petitioner. The award rendered by the Tribunal, as also, the decision of the High Court in favour of the claimants/respondents is, therefore, liable to be reappraised keeping in mind the conclusions recorded by us. In case, the petitioner can establish having pleaded and proved negligence at the hands of the rider Shijo, the petitioner would succeed. The pleadings filed before the Tribunal at the hands of the petitioner, are not before us. What is before us, is the award of the Tribunal dated 19.4.2005. We shall endeavour to determine the plea of negligence advanced at the hands of the learned counsel for the petitioner from theTribunal in holding, that the rider Shijo was responsible for the accident, had placed reliance on copies of the first information report, post mortem certificate, scene mahazor, report of inspection of vehicle, inquest report and final report. Neither of these in our considered view, can constitute proof of "negligence" at the hands of Shijo. Even if he was responsible for the accident, because the motorcycle being ridden by Shijo had admittedly struck against a large laterite stone lying on the tar road. But then, it cannot be overlooked that the solitary witness who had appeared before the Tribunal had deposed, that this has happened because the rider of the motorcycle had given way to a bus coming from the opposite side. Had he not done so there may have been a head-on collusion. Or it may well be, that the bus coming from the opposite side was being driven on the wrong side. This or such other similar considerations would fall in the realm of conjectural determination. In the absence of concrete evidence this factual jumble will remain an unresolved tangle. It has already been concluded hereinabove, that in a claim raised under Section 163A of the Act, the claimants have neither to plead nor to establish negligence. We have also held, that negligence (as also, "wrongful act" and "default") can be established by the owner or the insurance company (as the case may be) to defeat a claim under Section 163A of the Act. It was therefore imperative for the petitioner-Insurance Company to have pleaded negligence, and to have established the same through cogent evidence. This procedure would have afforded an opportunity to the claimants to repudiate the same. Has the petitioner discharged this onus? In the present case, only one witness was produced before the Tribunal. The aforesaid witness appeared for the claimants. The witness asserted, that while giving way to a bus coming from opposite side, the motorcycle being ridden by Shijo, hit a large laterite stone lying on the tar road, whereupon, the motorcycle overturned, and the rider and the pillion-rider suffered injuries. The petitioner insurance-company herein did not produce any witness before the Tribunal. In the absence of evidence to contradict the aforesaid factual position, it is not possible for us to conclude, that Shijo was "negligent" at the time when the accident occurred. Since no pleading or evidence has been brought to our notice (at the hands of the learned counsel for the petitioner), it is not possible for us to conclude, that the inverse onus which has been placed on the shoulders of the petitioner under Section 163A of the Act to establish negligence, has been discharged by it. We, therefore, find no merit in the first contention advanced at the hands of the learned counsel for the appellant.The second contention advanced at the hands of the learned counsel for the petitioner was, that Shijo being the rider of the motorcycle, cannot be treated as a third party. It was pointed out, that the claim under Section 163A can only be raised at the behest of a thirdthe course of hearing, despite our queries, learned counsel for the petitioner could not point out the relationship between Shijo and the owner of the motorcycle involved in the accident. Shijo is not shown to be the employee of the owner. He was not even shown as the representative of the owner. In order to establish the relationship between the Shijo and the owner, the petitioner-Insurance Company could have easily produced either the owner himself as a witness, or even the claimants themselves as witnesses. These, or other witnesses, who could have brought out the relationship between the owner and Shijo, were not produced by the petitioner herein, before the Tribunal. The petitioner has, therefore, not discharged the onus which rested on its shoulders. Since the relationship between the Shijo and the owner has not been established, nor the capacity in which he was riding the vehicle has been brought out, it is not possible for us to conclude, that Shijo while riding the motorcycle on the fateful day, was an agent, employee or representative of the owner. It was open to the petitioner to defeat the claim for compensation raised by the respondents by establishing, that the rider Shijo represented the owner, and as such, was not a third party, in terms of the judgment rendered by this Court in Oriental Insurance Company Limited case (supra). The petitioner failed to discharge the said onus. In view of the above, it is not possible for us to accede to the second contention advanced at the hands of the learned counsel for the petitioner. | 0 | 12,539 | 2,676 | ### Instruction:
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26. The Tribunal in holding, that the rider Shijo was responsible for the accident, had placed reliance on copies of the first information report, post mortem certificate, scene mahazor, report of inspection of vehicle, inquest report and final report. Neither of these in our considered view, can constitute proof of "negligence" at the hands of Shijo. Even if he was responsible for the accident, because the motorcycle being ridden by Shijo had admittedly struck against a large laterite stone lying on the tar road. But then, it cannot be overlooked that the solitary witness who had appeared before the Tribunal had deposed, that this has happened because the rider of the motorcycle had given way to a bus coming from the opposite side. Had he not done so there may have been a head-on collusion. Or it may well be, that the bus coming from the opposite side was being driven on the wrong side. This or such other similar considerations would fall in the realm of conjectural determination. In the absence of concrete evidence this factual jumble will remain an unresolved tangle. It has already been concluded hereinabove, that in a claim raised under Section 163A of the Act, the claimants have neither to plead nor to establish negligence. We have also held, that negligence (as also, "wrongful act" and "default") can be established by the owner or the insurance company (as the case may be) to defeat a claim under Section 163A of the Act. It was therefore imperative for the petitioner-Insurance Company to have pleaded negligence, and to have established the same through cogent evidence. This procedure would have afforded an opportunity to the claimants to repudiate the same. Has the petitioner discharged this onus? In the present case, only one witness was produced before the Tribunal. The aforesaid witness appeared for the claimants. The witness asserted, that while giving way to a bus coming from opposite side, the motorcycle being ridden by Shijo, hit a large laterite stone lying on the tar road, whereupon, the motorcycle overturned, and the rider and the pillion-rider suffered injuries. The petitioner insurance-company herein did not produce any witness before the Tribunal. In the absence of evidence to contradict the aforesaid factual position, it is not possible for us to conclude, that Shijo was "negligent" at the time when the accident occurred. Since no pleading or evidence has been brought to our notice (at the hands of the learned counsel for the petitioner), it is not possible for us to conclude, that the inverse onus which has been placed on the shoulders of the petitioner under Section 163A of the Act to establish negligence, has been discharged by it. We, therefore, find no merit in the first contention advanced at the hands of the learned counsel for the appellant. 27. The second contention advanced at the hands of the learned counsel for the petitioner was, that Shijo being the rider of the motorcycle, cannot be treated as a third party. It was pointed out, that the claim under Section 163A can only be raised at the behest of a third party. It seems, that the instant determination raised at the hands of the learned counsel for the petitioner, is based on the determination rendered by this Court in Oriental Insurance Company Limited vs. Jhuma Saha, (2007) 9 SCC 263 , wherein, this Court held as under : "10. The deceased was the owner of the vehicle. For the reasons stated in the claim petition or otherwise, he himself was to be blamed for the accident. The accident did not involve motor vehicle other than the one which he was driving. The question which arises for consideration is that the deceased himself being negligent, the claim petition under Section 166 of the Motor Vehicles Act, 1988 would be maintainable." 28. According to the learned counsel for the petitioner, since the rider of the vehicle involved in the accident was Shijo himself, he would stand in the shoes of the owner, and as such, no claim for compensation can be raised in an accident caused by him, under Section 163A of the Act. 29. To substantiate his second contention, it would be essential for the petitioner to establish, that Shijo having occupied the shoes of the owner, cannot be treated as the third party. Only factual details brought on record through reliable evidence, can discharge the aforesaid onus. During the course of hearing, despite our queries, learned counsel for the petitioner could not point out the relationship between Shijo and the owner of the motorcycle involved in the accident. Shijo is not shown to be the employee of the owner. He was not even shown as the representative of the owner. In order to establish the relationship between the Shijo and the owner, the petitioner-Insurance Company could have easily produced either the owner himself as a witness, or even the claimants themselves as witnesses. These, or other witnesses, who could have brought out the relationship between the owner and Shijo, were not produced by the petitioner herein, before the Tribunal. The petitioner has, therefore, not discharged the onus which rested on its shoulders. Since the relationship between the Shijo and the owner has not been established, nor the capacity in which he was riding the vehicle has been brought out, it is not possible for us to conclude, that Shijo while riding the motorcycle on the fateful day, was an agent, employee or representative of the owner. It was open to the petitioner to defeat the claim for compensation raised by the respondents by establishing, that the rider Shijo represented the owner, and as such, was not a third party, in terms of the judgment rendered by this Court in Oriental Insurance Company Limited case (supra). The petitioner failed to discharge the said onus. In view of the above, it is not possible for us to accede to the second contention advanced at the hands of the learned counsel for the petitioner. 30.
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considerations on the basis of a "fault" ground, the same would also fall under the "fault" liability principle. On the contrary, if under a provision, a claimant does not have to establish, that his claim does not arise out of "wrongful act" or "neglect" or "default"; and conversely, the claim cannot be defeated on account of any of the aforesaid considerations; then most certainly, the provision in question will fall under the "no-fault" liabilityis essential for us to determine whether or not the compensation awarded to the claimants/respondents in the present controversy, by the Tribunal, as also, by the High Court, is liable to be set aside on the plea of "negligence" raised at the hands of the petitioner. The award rendered by the Tribunal, as also, the decision of the High Court in favour of the claimants/respondents is, therefore, liable to be reappraised keeping in mind the conclusions recorded by us. In case, the petitioner can establish having pleaded and proved negligence at the hands of the rider Shijo, the petitioner would succeed. The pleadings filed before the Tribunal at the hands of the petitioner, are not before us. What is before us, is the award of the Tribunal dated 19.4.2005. We shall endeavour to determine the plea of negligence advanced at the hands of the learned counsel for the petitioner from theTribunal in holding, that the rider Shijo was responsible for the accident, had placed reliance on copies of the first information report, post mortem certificate, scene mahazor, report of inspection of vehicle, inquest report and final report. Neither of these in our considered view, can constitute proof of "negligence" at the hands of Shijo. Even if he was responsible for the accident, because the motorcycle being ridden by Shijo had admittedly struck against a large laterite stone lying on the tar road. But then, it cannot be overlooked that the solitary witness who had appeared before the Tribunal had deposed, that this has happened because the rider of the motorcycle had given way to a bus coming from the opposite side. Had he not done so there may have been a head-on collusion. Or it may well be, that the bus coming from the opposite side was being driven on the wrong side. This or such other similar considerations would fall in the realm of conjectural determination. In the absence of concrete evidence this factual jumble will remain an unresolved tangle. It has already been concluded hereinabove, that in a claim raised under Section 163A of the Act, the claimants have neither to plead nor to establish negligence. We have also held, that negligence (as also, "wrongful act" and "default") can be established by the owner or the insurance company (as the case may be) to defeat a claim under Section 163A of the Act. It was therefore imperative for the petitioner-Insurance Company to have pleaded negligence, and to have established the same through cogent evidence. This procedure would have afforded an opportunity to the claimants to repudiate the same. Has the petitioner discharged this onus? In the present case, only one witness was produced before the Tribunal. The aforesaid witness appeared for the claimants. The witness asserted, that while giving way to a bus coming from opposite side, the motorcycle being ridden by Shijo, hit a large laterite stone lying on the tar road, whereupon, the motorcycle overturned, and the rider and the pillion-rider suffered injuries. The petitioner insurance-company herein did not produce any witness before the Tribunal. In the absence of evidence to contradict the aforesaid factual position, it is not possible for us to conclude, that Shijo was "negligent" at the time when the accident occurred. Since no pleading or evidence has been brought to our notice (at the hands of the learned counsel for the petitioner), it is not possible for us to conclude, that the inverse onus which has been placed on the shoulders of the petitioner under Section 163A of the Act to establish negligence, has been discharged by it. We, therefore, find no merit in the first contention advanced at the hands of the learned counsel for the appellant.The second contention advanced at the hands of the learned counsel for the petitioner was, that Shijo being the rider of the motorcycle, cannot be treated as a third party. It was pointed out, that the claim under Section 163A can only be raised at the behest of a thirdthe course of hearing, despite our queries, learned counsel for the petitioner could not point out the relationship between Shijo and the owner of the motorcycle involved in the accident. Shijo is not shown to be the employee of the owner. He was not even shown as the representative of the owner. In order to establish the relationship between the Shijo and the owner, the petitioner-Insurance Company could have easily produced either the owner himself as a witness, or even the claimants themselves as witnesses. These, or other witnesses, who could have brought out the relationship between the owner and Shijo, were not produced by the petitioner herein, before the Tribunal. The petitioner has, therefore, not discharged the onus which rested on its shoulders. Since the relationship between the Shijo and the owner has not been established, nor the capacity in which he was riding the vehicle has been brought out, it is not possible for us to conclude, that Shijo while riding the motorcycle on the fateful day, was an agent, employee or representative of the owner. It was open to the petitioner to defeat the claim for compensation raised by the respondents by establishing, that the rider Shijo represented the owner, and as such, was not a third party, in terms of the judgment rendered by this Court in Oriental Insurance Company Limited case (supra). The petitioner failed to discharge the said onus. In view of the above, it is not possible for us to accede to the second contention advanced at the hands of the learned counsel for the petitioner.
|
Sahadevan @ Sagadevan Vs. State Rep by Inspector of Police, Chennai | of Ram Bihari Yadav v. State of Bihar & Ors. [1998 4 SCC 517 ] may be noted: "Though the prosecution has to prove the case against the accused in the manner stated by it and that any act or omission on the part of the prosecution giving rise to any reasonable doubt would go in favour of the accused, yet in a case like the present one where the record shows that investigating officers created a mess by bringing on record dying declaration and GD Entry and have exhibited remiss and/or deliberately omitted to do what they ought to have done to bail out the appellant who was a member of the police force or for any extraneous reason, the interest of justice demands that such acts or omissions of the officers of the prosecution should not be taken in favour of the accused, for that would amount to giving premium of the wrongs of the prosecution designedly committed to favour the appellant. In such cases, the story of the prosecution will have to be examined dehors such omissions and contaminated conduct of the officials otherwise the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the law enforcing agency but also in the administration of justice." 24. Placing reliance on the above enunciation of law, we reject the above argument of the appellants. 25. It is then contended on behalf of the appellants that the Police Officers have no motive whatsoever to have committed the murder of Vadivelu and the prosecution case being one of circumstantial evidence, the benefit of doubt should be given to the appellants. We do not think it is possible to accede to this request of the appellants either. This Court had held in the case of circumstantial evidence that if the circumstances relied upon by the prosecution are proved beyond doubt, then the absence of motive would not hamper a conviction. See Mani Kumar Thapa v. State of Sikkim [2002 7 SCC 157 ].26. On behalf of appellant No.1, it is then argued that the said appellant was not the investigating officer in Crime No.37/85 and he had no reason whatsoever to take part in the beating of the deceased, and that it is clear from the prosecution case that this appellant was not with A-2 when Vadivelu was taken to be produced before PW-25. According to the learned counsel, A-1 was in a meeting between 9 a.m. and 2 p.m. on 5.3.1985 with his superior officers which is proved by the evidence of PW-25. Therefore, he contended that this appellant had no part to play in the alleged murder of Vadivelu and he has been implicated falsely. We cannot accept this evidence addressed on behalf of appellant No.1. It is true that this accused was not the investigating officer in the case of double murder. Still it is clear from the evidence that he was in the Police Station when Vadivelu was brought to the Police Station. From the evidence of PW-8, it is seen that he also took part in the assasult on Vadivelu. It is further clear from the evidence of PWs. 1 and 5 that this appellant was found in the company of Vadivelu and A-2 when they came to the house of PW-1 at about 5 p.m. on 5.3.1985. It is also clear from the evidence of PWs.1, 5 and 14 that this appellant went to the house of PW-1 at about 2 a.m. in the morning of 6.3.1985 to inform PW-1 that Vadivelu had escaped from the Police Station. In such circumstances, we are of the opinion that the arguments addressed on behalf of this appellant cannot be accepted. 27. Before concluding, we think it appropriate to refer to some of the observations of this Court in a case akin to the facts of the present case - that is the case of Bhagwan Singh & Anr. vs. State of Punjab, 1992 (3) SCC 249 which appropriately refers to the duties of the police officers and the consequences of their act which may have a bearing on the facts of this case. "A case cannot be thrown out merely on the ground that the dead body is not traced when the other evidence clinchingly establishes that the deceased met his death at the hands of the accused. It may be a legitimate right of any police officer to interrogate or arrest any suspect on some credible material but it is needless to say that such an arrest must be in accordance with the law and the interrogation does not mean inflicting injuries. It should be in its true sense and purposeful namely to make the investigation effective. Torturing a person and using third degree methods are of medieval nature and they are barbaric and contrary to law. The police would be accomplishing behind their closed doors precisely what the demands of our legal order forbid. In Dagdu v. State of Maharashtra this Court observed as under: (SCC p.92, para 88)The police, with their wide powers, are apt to overstep their zeal to detect crimes and are tempted to use the strong arm against those who happen to fall under their secluded jurisdiction. That tendency and that temptation must in the larger interest of justice be nipped in the bud.It is a pity that some of the police officers, as it has happened in this case, have not shed such methods even in the modern age. They must adopt some scientific methods than resorting to physical torture. If the custodians of law themselves indulge in committing crimes then no members of the society is safe and secure. If police officers who have to provide security and protection to the citizens indulge in such methods they are creating a sense of insecurity in the minds of the citizens. It is more heinous than a game-keeper becoming a poacher." | 0[ds]12. So far as the circumstances which pertains to the production of Vadivelu beforein Wallajahbad Police Station is concerned, there is evidence of PWs. 3,4, and 8 which, in our opinion, is practically admitted by the defence. It is not in dispute that Vadivelu was one of the suspects in Crime No. 141/85 and the police of Wallajahbad Police Station were on the look out for him. It is not in dispute, as spoken to bythat he along withand another constable was deputed to trace the said Vadivelu on 28.2.1988. It is also clear from the evidence of PWs 3 and 4 that they sought help of Sivaprakasam, theof the deceased to identify and trace the said Vadivelu since PWs 3 and 4 did not know Vadivelu personally. From the evidence ofit is to be seen that these persons i.e PWs 3, 4 Sivaprakasam and another constable searched for Vadivelu in Kancheepuram, Gudiatham, Keelapatti, Ambur, Vyasarpadi and finally traced him at Chennai and brought him to the police station at Wallajahbad on 5.3.1985 morning. This was also spoken to, bywho according to his evidence was already in police custody on that day in Wallajahbad Police Station. This evidence of PWs 3 and 4 is not challenged in theAs a matter of fact as observed by the two courts below, even in their statement made under Section 313 Cr. P.C., the appellants have not disputed that fact that Vadivelu was produced in the police station.of course, in his statement had stated that he was produced beforemeaning thereby, he was not produced before him. But the actual factum of production of Vadivelu in the police station on 5.3.1985 is not disputed, In these circumstances, it is clear that Vadivelu was in the police station on 5.3.1985. It is seen from the evidence ofthat he sawassaulting Vadivelu with a Ruler. In regard to this part of the prosecution case, the defence contends that there is no material to show that this witness was in fact in police custody on 5.3.1985 because the official records of the police station shows his arrest has been made only on 9.3.1985. But in the8 in specific terms has stated that he was arrested before Vadivelu was brought to the police station and kept in the police station illegally and he was in such custody for about 20 days before he was produced before the Magistrate. The two courts below, in our opinion, rightly rejected the defence case thatwas arrested only on 9.3.1985 and, therefore, we have no hesitation in accepting the fact thatevidence as to the beating of Vadivelu on 5.3.1985 in the police station at Wallajahbad. The same cannot be rejected merely on a suggestion made by the defence. It is also clear from the evidence ofproduced Vadivelu before him on 5.3.1985 sometime in the afternoon. This factor also goes to show thateven according towas with Vadivelu on 5.3.1985 in the afternoon. From the evidence of PWs 1 and 5, it is clear that on the evening of 5.3.1985 Vadivelu was in the company of2. Therefore, it is clear that the prosecution has established beyond all reasonable doubts that Vadivelu was in the company of2, atleast till about 5 p.m. in the evening of 5.3.1985. On the basis of the above evidence, it can be safely concluded that the first circumstances alleged against the accused person stands proved by the evidence of the prosecution.13. In regard to the second circumstances which speaks of the factum of assault of Vadivelu by2, the same is sought to be established by the prosecution from the evidence ofWe have already held that the prosecution case thatwas arrested much earlier than 9.3.l1985 and was in the Wallajahbad Police Station on 5.3.1985 is acceptable. Therefore, the defence case that Vadivelu was arrest only on 9.3.1985 has to be rejected. In such circumstances and having perused his evidence and the line ofwe are satisfied that the evidence ofas accepted by the two courts below must be true and, therefore, we find no reason to differ from the findings of two courts below and hold that the prosecution has established that fact thatwas witnessed the assault of Vadivelu by the appellants on 5.3.1995, when he was brought to the Wallajahbad Police Station.From the evidence ofand PWs 1 and 5, it is clear thatdid go to the house ofin the early morning at 2 a.m. on. 6.3.1985 and ask her for a photograph of the deceased and offered to pay Rs.20/towards the expenses ofthat her husband had escaped from their custody while sleeping in the Verandah. This shows thathas made out a case of escape of the Vadivelu on the night of 5.3.1985. Therefore, it is clear that circumstances No.4 relied upon by the prosecution as to the appellants trying to make out a false case of Vadivelu escaping from the police station standsapart, it is seen from the evidence ofthat on the day when Vadivelu went missing, he was wearing a white shirt and a white dhoti.the Constable who arrested Vadivelu has in his evidence stated that when he arrested him and produced him Wallajahbad Police Station, he was wearing a white shirt and a white dhoti. The dead body which was found in Crime No. 141/85 was also found wearing a white shirt and a white dhoti. This further supports the prosecution case in regard to the identification of the dead body. The fact that PWs. 1 and did not speak about the approximate height and the weight of Vadivelu would not, in our opinion, on the facts of this case outweigh the other evidence adduced by the prosecution for the identification of the dead body. In our opinion, the High Court has put an undue emphasis onof the approximate height and weight of Vadivelu, especially when 3 very specific identification mark were pointed out by these witnesses. The fact that these identification marks were stated by these witnesses in their subsequent statement also would not, in our opinion, in any manner reduce the evidentiary value of their evidence. In these circumstances, we are of the considered opinion that the Sessions Court was justified in placing reliance on this part of the prosecution evidence and coming to the conclusion that the body which was recovered in Crime No. 141/85 was that of Vadivelu, and that the High Court was not justified in reversing this finding while coming to this conclusion. We have deliberately not placed any reliance on the evidence ofsince we find some force in the arguments addressed on behalf of the appellants that the identification through the photograph made byafter nearly 7 years may not be safe to be reliedpart of the evidence ofhas gone unchallenged in theand, therefore, we will have to proceed on the basis that, what is stated byin this regard is true. If that be so, the prosecution has established the fact that on 5.3.1985 at 5 p.m. Vadivelu was still in the company of these appellants and, therefore, in the absence of any specific explanation from the apellants in this regard, and in view of the other incriminating circumstances against the appellants having been proved by the prosecution, an adverse inference will have to be drawn against these appellants as to their part in the missing of Vadivelu. At this point, it may be relevant to note that though no specific stand has been taken by the appellants as to their parting company with Vadivelu, in their statement under Section 313 Cr. P.C., it is seen from the evidence of PWs. 1 and 5 thattold the said witnesses on the night intervening between 5th and 6th March, 1985 that Vadivelu and escaped from the Police Station when the was allowed to sleep in the verandah of the Police Station. This explanation given bywhich was also heard by PWs.5 and 14, clearly shows that the same is totally false and obviously was an excuse made by the appellants to conceal the true facts and, therefore, this circumstance ofmaking a false statement tocan also be taken as a circumstance against the appellants, in establishing the appellants guilt. This Court in more than one case has held, that if the prosecution, based on reliable evidence, establishes that the missing person was last seen in the company of the accused and was never seen thereafter, it is obligatory on the accused to explain the circumstances in which the missing person and the accused parted company. See Joseph v. State of Kerala [2000 5 SCC 197 ]. Therefore, we are in agreement with the finding of the courts below that circumstance No.7 also stands established against thefind, having permitted this document to be put in evidence by consent, the defence has denied the prosecution an opportunity of properly bringing the said document in evidence and, hence, we think that it is not appropriate for us to permit the appellants to raise this objection at this belatedis true that there the some inconsistencies in the prosecution case, but then we cannot be oblivious of the fact that this case had a chequered carrer because of the involvement of the Police Officer in the death of Vadivelu. It has come or record, that based on the allegations made in a habeas corpus writ petition, the High Court of Madras had directed an investigation to be conducted as to the missing ofthe trial, we find some material witnesses have turned hostile and other witnesses likewho even though did not turn hostile, have tried to help the defence to the best possible extent. Thus, it has become the duty of the courts below to find out the truth as to the prosecution case. In a situation like this, as held by this Court, the benefit of an act or omission of the investigating agency, should not go to the accused in the interest of justice.It is then contended on behalf of the appellants that the Police Officers have no motive whatsoever to have committed the murder of Vadivelu and the prosecution case being one of circumstantial evidence, the benefit of doubt should be given to the appellants. We do not think it is possible to accede to this request of the appellants either. This Court had held in the case of circumstantial evidence that if the circumstances relied upon by the prosecution are proved beyond doubt, then the absence of motive would not hamper a conviction. See Mani Kumar Thapa v. State of Sikkim [2002 7 SCC 157 ].26. On behalf of appellant No.1, it is then argued that the said appellant was not the investigating officer in Crime No.37/85 and he had no reason whatsoever to take part in the beating of the deceased, and that it is clear from the prosecution case that this appellant was not withwhen Vadivelu was taken to be produced beforeg to the learned counsel,was in a meeting between 9 a.m. and 2 p.m. on 5.3.1985 with his superior officers which is proved by the evidence of, he contended that this appellant had no part to play in the alleged murder of Vadivelu and he has been implicated falsely.Before concluding, we think it appropriate to refer to some of the observations of this Court in a case akin to the facts of the present casethat is the case of Bhagwan Singh & Anr. vs. State of Punjab, 1992 (3) SCC 249 which appropriately refers to the duties of the police officers and the consequences of their act which may have a bearing on the facts of thiscase cannot be thrown out merely on the ground that the dead body is not traced when the other evidence clinchingly establishes that the deceased met his death at the hands of the accused. It may be a legitimate right of any police officer to interrogate or arrest any suspect on some credible material but it is needless to say that such an arrest must be in accordance with the law and the interrogation does not mean inflicting injuries. It should be in its true sense and purposeful namely to make the investigation effective. Torturing a person and using third degree methods are of medieval nature and they are barbaric and contrary to law. The police would be accomplishing behind their closed doors precisely what the demands of our legal order forbid. In Dagdu v. State of Maharashtra this Court observed as under: (SCC p.92, para 88)The police, with their wide powers, are apt to overstep their zeal to detect crimes and are tempted to use the strong arm against those who happen to fall under their secluded jurisdiction. That tendency and that temptation must in the larger interest of justice be nipped in the bud.It is a pity that some of the police officers, as it has happened in this case, have not shed such methods even in the modern age. They must adopt some scientific methods than resorting to physical torture. If the custodians of law themselves indulge in committing crimes then no members of the society is safe and secure. If police officers who have to provide security and protection to the citizens indulge in such methods they are creating a sense of insecurity in the minds of the citizens. It is more heinous than abecoming a poacher." | 0 | 6,903 | 2,382 | ### Instruction:
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of Ram Bihari Yadav v. State of Bihar & Ors. [1998 4 SCC 517 ] may be noted: "Though the prosecution has to prove the case against the accused in the manner stated by it and that any act or omission on the part of the prosecution giving rise to any reasonable doubt would go in favour of the accused, yet in a case like the present one where the record shows that investigating officers created a mess by bringing on record dying declaration and GD Entry and have exhibited remiss and/or deliberately omitted to do what they ought to have done to bail out the appellant who was a member of the police force or for any extraneous reason, the interest of justice demands that such acts or omissions of the officers of the prosecution should not be taken in favour of the accused, for that would amount to giving premium of the wrongs of the prosecution designedly committed to favour the appellant. In such cases, the story of the prosecution will have to be examined dehors such omissions and contaminated conduct of the officials otherwise the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the law enforcing agency but also in the administration of justice." 24. Placing reliance on the above enunciation of law, we reject the above argument of the appellants. 25. It is then contended on behalf of the appellants that the Police Officers have no motive whatsoever to have committed the murder of Vadivelu and the prosecution case being one of circumstantial evidence, the benefit of doubt should be given to the appellants. We do not think it is possible to accede to this request of the appellants either. This Court had held in the case of circumstantial evidence that if the circumstances relied upon by the prosecution are proved beyond doubt, then the absence of motive would not hamper a conviction. See Mani Kumar Thapa v. State of Sikkim [2002 7 SCC 157 ].26. On behalf of appellant No.1, it is then argued that the said appellant was not the investigating officer in Crime No.37/85 and he had no reason whatsoever to take part in the beating of the deceased, and that it is clear from the prosecution case that this appellant was not with A-2 when Vadivelu was taken to be produced before PW-25. According to the learned counsel, A-1 was in a meeting between 9 a.m. and 2 p.m. on 5.3.1985 with his superior officers which is proved by the evidence of PW-25. Therefore, he contended that this appellant had no part to play in the alleged murder of Vadivelu and he has been implicated falsely. We cannot accept this evidence addressed on behalf of appellant No.1. It is true that this accused was not the investigating officer in the case of double murder. Still it is clear from the evidence that he was in the Police Station when Vadivelu was brought to the Police Station. From the evidence of PW-8, it is seen that he also took part in the assasult on Vadivelu. It is further clear from the evidence of PWs. 1 and 5 that this appellant was found in the company of Vadivelu and A-2 when they came to the house of PW-1 at about 5 p.m. on 5.3.1985. It is also clear from the evidence of PWs.1, 5 and 14 that this appellant went to the house of PW-1 at about 2 a.m. in the morning of 6.3.1985 to inform PW-1 that Vadivelu had escaped from the Police Station. In such circumstances, we are of the opinion that the arguments addressed on behalf of this appellant cannot be accepted. 27. Before concluding, we think it appropriate to refer to some of the observations of this Court in a case akin to the facts of the present case - that is the case of Bhagwan Singh & Anr. vs. State of Punjab, 1992 (3) SCC 249 which appropriately refers to the duties of the police officers and the consequences of their act which may have a bearing on the facts of this case. "A case cannot be thrown out merely on the ground that the dead body is not traced when the other evidence clinchingly establishes that the deceased met his death at the hands of the accused. It may be a legitimate right of any police officer to interrogate or arrest any suspect on some credible material but it is needless to say that such an arrest must be in accordance with the law and the interrogation does not mean inflicting injuries. It should be in its true sense and purposeful namely to make the investigation effective. Torturing a person and using third degree methods are of medieval nature and they are barbaric and contrary to law. The police would be accomplishing behind their closed doors precisely what the demands of our legal order forbid. In Dagdu v. State of Maharashtra this Court observed as under: (SCC p.92, para 88)The police, with their wide powers, are apt to overstep their zeal to detect crimes and are tempted to use the strong arm against those who happen to fall under their secluded jurisdiction. That tendency and that temptation must in the larger interest of justice be nipped in the bud.It is a pity that some of the police officers, as it has happened in this case, have not shed such methods even in the modern age. They must adopt some scientific methods than resorting to physical torture. If the custodians of law themselves indulge in committing crimes then no members of the society is safe and secure. If police officers who have to provide security and protection to the citizens indulge in such methods they are creating a sense of insecurity in the minds of the citizens. It is more heinous than a game-keeper becoming a poacher."
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missing of Vadivelu. At this point, it may be relevant to note that though no specific stand has been taken by the appellants as to their parting company with Vadivelu, in their statement under Section 313 Cr. P.C., it is seen from the evidence of PWs. 1 and 5 thattold the said witnesses on the night intervening between 5th and 6th March, 1985 that Vadivelu and escaped from the Police Station when the was allowed to sleep in the verandah of the Police Station. This explanation given bywhich was also heard by PWs.5 and 14, clearly shows that the same is totally false and obviously was an excuse made by the appellants to conceal the true facts and, therefore, this circumstance ofmaking a false statement tocan also be taken as a circumstance against the appellants, in establishing the appellants guilt. This Court in more than one case has held, that if the prosecution, based on reliable evidence, establishes that the missing person was last seen in the company of the accused and was never seen thereafter, it is obligatory on the accused to explain the circumstances in which the missing person and the accused parted company. See Joseph v. State of Kerala [2000 5 SCC 197 ]. Therefore, we are in agreement with the finding of the courts below that circumstance No.7 also stands established against thefind, having permitted this document to be put in evidence by consent, the defence has denied the prosecution an opportunity of properly bringing the said document in evidence and, hence, we think that it is not appropriate for us to permit the appellants to raise this objection at this belatedis true that there the some inconsistencies in the prosecution case, but then we cannot be oblivious of the fact that this case had a chequered carrer because of the involvement of the Police Officer in the death of Vadivelu. It has come or record, that based on the allegations made in a habeas corpus writ petition, the High Court of Madras had directed an investigation to be conducted as to the missing ofthe trial, we find some material witnesses have turned hostile and other witnesses likewho even though did not turn hostile, have tried to help the defence to the best possible extent. Thus, it has become the duty of the courts below to find out the truth as to the prosecution case. In a situation like this, as held by this Court, the benefit of an act or omission of the investigating agency, should not go to the accused in the interest of justice.It is then contended on behalf of the appellants that the Police Officers have no motive whatsoever to have committed the murder of Vadivelu and the prosecution case being one of circumstantial evidence, the benefit of doubt should be given to the appellants. We do not think it is possible to accede to this request of the appellants either. This Court had held in the case of circumstantial evidence that if the circumstances relied upon by the prosecution are proved beyond doubt, then the absence of motive would not hamper a conviction. See Mani Kumar Thapa v. State of Sikkim [2002 7 SCC 157 ].26. On behalf of appellant No.1, it is then argued that the said appellant was not the investigating officer in Crime No.37/85 and he had no reason whatsoever to take part in the beating of the deceased, and that it is clear from the prosecution case that this appellant was not withwhen Vadivelu was taken to be produced beforeg to the learned counsel,was in a meeting between 9 a.m. and 2 p.m. on 5.3.1985 with his superior officers which is proved by the evidence of, he contended that this appellant had no part to play in the alleged murder of Vadivelu and he has been implicated falsely.Before concluding, we think it appropriate to refer to some of the observations of this Court in a case akin to the facts of the present casethat is the case of Bhagwan Singh & Anr. vs. State of Punjab, 1992 (3) SCC 249 which appropriately refers to the duties of the police officers and the consequences of their act which may have a bearing on the facts of thiscase cannot be thrown out merely on the ground that the dead body is not traced when the other evidence clinchingly establishes that the deceased met his death at the hands of the accused. It may be a legitimate right of any police officer to interrogate or arrest any suspect on some credible material but it is needless to say that such an arrest must be in accordance with the law and the interrogation does not mean inflicting injuries. It should be in its true sense and purposeful namely to make the investigation effective. Torturing a person and using third degree methods are of medieval nature and they are barbaric and contrary to law. The police would be accomplishing behind their closed doors precisely what the demands of our legal order forbid. In Dagdu v. State of Maharashtra this Court observed as under: (SCC p.92, para 88)The police, with their wide powers, are apt to overstep their zeal to detect crimes and are tempted to use the strong arm against those who happen to fall under their secluded jurisdiction. That tendency and that temptation must in the larger interest of justice be nipped in the bud.It is a pity that some of the police officers, as it has happened in this case, have not shed such methods even in the modern age. They must adopt some scientific methods than resorting to physical torture. If the custodians of law themselves indulge in committing crimes then no members of the society is safe and secure. If police officers who have to provide security and protection to the citizens indulge in such methods they are creating a sense of insecurity in the minds of the citizens. It is more heinous than abecoming a poacher."
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Controller Of Estate Duty, Madras Vs. C. R. Ramachandra Gounder | property after getting possession from the firm to some other person totally unconnected with the donor. Such an unreasonable requirement the law does not postulate. The possession which the donor can give is the legal possession which the circumstances and the nature of the property would admit. This he has given. The benefit the donor had as a member of the partnership, was not a benefit referable in any way to the gift but is unconnected therewith. The Privy Council in Munro v. Commr. of Stamp Duties, 1934 AC 61 was dealing with a case of a similar nature. The donor in that case by six registered transfers in the form prescribed, transferred by way of gift all his right, title and interest in portions of his land to each of his four sons and to trustees for each of his two daughters and their children. The four sons and the two daughters were, prior to this transfer on a verbal agreement with the donor, treated as partners of the business carried on by him as grazier of the land owned by him. The evidence showed that the transfers were taken subject to the partnership agreement and on the understanding that any partner could withdraw and work his land separately. On an analogous provision of the law, the Privy Council thought it unnecessary to determine the precise nature of the right of the partnership at the time of the transfers because it was either a tenacy during the term of the partnership or a licence coupled with an interest. Lord Tomlin, giving his opinion, observed at p. 67, that "the benefit which the donor had as a member of the partnership in the right to which the gift was subject was not in their Lordships opinion a benefit referable in any way to the gift". This decision was referred to and distinguished in Clifford John Chick v. Commr. of Stamp Duties, (1959) 37 ITR (ED) 89 (PC) and though it was considered to have no application to the case at point, Viscount Simonds observed at p. 97 : "It must often be a matter of fine distinction what is the subject-matter of gift. If, as in Munros case, 1934 AC 61 the gift is of a property shorn of certain of the rights which appertain to complete ownership, the donor cannot, merely because he remains in possession and enjoyment of those rights, be said within the meaning of the section not to be excluded from possession and enjoyment of that which he has given." In the Commr. of Stamp Duties of New South Wales v. Perpetual Trustee Co. Ltd. 1943 AC 425, the Privy Council further elaborated the concept of the nature of possession required to be given to the donee as not to attract the analogous provisions of the Commonwealth Act. Lord Russell of Killowen observed at p. 440 :"The linking of possession with enjoyment as a composite object which has to be assumed by the donee indicates that the possession and enjoyment contemplated is beneficial possession and enjoyment by the object of the donors bounty..................because the son was (through the medium of the trustees) immediately put in such bona fide beneficial possession and enjoyment of the property comprised in the gift as the nature of the gift and the circumstances permitted. Did he assume it, and thenceforth retain it to the entire exclusion of the donor ? The answer, their Lordships think, must be in the affirmative, and for two reasons: (1) the settlor had no enjoyment and possession and enjoyment as he had from the fact that the legal ownership of the shares vested in him and his co-trustees as joint tenants, was had by him solely on behalf of the donee. In his capacity as donor he was entirely excluded from possession and enjoyment of what he had given to his son Did the donee retain possession and enjoyment to the entire exclusion of any benefit to the settlor of whatever kind or in any way whatsoever ? Clearly yes."The views expressed by the Privy Council are in complete accord with our views already expressed. This was also the view held in Controller of Estate Duty, Mysore v. S. Aswathanarayana Setty, (1969) 72 ITR 29 (Mys), where a Bench of the Mysore High Court considered both the cases of Clifford John Chick and of Munro above referred to. In that case, on June 30, 1954, the deceased transferred to his two sons Rs. 57,594 being half of the share standing to his credit as on that date in the books of a firm in which he was a partner and from July 1, 1954, the sons were also taken as partners in the firm. On the death of the deceased on November 16, 1957, the Assistant Controller held that the amount transferred to the sons must be deemed to pass as per the provisions of S. 10 of the Estate Duty Act, which decision was confirmed by the Appellate Controller. The Tribunal, however, held that the sum which subsequently was rectified to be Rs. 73,695 was not so includible. One of us (Hegde, J., as he then was), speaking for the Bench, observed at p. 32 :"On the facts of the case, it cannot be said that, after the gifts, the donees did not retain the property gifted to the entire exclusion of the donor or that the donor had any benefit either by contract or otherwise in the property gifted. That in order that the property could deem to pass and estate duty could be leviable in such cases, the benefit of the donor must be a benefit referable to his own property. The view, that if it is once found that the deceased had some benefit in the property, that in itself was sufficient to bring the case within the ambit of section 10 irrespective of the question whether that benefit was referable or not referable to the gift, in our opinion, is erroneous." | 0[ds]5. There is no doubt on the facts of this case, the first two conditions are satisfied because there is an unequivocal transfer of the property and also of the money, in the one case by a settlement deed, and in the other by crediting the amount of Rs. 20,000/- in each of the sons account with the firm which thenceforward became liable to the sons for the payment of the said amount and the interest at 7 1/2 % per annum thereon. In these circumstances, the Revenue has failed to establish that the donees had not retained possession and enjoyment of the property or the amount and that the deceased was not entirely excluded from the possession and enjoyment thereof. The last limb of the condition relating to any benefit to the donor by contract or otherwise is inapplicable in this case. The donor on the date when he gifted the property to his sons which was leased out to the firm, had two rights, namely, of ownership in the property and the right to terminate the tenancy and obtain possession thereof. There is no dispute that the ownership has been transferred subject to the tenancy at will granted to the firm, to the donors two sons because the firm from thenceforward had attorned to the donees as their tenant by crediting the rent of Rs. 300/- to the respective accounts in equal moiety. The donor could, therefore, only transfer possession of the property which the nature of that property was capable of, which in this case is subject to the tenancy.He could do nothing else to transfer the possession in any other manner unless he was required to effectuate the gift for the purpose of S. 10 of the Act by getting the firm to vacate the premises and handing over possession of the same to the donees leaving the donees thereafter to lease it out to theviews expressed by the Privy Council are in complete accord with our views already expressed. This was also the view held in Controller of Estate Duty, Mysore v. S. Aswathanarayana Setty, (1969) 72 ITR 29 (Mys), where a Bench of the Mysore High Court considered both the cases of Clifford John Chick and of Munro above referred to. In that case, on June 30, 1954, the deceased transferred to his two sons Rs. 57,594 being half of the share standing to his credit as on that date in the books of a firm in which he was a partner and from July 1, 1954, the sons were also taken as partners in the firm. On the death of the deceased on November 16, 1957, the Assistant Controller held that the amount transferred to the sons must be deemed to pass as per the provisions of S. 10 of the Estate Duty Act, which decision was confirmed by the Appellate Controller. The Tribunal, however, held that the sum which subsequently was rectified to be Rs. 73,695 was not so includible. One of us (Hegde, J., as he then was), speaking for the Bench, observed at p. 32the facts of the case, it cannot be said that, after the gifts, the donees did not retain the property gifted to the entire exclusion of the donor or that the donor had any benefit either by contract or otherwise in the property gifted. That in order that the property could deem to pass and estate duty could be leviable in such cases, the benefit of the donor must be a benefit referable to his own property. The view, that if it is once found that the deceased had some benefit in the property, that in itself was sufficient to bring the case within the ambit of section 10 irrespective of the question whether that benefit was referable or not referable to the gift, in our opinion, is erroneous." | 0 | 2,950 | 709 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
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property after getting possession from the firm to some other person totally unconnected with the donor. Such an unreasonable requirement the law does not postulate. The possession which the donor can give is the legal possession which the circumstances and the nature of the property would admit. This he has given. The benefit the donor had as a member of the partnership, was not a benefit referable in any way to the gift but is unconnected therewith. The Privy Council in Munro v. Commr. of Stamp Duties, 1934 AC 61 was dealing with a case of a similar nature. The donor in that case by six registered transfers in the form prescribed, transferred by way of gift all his right, title and interest in portions of his land to each of his four sons and to trustees for each of his two daughters and their children. The four sons and the two daughters were, prior to this transfer on a verbal agreement with the donor, treated as partners of the business carried on by him as grazier of the land owned by him. The evidence showed that the transfers were taken subject to the partnership agreement and on the understanding that any partner could withdraw and work his land separately. On an analogous provision of the law, the Privy Council thought it unnecessary to determine the precise nature of the right of the partnership at the time of the transfers because it was either a tenacy during the term of the partnership or a licence coupled with an interest. Lord Tomlin, giving his opinion, observed at p. 67, that "the benefit which the donor had as a member of the partnership in the right to which the gift was subject was not in their Lordships opinion a benefit referable in any way to the gift". This decision was referred to and distinguished in Clifford John Chick v. Commr. of Stamp Duties, (1959) 37 ITR (ED) 89 (PC) and though it was considered to have no application to the case at point, Viscount Simonds observed at p. 97 : "It must often be a matter of fine distinction what is the subject-matter of gift. If, as in Munros case, 1934 AC 61 the gift is of a property shorn of certain of the rights which appertain to complete ownership, the donor cannot, merely because he remains in possession and enjoyment of those rights, be said within the meaning of the section not to be excluded from possession and enjoyment of that which he has given." In the Commr. of Stamp Duties of New South Wales v. Perpetual Trustee Co. Ltd. 1943 AC 425, the Privy Council further elaborated the concept of the nature of possession required to be given to the donee as not to attract the analogous provisions of the Commonwealth Act. Lord Russell of Killowen observed at p. 440 :"The linking of possession with enjoyment as a composite object which has to be assumed by the donee indicates that the possession and enjoyment contemplated is beneficial possession and enjoyment by the object of the donors bounty..................because the son was (through the medium of the trustees) immediately put in such bona fide beneficial possession and enjoyment of the property comprised in the gift as the nature of the gift and the circumstances permitted. Did he assume it, and thenceforth retain it to the entire exclusion of the donor ? The answer, their Lordships think, must be in the affirmative, and for two reasons: (1) the settlor had no enjoyment and possession and enjoyment as he had from the fact that the legal ownership of the shares vested in him and his co-trustees as joint tenants, was had by him solely on behalf of the donee. In his capacity as donor he was entirely excluded from possession and enjoyment of what he had given to his son Did the donee retain possession and enjoyment to the entire exclusion of any benefit to the settlor of whatever kind or in any way whatsoever ? Clearly yes."The views expressed by the Privy Council are in complete accord with our views already expressed. This was also the view held in Controller of Estate Duty, Mysore v. S. Aswathanarayana Setty, (1969) 72 ITR 29 (Mys), where a Bench of the Mysore High Court considered both the cases of Clifford John Chick and of Munro above referred to. In that case, on June 30, 1954, the deceased transferred to his two sons Rs. 57,594 being half of the share standing to his credit as on that date in the books of a firm in which he was a partner and from July 1, 1954, the sons were also taken as partners in the firm. On the death of the deceased on November 16, 1957, the Assistant Controller held that the amount transferred to the sons must be deemed to pass as per the provisions of S. 10 of the Estate Duty Act, which decision was confirmed by the Appellate Controller. The Tribunal, however, held that the sum which subsequently was rectified to be Rs. 73,695 was not so includible. One of us (Hegde, J., as he then was), speaking for the Bench, observed at p. 32 :"On the facts of the case, it cannot be said that, after the gifts, the donees did not retain the property gifted to the entire exclusion of the donor or that the donor had any benefit either by contract or otherwise in the property gifted. That in order that the property could deem to pass and estate duty could be leviable in such cases, the benefit of the donor must be a benefit referable to his own property. The view, that if it is once found that the deceased had some benefit in the property, that in itself was sufficient to bring the case within the ambit of section 10 irrespective of the question whether that benefit was referable or not referable to the gift, in our opinion, is erroneous."
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5. There is no doubt on the facts of this case, the first two conditions are satisfied because there is an unequivocal transfer of the property and also of the money, in the one case by a settlement deed, and in the other by crediting the amount of Rs. 20,000/- in each of the sons account with the firm which thenceforward became liable to the sons for the payment of the said amount and the interest at 7 1/2 % per annum thereon. In these circumstances, the Revenue has failed to establish that the donees had not retained possession and enjoyment of the property or the amount and that the deceased was not entirely excluded from the possession and enjoyment thereof. The last limb of the condition relating to any benefit to the donor by contract or otherwise is inapplicable in this case. The donor on the date when he gifted the property to his sons which was leased out to the firm, had two rights, namely, of ownership in the property and the right to terminate the tenancy and obtain possession thereof. There is no dispute that the ownership has been transferred subject to the tenancy at will granted to the firm, to the donors two sons because the firm from thenceforward had attorned to the donees as their tenant by crediting the rent of Rs. 300/- to the respective accounts in equal moiety. The donor could, therefore, only transfer possession of the property which the nature of that property was capable of, which in this case is subject to the tenancy.He could do nothing else to transfer the possession in any other manner unless he was required to effectuate the gift for the purpose of S. 10 of the Act by getting the firm to vacate the premises and handing over possession of the same to the donees leaving the donees thereafter to lease it out to theviews expressed by the Privy Council are in complete accord with our views already expressed. This was also the view held in Controller of Estate Duty, Mysore v. S. Aswathanarayana Setty, (1969) 72 ITR 29 (Mys), where a Bench of the Mysore High Court considered both the cases of Clifford John Chick and of Munro above referred to. In that case, on June 30, 1954, the deceased transferred to his two sons Rs. 57,594 being half of the share standing to his credit as on that date in the books of a firm in which he was a partner and from July 1, 1954, the sons were also taken as partners in the firm. On the death of the deceased on November 16, 1957, the Assistant Controller held that the amount transferred to the sons must be deemed to pass as per the provisions of S. 10 of the Estate Duty Act, which decision was confirmed by the Appellate Controller. The Tribunal, however, held that the sum which subsequently was rectified to be Rs. 73,695 was not so includible. One of us (Hegde, J., as he then was), speaking for the Bench, observed at p. 32the facts of the case, it cannot be said that, after the gifts, the donees did not retain the property gifted to the entire exclusion of the donor or that the donor had any benefit either by contract or otherwise in the property gifted. That in order that the property could deem to pass and estate duty could be leviable in such cases, the benefit of the donor must be a benefit referable to his own property. The view, that if it is once found that the deceased had some benefit in the property, that in itself was sufficient to bring the case within the ambit of section 10 irrespective of the question whether that benefit was referable or not referable to the gift, in our opinion, is erroneous."
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Hindustan Copper Ltd Vs. Monarch Gold Mining Co. Ltd | exercise such a power, the Judge of the High Court and the Judge of the Supreme Court would be exercising the power vested in the Chief Justice of the High Court or in the Chief Justice of India. Therefore, we clarify that the Chief Justice of a High Court can delegate the function under Section 11(6) of the Act to a Judge of that Court and he would actually exercise the power of the Chief Justice conferred under Section 11(6) of the Act. The position would be the same when the Chief Justice of India delegates the power to another Judge of the Supreme Court and he exercises that power as designated by the Chief Justice of India. 43. In this context, it has also to be noticed that there is an ocean of difference between an institution which has no judicial functions and an authority or person who is already exercising judicial power in his capacity as a judicial authority. Therefore, only a Judge of the Supreme Court or a Judge of the High Court could respectively be equated with the Chief Justice of India or the Chief Justice of the High Court while exercising power under Section 11(6) of the Act as designated by the Chief Justice. A non-judicial body or institution cannot be equated with a Judge of the High Court or a Judge of the Supreme Court and it has to be held that the designation contemplated by Section 11(6) of the Act is not a designation to an institution that is incompetent to perform judicial functions. Under our dispensation a non-judicial authority cannot exercise judicial powers. 44. Once we arrive at the conclusion that the proceeding before the Chief Justice while entertaining an application under Section 11(6) of the Act is adjudicatory, then obviously, the outcome of that adjudication is a judicial order. Once it is a judicial order, the same, as far as the High Court is concerned would be final and the only avenue open to a party feeling aggrieved by the order of the Chief Justice would be to approach the Supreme Court under Article 136 of the Constitution. If it were an order by the Chief Justice of India, the party will not have any further remedy in respect of the matters covered by the order of the Chief Justice of India or the Judge of the Supreme Court designated by him and he will have to participate in the arbitration before the Tribunal only on the merits of the claim. Obviously, the dispensation in our country, does not contemplate any further appeal from the decision of the Supreme Court and there appears to be nothing objectionable in taking the view that the order of the Chief Justice of India would be final on the matters which are within his purview, while called upon to exercise his jurisdiction under Section 11 of the Act. It is also necessary to notice in this context that this conclusion of ours would really be in aid of quick disposal of arbitration claims and would avoid considerable delay in the process, an object that is sought to be achieved by the Act. 16. In paragraph 47 (pg. 663) of the Report, this Court in SBP & Co.2 summed up its conclusions. To the extent they are relevant, the conclusions read as under : 47. (i) The power exercised by the Chief Justice of the High Court or the Chief Justice of India under Section 11(6) of the Act is not an administrative power. It is a judicial power. (ii) The power under Section 11(6) of the Act, in its entirety, could be delegated, by the Chief Justice of the High Court only to another Judge of that Court and by the Chief Justice of India to another Judge of the Supreme Court. (iii) In case of designation of a Judge of the High Court or of the Supreme Court, the power that is exercised by the designated Judge would be that of the Chief Justice as conferred by the statute. (iv) The Chief Justice or the designated Judge will have the right to decide the preliminary aspects as indicated in the earlier part of this judgment. These will be his own jurisdiction to entertain the request, the existence of a valid arbitration agreement, the existence or otherwise of a live claim, the existence of the condition for the exercise of his power and on the qualifications of the arbitrator or arbitrators. The Chief Justice or the designated Judge would be entitled to seek the opinion of an institution in the matter of nominating an arbitrator qualified in terms of Section 11(8) of the Act if the need arises but the order appointing the arbitrator could only be that of the Chief Justice or the designated Judge. 17. The exposition of law by a seven-Judge Bench of this Court in SBP & Co.2 , leaves no manner of doubt that the procedure that is being followed by the Calcutta High Court with regard to the consideration of the applications under Section 11 of the 1996 Act is legally impermissible. The piecemeal consideration of the application under Section 11 by the Designate Judge and another Designate Judge or the Chief Justice, as the case may be, is not contemplated by Section 11. The function of the Chief Justice or Designate Judge in consideration of the application under Section 11 is judicial and such application has to be dealt with in its entirety by either Chief Justice himself or the Designate Judge and not by both by making it a two-tier procedure as held in Modi Korea Telecommunications Ltd.1. The distinction drawn by the Division Bench of Calcutta High Court in Modi Korea Telecommunications Ltd.1 between the procedure for appointment of arbitrator and the actual appointment of the arbitrator is not at all well founded. Modi Korea Telecommunications Ltd.1 to the extent it is inconsistent with SBP & Co.2 stands overruled. 18. In view of the above, the | 1[ds]17. The exposition of law by a seven-Judge Bench of this Court in SBP & Co.2 , leaves no manner of doubt that the procedure that is being followed by the Calcutta High Court with regard to the consideration of the applications under Section 11 of the 1996 Act is legally impermissible. The piecemeal consideration of the application under Section 11 by the Designate Judge and another Designate Judge or the Chief Justice, as the case may be, is not contemplated by Section 11. The function of the Chief Justice or Designate Judge in consideration of the application under Section 11 is judicial and such application has to be dealt with in its entirety by either Chief Justice himself or the Designate Judge and not by both by making it a two-tier procedure as held in Modi Korea Telecommunications Ltd.1. The distinction drawn by the Division Bench of Calcutta High Court in Modi Korea Telecommunications Ltd.1 between the procedure for appointment of arbitrator and the actual appointment of the arbitrator is not at all well founded. Modi Korea Telecommunications Ltd.1 to the extent it is inconsistent with SBP & Co.2 stands overruled. | 1 | 4,700 | 204 | ### Instruction:
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exercise such a power, the Judge of the High Court and the Judge of the Supreme Court would be exercising the power vested in the Chief Justice of the High Court or in the Chief Justice of India. Therefore, we clarify that the Chief Justice of a High Court can delegate the function under Section 11(6) of the Act to a Judge of that Court and he would actually exercise the power of the Chief Justice conferred under Section 11(6) of the Act. The position would be the same when the Chief Justice of India delegates the power to another Judge of the Supreme Court and he exercises that power as designated by the Chief Justice of India. 43. In this context, it has also to be noticed that there is an ocean of difference between an institution which has no judicial functions and an authority or person who is already exercising judicial power in his capacity as a judicial authority. Therefore, only a Judge of the Supreme Court or a Judge of the High Court could respectively be equated with the Chief Justice of India or the Chief Justice of the High Court while exercising power under Section 11(6) of the Act as designated by the Chief Justice. A non-judicial body or institution cannot be equated with a Judge of the High Court or a Judge of the Supreme Court and it has to be held that the designation contemplated by Section 11(6) of the Act is not a designation to an institution that is incompetent to perform judicial functions. Under our dispensation a non-judicial authority cannot exercise judicial powers. 44. Once we arrive at the conclusion that the proceeding before the Chief Justice while entertaining an application under Section 11(6) of the Act is adjudicatory, then obviously, the outcome of that adjudication is a judicial order. Once it is a judicial order, the same, as far as the High Court is concerned would be final and the only avenue open to a party feeling aggrieved by the order of the Chief Justice would be to approach the Supreme Court under Article 136 of the Constitution. If it were an order by the Chief Justice of India, the party will not have any further remedy in respect of the matters covered by the order of the Chief Justice of India or the Judge of the Supreme Court designated by him and he will have to participate in the arbitration before the Tribunal only on the merits of the claim. Obviously, the dispensation in our country, does not contemplate any further appeal from the decision of the Supreme Court and there appears to be nothing objectionable in taking the view that the order of the Chief Justice of India would be final on the matters which are within his purview, while called upon to exercise his jurisdiction under Section 11 of the Act. It is also necessary to notice in this context that this conclusion of ours would really be in aid of quick disposal of arbitration claims and would avoid considerable delay in the process, an object that is sought to be achieved by the Act. 16. In paragraph 47 (pg. 663) of the Report, this Court in SBP & Co.2 summed up its conclusions. To the extent they are relevant, the conclusions read as under : 47. (i) The power exercised by the Chief Justice of the High Court or the Chief Justice of India under Section 11(6) of the Act is not an administrative power. It is a judicial power. (ii) The power under Section 11(6) of the Act, in its entirety, could be delegated, by the Chief Justice of the High Court only to another Judge of that Court and by the Chief Justice of India to another Judge of the Supreme Court. (iii) In case of designation of a Judge of the High Court or of the Supreme Court, the power that is exercised by the designated Judge would be that of the Chief Justice as conferred by the statute. (iv) The Chief Justice or the designated Judge will have the right to decide the preliminary aspects as indicated in the earlier part of this judgment. These will be his own jurisdiction to entertain the request, the existence of a valid arbitration agreement, the existence or otherwise of a live claim, the existence of the condition for the exercise of his power and on the qualifications of the arbitrator or arbitrators. The Chief Justice or the designated Judge would be entitled to seek the opinion of an institution in the matter of nominating an arbitrator qualified in terms of Section 11(8) of the Act if the need arises but the order appointing the arbitrator could only be that of the Chief Justice or the designated Judge. 17. The exposition of law by a seven-Judge Bench of this Court in SBP & Co.2 , leaves no manner of doubt that the procedure that is being followed by the Calcutta High Court with regard to the consideration of the applications under Section 11 of the 1996 Act is legally impermissible. The piecemeal consideration of the application under Section 11 by the Designate Judge and another Designate Judge or the Chief Justice, as the case may be, is not contemplated by Section 11. The function of the Chief Justice or Designate Judge in consideration of the application under Section 11 is judicial and such application has to be dealt with in its entirety by either Chief Justice himself or the Designate Judge and not by both by making it a two-tier procedure as held in Modi Korea Telecommunications Ltd.1. The distinction drawn by the Division Bench of Calcutta High Court in Modi Korea Telecommunications Ltd.1 between the procedure for appointment of arbitrator and the actual appointment of the arbitrator is not at all well founded. Modi Korea Telecommunications Ltd.1 to the extent it is inconsistent with SBP & Co.2 stands overruled. 18. In view of the above, the
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17. The exposition of law by a seven-Judge Bench of this Court in SBP & Co.2 , leaves no manner of doubt that the procedure that is being followed by the Calcutta High Court with regard to the consideration of the applications under Section 11 of the 1996 Act is legally impermissible. The piecemeal consideration of the application under Section 11 by the Designate Judge and another Designate Judge or the Chief Justice, as the case may be, is not contemplated by Section 11. The function of the Chief Justice or Designate Judge in consideration of the application under Section 11 is judicial and such application has to be dealt with in its entirety by either Chief Justice himself or the Designate Judge and not by both by making it a two-tier procedure as held in Modi Korea Telecommunications Ltd.1. The distinction drawn by the Division Bench of Calcutta High Court in Modi Korea Telecommunications Ltd.1 between the procedure for appointment of arbitrator and the actual appointment of the arbitrator is not at all well founded. Modi Korea Telecommunications Ltd.1 to the extent it is inconsistent with SBP & Co.2 stands overruled.
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Echjay Industries Private Limited Vs. Echjay Forgings Private Limited | not produced because according to them the minutes were with Bansi Mehta and admittedly, Bansi Mehta was not examined before Mr.Dastur and he was not called upon to produce the original. Taking into consideration the overall documentary and other evidence, Mr.Dastur opined that even though the minutes dated 6th August, 1984 were not signed and though originals were not produced before the Court still this fact could be believed and this explained as to how the amount of 23.47 lakhs was adjusted. Mr.Dastur also observed that even if the minutes dated 6th August, 1984 are not taken into consideration, still on the basis of other evidence, he would come to same conclusion.22. The learned Single Judge noted following Clause from the disputed minutes of the meeting dated 6th August 1984."5. OLD WORKERS LIABILITY: Regarding this liabilities amounting to Rs.23.43 lakhs it was agreed that it will be claimed as expenditure in the hands of Echjay Forgings and an amount of Rs.8.68 lakhs which is net of tax will be paid by Echjay Industries Private Limited to Echjay Forgings and was agreed to be adjusted from the differential payable by Motabhai Group to Maganbhai Group."However, the learned Single Judge held that evidence of Maganlal Doshi was not reliable, Bansi Mehta was not examined, original minutes of the meeting dated 6th August, 1984 were not placed on record and, therefore, these minutes could not be taken into consideration. With these observations, the learned Single Judge came to conclusion that the Industries had failed to prove that the amount of Rs.23.47 lakhs was adjusted against the differential.23. After careful scrutiny of the record, which is discussed at length in the report of Mr.Dastur as well as in the impugned judgment of the learned Single Judge, we find it difficult to uphold the view taken by the learned Single Judge. Admittedly, there was deduction of 13.07 lakhs from the differential of Rs.62.39 lakhs which was required to be paid by Mansukhlal Group to the remaining brothers. Maganlal Doshi explained what this deduction was but there is no acceptable or plausible explanation from Mansukhlal group about this deduction. Report of Mr.Dastur reveals that Mansukhlal group tried to contend that this differential was towards the depreciation of machinery. This could not be accepted for the reason that valuation of the fixed assets, machinery, etc. was already made by H.P.Kumbhani & Company, Chartered Accountants and after that valuation, differential of Rs.62.39 lakhs was found payable by Mansukhlal group. At the cost of repetition, it may be again pointed out that there was no mention or provision about the liability of payment of Rs.23.47 lakhs in the scheme sanctioned by the Court on 3-9-1986. Shortly after the scheme was sanctioned, Forgings sent a debit note of Rs.38,04,580.82 on Industries. However, admittedly in connection with the dispute pertaining to Echjay Electronics Private Limited in Appeal No.784 of 1987 in Notice of Motion No.713 of 1987 in Suit No.757 of 1987, the Forgings was required to pay amount of Rs.45,58,661/- lakhs as per the order dated 14th October, 1987. If any amount was still due for payment from Industries to Forgings, the Forgings would have certainly raised that question and they could not be directed to pay an amount of Rs.45,58,661/- lakhs to the Industries. In the same matter M/s. Bachubhai Munim & Company attorneys for Mansukhlal group also found the differential payable by Mansukhlal group to the remaining brothers. If this amount of Rs.23.47 lakhs had been already satisfied M/s. Bachubhai Munim & Company would have certainly taken note of that while finding out the differential to be paid by Mansukhlal group. However, Bachubhai Munim did not make any mention of Rs.23.47 lakhs while calculating the differential payable by Mansukhlal group. This aspect also goes against the Forgings. Taking into consideration these aspects, we find that payment of Rs.23.47 lakhs towards the liability of erstwhile workers was in fact adjusted by deduction of Rs.8.68 lakhs net of tax from the differentials and the remaining amount was settled as the Forgings got rebate in the income-tax for the payment of Rs.23.47 lakhs towards the workers liability. Taking into consideration overall view of the facts and circumstances, we find ourselves unable to agree with the learned Single Judge on this count. In our opinion, they already satisfied this claim of the Forgings in the differential payable to the Industries as per the minutes of the meeting dated 29th August 1984. Therefore, we find that the decree passed by the learned Single Judge in favour of the Forgings in that respect cannot be sustained.24. Lastly, there is dispute about die-blocks and machinery allegedly transferred from Kanjur Division to Rajkot Division. Mr.Dastur as well as the learned Single Judge found that there was no substance in this claim. The learned Judge also noted that this dispute was not seriously pressed on behalf of the Forgings. In the appeal also though this question has been raised, the learned counsel for the Forgings did not give much emphasis on this question. After going through the report of Mr.Dastur and the judgment of the learned Single Judge on this count, we find no reason to take a different view.25. In view of the evidence discussed above, we find that the Forgings had failed to prove its claim over the General Reserve No.II of Rs.3.25 crores. It also failed to prove its claim about the die-blocks and machinery allegedly transferred from Kanjur Division to Rajkot Division. Taking into consideration the evidence, we find that the Industries have satisfactorily proved that even though the payment of Rs.23.47 lakhs was made by the Forgings towards the liability of erstwhile workmen, the Forgings have been in fact compensated by the Industries by deduction of Rs.8.68 lakhs net of tax from the differential and, therefore, Forgings are not entitled to receive anything more. Therefore, Appeal No.662 of 2001 filed by the Forgings is liable to be dismissed while the Appeal No.532 of 2001 filed by the Industries deserves to be allowed. | 0[ds]Thus, total value of Kanjur Division, including fixed and current assets excluding liabilities, was found to be Rs.151 lakhs. H.P.Kumbhani report suggests that for every 10 shares held in the Industries, the shareholder would get 8 shares of Rs.100/each in the Kanjur Division. Admittedly, total share capital of Industries was 1,92,00,000/comprising of 1,92,000 shares of Rs.100/each. In view of the proposal to allot 8 shares in Forgings for every 10 shares in the Industries, the total 1,53,600/shares of Rs.100/each would be required to be issued in Forgings. Total value of such shares would beThus, allotment of 8 shares per 10 shares in the Industries was the nearest possible figure, taking into consideration the value of assets of Kanjur Division being Rs.The report of H.P.Kumbhani and Co. shows that General Reserve No.II of Industries were not taken into consideration for the purpose of making valuation of the assets of Kanjur Division. It is also material to note that theprepared for Kanjur Division for the years ending 1983 and even in 1984 do not make any reference to General Reserve No.II amounting to Rs.3,25,00,000. On the contrary, theof the Kanjur Division for the year ending with 31st December, 1983 shows reserve transferred from Profit and Loss Account of Rs.8,14,725/et as on 31st December, 1984 shows that Reserves and Surplus column contains opening balance of Rs.8,14,725/and additional appropriation was made during the year to the extent of Rs.Thus, as on 31st December, 1984 the total reserves in theof Kanjur Division were Rs.There is nothing on record to show that General Reserve No.II amounting to Rs.3,25,00,000/was ever shown in the11. It is the contention of Forgings that General Reserve No.II was specifically created to meet the liabilities of workers in view of two cases pending before the Industrial Court and as the said liability was met from the account of Forgings, the General Reserve No.II is liable to be transferred to the Forgings.It is material to note that while General Reserve No.II for an amount of Rs.2,20,00,000/was created by resolution passed by the Board of Directors on 3rd July, 1981, additional amount of Rs.37,00,000/was put in the said reserve on 20th July, 1982. Third addition of Rs.68,54,732/was made in the said reserve by a resolution datedtaking the total of General Reserve No.II to the tune of Rs.Admittedly, on 10th January, 1983, the settlement had taken place with the said workers and as per that settlement, total amount to be paid to the workers was Rs.23,47,000/and the payment of the said amount was actually made from 14th January, 1983 to August, 1983. If the total liability towards the workers was finally settled at Rs.23,47,000/, there could be no reason or justification to make additional reserve of Rs.68,54,732/3 particularly when a huge amount of Rs.2,57,00,000/was already in General Reserve No.II. This clearly reveals that the General Reserve No.II was not created to meet liability towards the workmen.The learned Single Judge referred to several other circumstances to come to conclusion that the claim of the Forgings on General Reserve is not well founded. He noted that in the Company Petitions filed by both the parties, scheme was sanctioned by the Court on 3rd September, 1986. After that on 22nd October, 1986, Forgings forwarded a debit note dated 15th October, 1986 with a covering letter to the Industries claiming amount of Rs.38,04,580.82 paise being the amount paid by the Forgings to the workers with interest at the rate of 15% per annum. This debit note included amount of Rs.23,47,000/which was paid to the workers of the Kanjur Division from the accounts of the Kanjur Division. Balance amount of Rs.14.57 lakhs was interest thereon at the rate of 15% per annum. In that letter or debit note, there is no reference to the claim on the entire amount of General Reserve being Rs.3.25 crores.14. Appeal No.784 of 1987 in Notice of Motion No.713 of 1987 in Suit No.767 of 1987 was filed by Maganlal Doshi and others against Echjay Electronics Private Limited, a company which was allotted to Mansukhlal Group under the family arrangement. In that appeal, a consent order was passed on 14th October, 1987 by the Division Bench of this Court whereby the directors of the Forgings agreed to pay an amount of Rs.45.58 lakhs under Clause 2 of Part I of the scheme to the Industries. This consent order was significant because if the Forgings were really entitled to claim amount of 3.25 crores under the General Reserve No.II, they would not have agreed to pay amount of Rs.45.58 lakhs to the Industries.15. The learned Single Judge noted that a letter dated 1st September, 1987 was addressed by M/s. Bachubhai MunimCo. about computation of differential, which was payable by the Mansukhlal group. M/s. Bachubhai MunimCo. were acting as advocates for Echjay Electronics Pvt. Ltd. in appeal no.784 of 1987 referred above. As per that computation, total net worth of Doshi family together with business interest of the family was stated to be 607.63 lakhs. The share of Mansukhlal group at 20% of the aforesaid amount was assessed to be Rs.121.53 lakhs. However, Mansukhlal group had received Kanjur Division having fixed assets of Rs.86.01 lakhs. As he had received 69.25% share of Doshi family, he had actually received interest of the family worth Rs.59.56 lakhs in the form of fixed assets of the Kanjur Division. He also received net current assets of Rs.45 lakhs being the share of Doshi family in the company. He had also received certain other business concerns like Echjay Electronics Kanjurmarg, Kanjur Bleaching, Hema Suru Corporation, Investment Companies and personal wealth. The total valuation of assets received or retained by Mansukhlal Group worked out to Rs.183.92 lakhs. In view of the fact that Mansukhlal Group was entitled to assets worth Rs.121.53 lakhs, he was required to pay amount of Rs.62.39 lakhs as differential to the remaining group. This calculation made by M/s. Bachubhai fully tallies with the calculation made by H.P.KumbhaniCo. Chartered Accountants. The learned Single Judge noted that this statement of M/s. Bachubhai MunimCo. was accepted as per the admitted Minutes of Meeting dated 29th August, 1984. Here also there was no reference to the claim over the amount of Rs.3.25 crores being General Reserve No.II of the Industries.16. Mr.Dastur as well as the learned Single Judge also noted that as per the verticalto be prepared as per Schedule VI under the Companies Act, the reserves are required to be shown along with the capital. The reserves are to tally with the equivalent assets to be shown in the assets column in theThe assets of Kanjur Division were found to be worth Rs.1.51 crores without any mention of the reserves. If General Reserve of Rs.3.25 crores would be transferred to theof Kanjur Division, the result would be that liability side of thewould increase by Rs.3.25 crores without any corresponding increase in the assets and in the result, net worth of Kanjur Division would be minus Rs.1.74 crores instead of it being Rs.1.51 crores. If that be so Mansukhalal Group would be entitled not only to retain that Kanjur Division but also to receive substantial amount and that too without surrendering their share in other properties of Doshi family. However, as pointed out earlier after making all the calculations, it was found that Mansukhlal was found liable to pay differential of 62.39 lakhs to other group.17. The learned Single Judge has considered all these aspects and several other aspects minutely before coming to conclusion that the Forgings have no right or claim over the General Reserve No.II of Rs.3.25 crores shown in theof Industries. We find no valid reason to disagree with these findings.18.Next important question is about liability to pay amount of Rs.23.47 lakhs in respect of payments made to the workers, whose services were terminated in 1973.The learned Single Judge noted that both the parties have taken shifting stand in this respect. In paragraph 14.1, the learned Single Judge noted that Mr.Thakkar the learned Senior Counsel for the Forgings had submitted that liability to pay workmen was that of Forgings and not of the Industries and Mr.Dada, the learned counsel for the Industries had submitted that the liability in respect of compensation paid to the workmen as the part of the industrial settlement had to be borne by the Industries and not by the Forgings. The learned Single Judge noted that admittedly payment was actually made from the accounts of the Forgings and Industries had failed to prove that the Forgings were compensated for this amount. The learned Single Judge noted that in view of the specific provisions in respect of pending legal proceedings and the liability in respect thereof in the sanctioned scheme, the liability to make payment of compensation to erstwhile workmen was assumed by Forgings and not by the Industries. However, as in the settlement, no provision was made for that amount and as the claim of Forgings over the General Reserve No.II is not acceptable, the Industries are liable to compensate Forgings in that respect. It may be noted that in his report, Mr.Dastur Senior Advocate had come to conclusion that as per the terms of the scheme as sanctioned by the Court, the Forgings had taken over the responsibility only in respect of workmen, who were in service immediately before 31st December, 1982 and also the workers, who were in service after that day and in view of the fact that workmen, about whom two cases were pending before the Industrial Court, were not in service on or immediately before 31st December, 1982, the Forgings had not taken responsibility of the same. Mr.Dastur came to conclusion that it was the responsibility of Industries to pay compensation to the workmen but as the payment was made from the account of the Kanjur Division, the Industries was liable to compensate Kanjur Division. Thus, in spite of divergent opinions about the liability to pay compensation to the workmen, Mr.Dastur as well as the learned Single Judge opined that as the amount was paid from the account of Kanjur Division, Industries are liable to compensate the Forgings. After dealing with the evidence at length, Mr.Dastur opined that the remaining Doshi group family had adjusted that amount in the differential, which was required to be paid by Mansukhlal group to them and thus, Mansukhlal group was compensated. However, the learned Single Judge came to conclusion that evidence in respect of this adjustment in the differential is not reliable and, therefore, the Industries are liable to pay amount of Rs.23.47 lakhs to the Forgings.19. To decide as to whether the Industries is liable to compensate the Forgings for the amount of 23.47 lakhs, in fact it is not necessary to find out under the settlement and under the sanction scheme, who is to meet that liability because Mr.Dastur as well as the learned Single Judge though for different reasons, found that the Industries was to compensate the Forgings. However, in view of difference of opinion, we find it appropriate to scrutinize the record as to what was the settlement in this respect. Mr.Dastur as well as the learned Single Judge rightly observed that the parties have not taken consistent stand about taking over the responsibility of liability to pay compensation to the erstwhile workers of the Kanjurinto consideration the second part ofb(i), there remains no doubt that this responsibility was only in respect of employees, who were in actual service because there could not be any protection of uninterrupted service and the guarantee against any terms of service less favourable than those which were applicable prior to the effective date in respect of the workers, who were not in the employment on the effective date. Such guarantee could be given only to the employees, who were in actual employment on that day. It is nobodys case that 356 employees, whose claims were pending in the industrial disputes, were in the employment on the effective day or immediately preceding the effective day. The learned Single Judge observed that the provisions of the scheme are sufficiently drawn and comprehensive to deal with the question of liability in respect of those workmen of Kanjur Division, who had been terminated prior to the effective day and who had approached the Industrial Tribunal for legal redressal. It is material to note that even though the effective date was 31st December, 1982, the scheme was sanctioned by the Court onThe dispute with those workmen was already settled on 10th January, 1983 and the payment of their claims amounting to Rs.23.47 lakhs was already paid by August, 1983. Therefore, when the scheme was sanctioned, there was no reason to cover those employees. If those employees would have been covered under the scheme, the valuation of Kanjur Division would have certainly taken note of that liability but admittedly there is no reference of that liability in the valuation made by H.P.KumbhaniCo., Chartered Accountants in 1984. Taking into consideration the terms of the scheme, we have no doubt that the Forgings had not taken the responsibility of paying any compensation to the workmen, whose services were terminated in the year 1973 though they were the workers at Kanjur Division. Therefore, we find that it was responsibility of the Industries.20. The question whether the responsibility of the liability towards those workmen was taken over by the Industries or by the Forgings, in fact becomes immaterial because admittedly the payment of that liability was made from the account of the Forgings during the year 1983 and admittedly, no provision was made for that payment in the scheme nor it was provided for in the evaluation report of the Kanjur Division. Therefore, in either case after having made a payment of said Rs.23.47 lakhs, the Forgings would be entitled to be compensated for that amount by the Industries.After careful scrutiny of the record, which is discussed at length in the report of Mr.Dastur as well as in the impugned judgment of the learned Single Judge, we find it difficult to uphold the view taken by the learned Single Judge. Admittedly, there was deduction of 13.07 lakhs from the differential of Rs.62.39 lakhs which was required to be paid by Mansukhlal Group to the remaining brothers. Maganlal Doshi explained what this deduction was but there is no acceptable or plausible explanation from Mansukhlal group about this deduction. Report of Mr.Dastur reveals that Mansukhlal group tried to contend that this differential was towards the depreciation of machinery. This could not be accepted for the reason that valuation of the fixed assets, machinery, etc. was already made by H.P.KumbhaniCompany, Chartered Accountants and after that valuation, differential of Rs.62.39 lakhs was found payable by Mansukhlal group. At the cost of repetition, it may be again pointed out that there was no mention or provision about the liability of payment of Rs.23.47 lakhs in the scheme sanctioned by the Court onShortly after the scheme was sanctioned, Forgings sent a debit note of Rs.38,04,580.82 on Industries. However, admittedly in connection with the dispute pertaining to Echjay Electronics Private Limited in Appeal No.784 of 1987 in Notice of Motion No.713 of 1987 in Suit No.757 of 1987, the Forgings was required to pay amount of Rs.45,58,661/lakhs as per the order dated 14th October, 1987. If any amount was still due for payment from Industries to Forgings, the Forgings would have certainly raised that question and they could not be directed to pay an amount of Rs.45,58,661/lakhs to the Industries. In the same matter M/s. Bachubhai MunimCompany attorneys for Mansukhlal group also found the differential payable by Mansukhlal group to the remaining brothers. If this amount of Rs.23.47 lakhs had been already satisfied M/s. Bachubhai MunimCompany would have certainly taken note of that while finding out the differential to be paid by Mansukhlal group. However, Bachubhai Munim did not make any mention of Rs.23.47 lakhs while calculating the differential payable by Mansukhlal group. This aspect also goes against the Forgings. Taking into consideration these aspects, we find that payment of Rs.23.47 lakhs towards the liability of erstwhile workers was in fact adjusted by deduction of Rs.8.68 lakhs net of tax from the differentials and the remaining amount was settled as the Forgings got rebate in thefor the payment of Rs.23.47 lakhs towards the workers liability. Taking into consideration overall view of the facts and circumstances, we find ourselves unable to agree with the learned Single Judge on this count. In our opinion, they already satisfied this claim of the Forgings in the differential payable to the Industries as per the minutes of the meeting dated 29th August 1984. Therefore, we find that the decree passed by the learned Single Judge in favour of the Forgings in that respect cannot be sustained.24. Lastly, there is dispute aboutand machinery allegedly transferred from Kanjur Division to Rajkot Division. Mr.Dastur as well as the learned Single Judge found that there was no substance in this claim. The learned Judge also noted that this dispute was not seriously pressed on behalf of the Forgings. In the appeal also though this question has been raised, the learned counsel for the Forgings did not give much emphasis on this question. After going through the report of Mr.Dastur and the judgment of the learned Single Judge on this count, we find no reason to take a different view.25. In view of the evidence discussed above, we find that the Forgings had failed to prove its claim over the General Reserve No.II of Rs.3.25 crores. It also failed to prove its claim about theand machinery allegedly transferred from Kanjur Division to Rajkot Division. Taking into consideration the evidence, we find that the Industries have satisfactorily proved that even though the payment of Rs.23.47 lakhs was made by the Forgings towards the liability of erstwhile workmen, the Forgings have been in fact compensated by the Industries by deduction of Rs.8.68 lakhs net of tax from the differential and, therefore, Forgings are not entitled to receive anything more. Therefore, Appeal No.662 of 2001 filed by the Forgings is liable to be dismissed while the Appeal No.532 of 2001 filed by the Industries deserves to be allowed. | 0 | 7,384 | 3,251 | ### Instruction:
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not produced because according to them the minutes were with Bansi Mehta and admittedly, Bansi Mehta was not examined before Mr.Dastur and he was not called upon to produce the original. Taking into consideration the overall documentary and other evidence, Mr.Dastur opined that even though the minutes dated 6th August, 1984 were not signed and though originals were not produced before the Court still this fact could be believed and this explained as to how the amount of 23.47 lakhs was adjusted. Mr.Dastur also observed that even if the minutes dated 6th August, 1984 are not taken into consideration, still on the basis of other evidence, he would come to same conclusion.22. The learned Single Judge noted following Clause from the disputed minutes of the meeting dated 6th August 1984."5. OLD WORKERS LIABILITY: Regarding this liabilities amounting to Rs.23.43 lakhs it was agreed that it will be claimed as expenditure in the hands of Echjay Forgings and an amount of Rs.8.68 lakhs which is net of tax will be paid by Echjay Industries Private Limited to Echjay Forgings and was agreed to be adjusted from the differential payable by Motabhai Group to Maganbhai Group."However, the learned Single Judge held that evidence of Maganlal Doshi was not reliable, Bansi Mehta was not examined, original minutes of the meeting dated 6th August, 1984 were not placed on record and, therefore, these minutes could not be taken into consideration. With these observations, the learned Single Judge came to conclusion that the Industries had failed to prove that the amount of Rs.23.47 lakhs was adjusted against the differential.23. After careful scrutiny of the record, which is discussed at length in the report of Mr.Dastur as well as in the impugned judgment of the learned Single Judge, we find it difficult to uphold the view taken by the learned Single Judge. Admittedly, there was deduction of 13.07 lakhs from the differential of Rs.62.39 lakhs which was required to be paid by Mansukhlal Group to the remaining brothers. Maganlal Doshi explained what this deduction was but there is no acceptable or plausible explanation from Mansukhlal group about this deduction. Report of Mr.Dastur reveals that Mansukhlal group tried to contend that this differential was towards the depreciation of machinery. This could not be accepted for the reason that valuation of the fixed assets, machinery, etc. was already made by H.P.Kumbhani & Company, Chartered Accountants and after that valuation, differential of Rs.62.39 lakhs was found payable by Mansukhlal group. At the cost of repetition, it may be again pointed out that there was no mention or provision about the liability of payment of Rs.23.47 lakhs in the scheme sanctioned by the Court on 3-9-1986. Shortly after the scheme was sanctioned, Forgings sent a debit note of Rs.38,04,580.82 on Industries. However, admittedly in connection with the dispute pertaining to Echjay Electronics Private Limited in Appeal No.784 of 1987 in Notice of Motion No.713 of 1987 in Suit No.757 of 1987, the Forgings was required to pay amount of Rs.45,58,661/- lakhs as per the order dated 14th October, 1987. If any amount was still due for payment from Industries to Forgings, the Forgings would have certainly raised that question and they could not be directed to pay an amount of Rs.45,58,661/- lakhs to the Industries. In the same matter M/s. Bachubhai Munim & Company attorneys for Mansukhlal group also found the differential payable by Mansukhlal group to the remaining brothers. If this amount of Rs.23.47 lakhs had been already satisfied M/s. Bachubhai Munim & Company would have certainly taken note of that while finding out the differential to be paid by Mansukhlal group. However, Bachubhai Munim did not make any mention of Rs.23.47 lakhs while calculating the differential payable by Mansukhlal group. This aspect also goes against the Forgings. Taking into consideration these aspects, we find that payment of Rs.23.47 lakhs towards the liability of erstwhile workers was in fact adjusted by deduction of Rs.8.68 lakhs net of tax from the differentials and the remaining amount was settled as the Forgings got rebate in the income-tax for the payment of Rs.23.47 lakhs towards the workers liability. Taking into consideration overall view of the facts and circumstances, we find ourselves unable to agree with the learned Single Judge on this count. In our opinion, they already satisfied this claim of the Forgings in the differential payable to the Industries as per the minutes of the meeting dated 29th August 1984. Therefore, we find that the decree passed by the learned Single Judge in favour of the Forgings in that respect cannot be sustained.24. Lastly, there is dispute about die-blocks and machinery allegedly transferred from Kanjur Division to Rajkot Division. Mr.Dastur as well as the learned Single Judge found that there was no substance in this claim. The learned Judge also noted that this dispute was not seriously pressed on behalf of the Forgings. In the appeal also though this question has been raised, the learned counsel for the Forgings did not give much emphasis on this question. After going through the report of Mr.Dastur and the judgment of the learned Single Judge on this count, we find no reason to take a different view.25. In view of the evidence discussed above, we find that the Forgings had failed to prove its claim over the General Reserve No.II of Rs.3.25 crores. It also failed to prove its claim about the die-blocks and machinery allegedly transferred from Kanjur Division to Rajkot Division. Taking into consideration the evidence, we find that the Industries have satisfactorily proved that even though the payment of Rs.23.47 lakhs was made by the Forgings towards the liability of erstwhile workmen, the Forgings have been in fact compensated by the Industries by deduction of Rs.8.68 lakhs net of tax from the differential and, therefore, Forgings are not entitled to receive anything more. Therefore, Appeal No.662 of 2001 filed by the Forgings is liable to be dismissed while the Appeal No.532 of 2001 filed by the Industries deserves to be allowed.
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respect of those workmen of Kanjur Division, who had been terminated prior to the effective day and who had approached the Industrial Tribunal for legal redressal. It is material to note that even though the effective date was 31st December, 1982, the scheme was sanctioned by the Court onThe dispute with those workmen was already settled on 10th January, 1983 and the payment of their claims amounting to Rs.23.47 lakhs was already paid by August, 1983. Therefore, when the scheme was sanctioned, there was no reason to cover those employees. If those employees would have been covered under the scheme, the valuation of Kanjur Division would have certainly taken note of that liability but admittedly there is no reference of that liability in the valuation made by H.P.KumbhaniCo., Chartered Accountants in 1984. Taking into consideration the terms of the scheme, we have no doubt that the Forgings had not taken the responsibility of paying any compensation to the workmen, whose services were terminated in the year 1973 though they were the workers at Kanjur Division. Therefore, we find that it was responsibility of the Industries.20. The question whether the responsibility of the liability towards those workmen was taken over by the Industries or by the Forgings, in fact becomes immaterial because admittedly the payment of that liability was made from the account of the Forgings during the year 1983 and admittedly, no provision was made for that payment in the scheme nor it was provided for in the evaluation report of the Kanjur Division. Therefore, in either case after having made a payment of said Rs.23.47 lakhs, the Forgings would be entitled to be compensated for that amount by the Industries.After careful scrutiny of the record, which is discussed at length in the report of Mr.Dastur as well as in the impugned judgment of the learned Single Judge, we find it difficult to uphold the view taken by the learned Single Judge. Admittedly, there was deduction of 13.07 lakhs from the differential of Rs.62.39 lakhs which was required to be paid by Mansukhlal Group to the remaining brothers. Maganlal Doshi explained what this deduction was but there is no acceptable or plausible explanation from Mansukhlal group about this deduction. Report of Mr.Dastur reveals that Mansukhlal group tried to contend that this differential was towards the depreciation of machinery. This could not be accepted for the reason that valuation of the fixed assets, machinery, etc. was already made by H.P.KumbhaniCompany, Chartered Accountants and after that valuation, differential of Rs.62.39 lakhs was found payable by Mansukhlal group. At the cost of repetition, it may be again pointed out that there was no mention or provision about the liability of payment of Rs.23.47 lakhs in the scheme sanctioned by the Court onShortly after the scheme was sanctioned, Forgings sent a debit note of Rs.38,04,580.82 on Industries. However, admittedly in connection with the dispute pertaining to Echjay Electronics Private Limited in Appeal No.784 of 1987 in Notice of Motion No.713 of 1987 in Suit No.757 of 1987, the Forgings was required to pay amount of Rs.45,58,661/lakhs as per the order dated 14th October, 1987. If any amount was still due for payment from Industries to Forgings, the Forgings would have certainly raised that question and they could not be directed to pay an amount of Rs.45,58,661/lakhs to the Industries. In the same matter M/s. Bachubhai MunimCompany attorneys for Mansukhlal group also found the differential payable by Mansukhlal group to the remaining brothers. If this amount of Rs.23.47 lakhs had been already satisfied M/s. Bachubhai MunimCompany would have certainly taken note of that while finding out the differential to be paid by Mansukhlal group. However, Bachubhai Munim did not make any mention of Rs.23.47 lakhs while calculating the differential payable by Mansukhlal group. This aspect also goes against the Forgings. Taking into consideration these aspects, we find that payment of Rs.23.47 lakhs towards the liability of erstwhile workers was in fact adjusted by deduction of Rs.8.68 lakhs net of tax from the differentials and the remaining amount was settled as the Forgings got rebate in thefor the payment of Rs.23.47 lakhs towards the workers liability. Taking into consideration overall view of the facts and circumstances, we find ourselves unable to agree with the learned Single Judge on this count. In our opinion, they already satisfied this claim of the Forgings in the differential payable to the Industries as per the minutes of the meeting dated 29th August 1984. Therefore, we find that the decree passed by the learned Single Judge in favour of the Forgings in that respect cannot be sustained.24. Lastly, there is dispute aboutand machinery allegedly transferred from Kanjur Division to Rajkot Division. Mr.Dastur as well as the learned Single Judge found that there was no substance in this claim. The learned Judge also noted that this dispute was not seriously pressed on behalf of the Forgings. In the appeal also though this question has been raised, the learned counsel for the Forgings did not give much emphasis on this question. After going through the report of Mr.Dastur and the judgment of the learned Single Judge on this count, we find no reason to take a different view.25. In view of the evidence discussed above, we find that the Forgings had failed to prove its claim over the General Reserve No.II of Rs.3.25 crores. It also failed to prove its claim about theand machinery allegedly transferred from Kanjur Division to Rajkot Division. Taking into consideration the evidence, we find that the Industries have satisfactorily proved that even though the payment of Rs.23.47 lakhs was made by the Forgings towards the liability of erstwhile workmen, the Forgings have been in fact compensated by the Industries by deduction of Rs.8.68 lakhs net of tax from the differential and, therefore, Forgings are not entitled to receive anything more. Therefore, Appeal No.662 of 2001 filed by the Forgings is liable to be dismissed while the Appeal No.532 of 2001 filed by the Industries deserves to be allowed.
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Prem Kakar Vs. State Of Haryana And Anr | RAY, C.J.1. This appeal by special leave turns on the question whether the State can be asked by a writ of mandamus to make a reference under section 10(1) of the Industrial Disputes Act (hereinafter referred to as the Act).2. The appellant was employed by the respondent company Hindustan Dowidat Tools Ltd. The services of the appellant were terminated on 4th September, 1972. The appellant thereafter demanded reinstatement. The Conciliation officer started conciliation proceedings under section 12 of the Act. No settlement could be arrived at. The Conciliation officer sent a report to the State Government under section 12(4) of the Act. The State Government by letter dated 7 June, 1973 informed the appellant that the Government had considered the appellants case not fit for reference to the Labour Court for adjudication.3. The Government in the letter stated as follows:"The Government have not found your case fit for adjudication to a Labour Court because you were working as an Electrical Foreman in this concern, which was a supervisory job and your wages were more than Rs. 500/- per month. Therefore, your case is not covered by the definition of the terms "Workman" given in the Industrial Disputes Act."The appellant under Article 226 of the Constitution applied for a writ of mandamus directing the State to make a reference. The High Court dismissed the application.4. The appellant contended that the question whether the appellant was a workman was a disputed question of fact and law which could be decided only by an appropriate Labour Court. The appellant also submitted that if the dispute in question raises questions of law the appropriate Government should not give a final decision on the question. In short, the appellants contention is that the issue whether the appellant is a workman or not could only be decided by the Labour Court and, therefore, reference should have been made.Under Section 10 of the Act where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time refer the dispute, inter alia, to a National Tribunal for adjudication .5. Section 12 of the Act deals with duties of Conciliation officers. If the Conciliation officer cannot arrive at a settlement of the dispute he sends a report to the appropriate Government. Under section 12(S) of the Act if, on a consideration of the report referred to in sub-section (4), the appropriate Government is satisfied that there is a case for reference, it may make such reference. Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefore.6. This Court in State of Madras v. C.P. Sarathy and State of Bombay v. K.P. Krishnan &ors. held that the order of the Government acting under section 10(1) read with section 12(5) of t he Act is an administrative order and not a judicial or a quasi-judicial one.7. In Bombay Union of Journalists &ors. v. The State of Bombay and Anr. this Court said that in entertaining an application for a writ of mandamus against an order made by the appropriate Government under section 10(1) read with section 12(5) of the Act the Court does not sit in appeal over the order and is not entitled to consider the propriety or the satisfactory character of the reasons given by the Government. If it appears that the reasons given show that the appropriate Government took into account any consideration irrelevant or foreign, then the Court may in a given case consider the case on a writ of mandamus.8. In K.P. Krishnan s case (supra) the issues in dispute related to a claim of classification for specified employees and additional bonus and the sole ground on which the Government refused to refer the dispute for adjudication under section 12(5) of the Act was that the employees had adopted go-slow tactics during the relevant year. The facts were that the company had nevertheless voluntarily paid three months bonus for that year and the report of the Conciliation officer was in favour of the employees. This Court held that the Government acted on irrelevant considerations and issued a writ of mandamus.In the present case, the fact is that the Government found that the appellant was not a workman within the definition of workman in the Act, and, therefore, it was not a fit case for reference for adjudication.9. The High Court rightly rejected the application. | 0[ds]In K.P. Krishnan s case (supra) the issues in dispute related to a claim of classification for specified employees and additional bonus and the sole ground on which the Government refused to refer the dispute for adjudication under section 12(5) of the Act was that the employees had adopted go-slow tactics during the relevant year. The facts were that the company had nevertheless voluntarily paid three months bonus for that year and the report of the Conciliation officer was in favour of the employees. This Court held that the Government acted on irrelevant considerations and issued a writ of mandamus.In the present case, the fact is that the Government found that the appellant was not a workman within the definition of workman in the Act, and, therefore, it was not a fit case for reference forHigh Court rightly rejected the application. | 0 | 832 | 158 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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RAY, C.J.1. This appeal by special leave turns on the question whether the State can be asked by a writ of mandamus to make a reference under section 10(1) of the Industrial Disputes Act (hereinafter referred to as the Act).2. The appellant was employed by the respondent company Hindustan Dowidat Tools Ltd. The services of the appellant were terminated on 4th September, 1972. The appellant thereafter demanded reinstatement. The Conciliation officer started conciliation proceedings under section 12 of the Act. No settlement could be arrived at. The Conciliation officer sent a report to the State Government under section 12(4) of the Act. The State Government by letter dated 7 June, 1973 informed the appellant that the Government had considered the appellants case not fit for reference to the Labour Court for adjudication.3. The Government in the letter stated as follows:"The Government have not found your case fit for adjudication to a Labour Court because you were working as an Electrical Foreman in this concern, which was a supervisory job and your wages were more than Rs. 500/- per month. Therefore, your case is not covered by the definition of the terms "Workman" given in the Industrial Disputes Act."The appellant under Article 226 of the Constitution applied for a writ of mandamus directing the State to make a reference. The High Court dismissed the application.4. The appellant contended that the question whether the appellant was a workman was a disputed question of fact and law which could be decided only by an appropriate Labour Court. The appellant also submitted that if the dispute in question raises questions of law the appropriate Government should not give a final decision on the question. In short, the appellants contention is that the issue whether the appellant is a workman or not could only be decided by the Labour Court and, therefore, reference should have been made.Under Section 10 of the Act where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time refer the dispute, inter alia, to a National Tribunal for adjudication .5. Section 12 of the Act deals with duties of Conciliation officers. If the Conciliation officer cannot arrive at a settlement of the dispute he sends a report to the appropriate Government. Under section 12(S) of the Act if, on a consideration of the report referred to in sub-section (4), the appropriate Government is satisfied that there is a case for reference, it may make such reference. Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefore.6. This Court in State of Madras v. C.P. Sarathy and State of Bombay v. K.P. Krishnan &ors. held that the order of the Government acting under section 10(1) read with section 12(5) of t he Act is an administrative order and not a judicial or a quasi-judicial one.7. In Bombay Union of Journalists &ors. v. The State of Bombay and Anr. this Court said that in entertaining an application for a writ of mandamus against an order made by the appropriate Government under section 10(1) read with section 12(5) of the Act the Court does not sit in appeal over the order and is not entitled to consider the propriety or the satisfactory character of the reasons given by the Government. If it appears that the reasons given show that the appropriate Government took into account any consideration irrelevant or foreign, then the Court may in a given case consider the case on a writ of mandamus.8. In K.P. Krishnan s case (supra) the issues in dispute related to a claim of classification for specified employees and additional bonus and the sole ground on which the Government refused to refer the dispute for adjudication under section 12(5) of the Act was that the employees had adopted go-slow tactics during the relevant year. The facts were that the company had nevertheless voluntarily paid three months bonus for that year and the report of the Conciliation officer was in favour of the employees. This Court held that the Government acted on irrelevant considerations and issued a writ of mandamus.In the present case, the fact is that the Government found that the appellant was not a workman within the definition of workman in the Act, and, therefore, it was not a fit case for reference for adjudication.9. The High Court rightly rejected the application.
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### Explanation:
In K.P. Krishnan s case (supra) the issues in dispute related to a claim of classification for specified employees and additional bonus and the sole ground on which the Government refused to refer the dispute for adjudication under section 12(5) of the Act was that the employees had adopted go-slow tactics during the relevant year. The facts were that the company had nevertheless voluntarily paid three months bonus for that year and the report of the Conciliation officer was in favour of the employees. This Court held that the Government acted on irrelevant considerations and issued a writ of mandamus.In the present case, the fact is that the Government found that the appellant was not a workman within the definition of workman in the Act, and, therefore, it was not a fit case for reference forHigh Court rightly rejected the application.
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Ninaji Raoji Boudha & Anr Vs. State Of Maharashtra | fissured fractures were "due to blow by some hard and blunt substance, or by a fall from height with head downwards on a hard substance." It is therefore quite clear t hat there was only one blow on the head which caused Bhonajis death, and the High Court misread the evidence in taking the view that more than one blow was given on the head of the deceased.9. This has made it necessary for us to examine the further question whether the High Court was justified in holding that both the appellants were guilty of the offence under s. 302 read with s. 34 I.P.C. Here again, we find that the evidence on the record has not been read correctly. Smt. Kalawati (P.W. 2), Smt. Deoki Bai (P.W. 3), SA Ram (P.W. S) and Sukhdev (P.W. 7) have been examined as eye witness of the beating which was given to Bhonaji. The High Court has held that their evidence was "acceptable", and that there was "nothing to cast any doubt" on their evidence. Smt. Kalawati (P.W. 2) stated in the trial court that appellant Ninaji gave two blows to Bhonaji with a stick, but did not state on what parts of the body those blows were inflicted. She stated further that appellant Raoji gave a blow with a stick on Bhonajis back, near the neck: She however admitted during her cross-examination that she could not, explain why she did not mention in her statement to the police that Ninaji and Raoji gave blows on any particular part of Bhonajis body. Her statement could not therefore go to prove that appellants Ninaji and Raoji inflicted injuries on the head of the deceased. We have examined the statement of Smt. Deoki Bai (P.W. 3) also. She is the daughter-in- law o f the deceased, being the-wife of Rambhau. She stated that she had heard the noise, but came out only after feeding her child and saw that Bhonaji` hat fallen down on his face and the appellants were running away. While her statement may go to prove the presence of the appellants at the place of incident, it does not prove that both of them dealt blows on the head of the deceased. Sri Ram (P.W. 5) stated that appellant Ninaji gave two blows with a stick on the head of Bhonaji, and that appellant Raoji gave a blow with a khunt near his neck. In his cross-examination he admitted that he did not state before the police about the place where the appellants dealt blows with their sticks on the person of Bhonaji. His statement could not al so therefore prove the infliction of blows by both the appellants on the head of the deceased. That leaves the statement of Sukhdev (P.W. 7) for consideration. He merely stated that while he could not state the exact number of the accused or their features, he saw that, out of seven or eight persons, three beat Bhonaji with sticks. He did not state about the infliction of any injury on the head, by any of the appellants. It would thus appear that the High Court could not possibly have reached the conclusion, on the basis of the statements of Smt. Kalawati (P.W. 2), Smt. Deoki Bai (P.W. 3), Sri Ram (P.W. S) and Sukhdev (P.W. 7) that more than one blow was inflicted on the head of the deceased, or that the one blow which was found there as a result of the post-mortem examination was inflicted by the one or the other of the two appellants.The evidence on record therefore went to show that the, appellants did not have the common intention of giving a beating to Bhonaji when they reached his house for, as has been shown, they found him sitting outside the house on his oota but passed him by in search of Samadhan who was dressing his injuries inside the house. Bhonaji asked Tulsi Ram Chowkidar to make a report and to get ready a bullock cart for going to the police station. It was then that injuries were inflicted an his person by the appellants Ninaji and Raoji. Out of those injuries, one was a forceful blow on the head which caused a depressed fracture and fissures all over, and resulted in the ultimate death of Bhonai; The other injuries were on the neck (back side), knees and the right elbow of the deceased and were simple injuries. As has been shown. there was no reliable evidence on the record to prove whether the fatal blow on the head was caused by Ninaji or Raoji. The other blows did not fall on any vital part of the body and, in the absence of evidence to establish that their common intention was to cause death it appears that the appellants had the common intention of causing grievous injury with the lathi and the khunt. They could therefore be convicted of an offence under s. 325 read with s. 34 I.P.C. and not s. 302 read with s. 34 I.P.C.10. It may also be mentioned that while the High Court stated at one place that the appellants must be taken to have the knowledge that the injury which they intended to cause to Bhonaji was "likely to result" in his death, it observed at another pl ace that the appellants were guilty of an offence falling under section 300, fourthly, because they "ought to have known that their act was so imminently dangerous having regard to the age and condition of the victim Bhonaji that their act must in all probability cause death or such bodily injury as is likely to cause death." No categorical finding has therefore been given by the High Court one way or the other. On the other hand, as has been shown, the liability of the accused has not been examined with due regard to the facts and circumstances which had been clearly established on the record and to which reference has been made above. | 1[ds]We have been taken through the evidence on the record, and we find that there is no justification for the argument that the fatal injury was caused to Bhonaji at gothan, and not in front of his house. We have gone through the appellate judgment of the High Court, and we are satisfied that while Bhonajis house was quite near the gothan, there can be no doubt that the accused went to his house, after the beating which had taken place at gothan. As we shall show in a while, there is also satisfactory evidence to prove that Bhonaji was sitting in front of his house when he was beaten thehave been taken through the evidence on the record, and we find that there is no justification for the argument that the fatal injury was caused to Bhonaji at gothan, and not in front of his house. We have gone through the appellate judgment of the High Court, and we are satisfied that while Bhonajis house was quite near the gothan, there can be no doubt that the accused went to his house, after the beating which had taken place at gothan. As we shall show in a while, there is also satisfactory evidence to prove that Bhonaji was sitting in front of his house when he was beaten thewe shall show, there is justification for the argument that in arriving at this decision the High Court misread the evidence in vital particulars and committed an apparent error of law asagain, we find that the evidence on the record has not been read correctly. Smt. Kalawati (P.W. 2), Smt. Deoki Bai (P.W. 3), SA Ram (P.W. S) and Sukhdev (P.W. 7) have been examined as eye witness of the beating which was given to Bhonaji. The High Court has held that their evidence was "acceptable", and that there was "nothing to cast any doubt" on their evidence. Smt. Kalawati (P.W. 2) stated in the trial court that appellant Ninaji gave two blows to Bhonaji with a stick, but did not state on what parts of the body those blows were inflicted. She stated further that appellant Raoji gave a blow with a stick on Bhonajis back, near the neck: She however admitted during her cross-examination that she could not, explain why she did not mention in her statement to the police that Ninaji and Raoji gave blows on any particular part of Bhonajis body. Her statement could not therefore go to prove that appellants Ninaji and Raoji inflicted injuries on the head of the deceased. We have examined the statement of Smt. Deoki Bai (P.W. 3) also. She is the daughter-in- law o f the deceased, being the-wife of Rambhau. She stated that she had heard the noise, but came out only after feeding her child and saw that Bhonaji` hat fallen down on his face and the appellants were running away. While her statement may go to prove the presence of the appellants at the place of incident, it does not prove that both of them dealt blows on the head of the deceased. Sri Ram (P.W. 5) stated that appellant Ninaji gave two blows with a stick on the head of Bhonaji, and that appellant Raoji gave a blow with a khunt near his neck. In his cross-examination he admitted that he did not state before the police about the place where the appellants dealt blows with their sticks on the person of Bhonaji. His statement could not al so therefore prove the infliction of blows by both the appellants on the head of the deceased. That leaves the statement of Sukhdev (P.W. 7) for consideration. He merely stated that while he could not state the exact number of the accused or their features, he saw that, out of seven or eight persons, three beat Bhonaji with sticks. He did not state about the infliction of any injury on the head, by any of the appellants. It would thus appear that the High Court could not possibly have reached the conclusion, on the basis of the statements of Smt. Kalawati (P.W. 2), Smt. Deoki Bai (P.W. 3), Sri Ram (P.W. S) and Sukhdev (P.W. 7) that more than one blow was inflicted on the head of the deceased, or that the one blow which was found there as a result of the post-mortem examination was inflicted by the one or the other of the two appellants.The evidence on record therefore went to show that the, appellants did not have the common intention of giving a beating to Bhonaji when they reached his house for, as has been shown, they found him sitting outside the house on his oota but passed him by in search of Samadhan who was dressing his injuries inside the house. Bhonaji asked Tulsi Ram Chowkidar to make a report and to get ready a bullock cart for going to the police station. It was then that injuries were inflicted an his person by the appellants Ninaji and Raoji. Out of those injuries, one was a forceful blow on the head which caused a depressed fracture and fissures all over, and resulted in the ultimate death of Bhonai; The other injuries were on the neck (back side), knees and the right elbow of the deceased and were simple injuries. As has been shown. there was no reliable evidence on the record to prove whether the fatal blow on the head was caused by Ninaji or Raoji. The other blows did not fall on any vital part of the body and, in the absence of evidence to establish that their common intention was to cause death it appears that the appellants had the common intention of causing grievous injury with the lathi and the khunt. They could therefore be convicted of an offence under s. 325 read with s. 34 I.P.C. and not s. 302 read with s. 34may also be mentioned that while the High Court stated at one place that the appellants must be taken to have the knowledge that the injury which they intended to cause to Bhonaji was "likely to result" in his death, it observed at another pl ace that the appellants were guilty of an offence falling under section 300, fourthly, because they "ought to have known that their act was so imminently dangerous having regard to the age and condition of the victim Bhonaji that their act must in all probability cause death or such bodily injury as is likely to cause death." No categorical finding has therefore been given by the High Court one way or the other. On the other hand, as has been shown, the liability of the accused has not been examined with due regard to the facts and circumstances which had been clearly established on the record and to which reference has been made | 1 | 3,438 | 1,273 | ### 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:
fissured fractures were "due to blow by some hard and blunt substance, or by a fall from height with head downwards on a hard substance." It is therefore quite clear t hat there was only one blow on the head which caused Bhonajis death, and the High Court misread the evidence in taking the view that more than one blow was given on the head of the deceased.9. This has made it necessary for us to examine the further question whether the High Court was justified in holding that both the appellants were guilty of the offence under s. 302 read with s. 34 I.P.C. Here again, we find that the evidence on the record has not been read correctly. Smt. Kalawati (P.W. 2), Smt. Deoki Bai (P.W. 3), SA Ram (P.W. S) and Sukhdev (P.W. 7) have been examined as eye witness of the beating which was given to Bhonaji. The High Court has held that their evidence was "acceptable", and that there was "nothing to cast any doubt" on their evidence. Smt. Kalawati (P.W. 2) stated in the trial court that appellant Ninaji gave two blows to Bhonaji with a stick, but did not state on what parts of the body those blows were inflicted. She stated further that appellant Raoji gave a blow with a stick on Bhonajis back, near the neck: She however admitted during her cross-examination that she could not, explain why she did not mention in her statement to the police that Ninaji and Raoji gave blows on any particular part of Bhonajis body. Her statement could not therefore go to prove that appellants Ninaji and Raoji inflicted injuries on the head of the deceased. We have examined the statement of Smt. Deoki Bai (P.W. 3) also. She is the daughter-in- law o f the deceased, being the-wife of Rambhau. She stated that she had heard the noise, but came out only after feeding her child and saw that Bhonaji` hat fallen down on his face and the appellants were running away. While her statement may go to prove the presence of the appellants at the place of incident, it does not prove that both of them dealt blows on the head of the deceased. Sri Ram (P.W. 5) stated that appellant Ninaji gave two blows with a stick on the head of Bhonaji, and that appellant Raoji gave a blow with a khunt near his neck. In his cross-examination he admitted that he did not state before the police about the place where the appellants dealt blows with their sticks on the person of Bhonaji. His statement could not al so therefore prove the infliction of blows by both the appellants on the head of the deceased. That leaves the statement of Sukhdev (P.W. 7) for consideration. He merely stated that while he could not state the exact number of the accused or their features, he saw that, out of seven or eight persons, three beat Bhonaji with sticks. He did not state about the infliction of any injury on the head, by any of the appellants. It would thus appear that the High Court could not possibly have reached the conclusion, on the basis of the statements of Smt. Kalawati (P.W. 2), Smt. Deoki Bai (P.W. 3), Sri Ram (P.W. S) and Sukhdev (P.W. 7) that more than one blow was inflicted on the head of the deceased, or that the one blow which was found there as a result of the post-mortem examination was inflicted by the one or the other of the two appellants.The evidence on record therefore went to show that the, appellants did not have the common intention of giving a beating to Bhonaji when they reached his house for, as has been shown, they found him sitting outside the house on his oota but passed him by in search of Samadhan who was dressing his injuries inside the house. Bhonaji asked Tulsi Ram Chowkidar to make a report and to get ready a bullock cart for going to the police station. It was then that injuries were inflicted an his person by the appellants Ninaji and Raoji. Out of those injuries, one was a forceful blow on the head which caused a depressed fracture and fissures all over, and resulted in the ultimate death of Bhonai; The other injuries were on the neck (back side), knees and the right elbow of the deceased and were simple injuries. As has been shown. there was no reliable evidence on the record to prove whether the fatal blow on the head was caused by Ninaji or Raoji. The other blows did not fall on any vital part of the body and, in the absence of evidence to establish that their common intention was to cause death it appears that the appellants had the common intention of causing grievous injury with the lathi and the khunt. They could therefore be convicted of an offence under s. 325 read with s. 34 I.P.C. and not s. 302 read with s. 34 I.P.C.10. It may also be mentioned that while the High Court stated at one place that the appellants must be taken to have the knowledge that the injury which they intended to cause to Bhonaji was "likely to result" in his death, it observed at another pl ace that the appellants were guilty of an offence falling under section 300, fourthly, because they "ought to have known that their act was so imminently dangerous having regard to the age and condition of the victim Bhonaji that their act must in all probability cause death or such bodily injury as is likely to cause death." No categorical finding has therefore been given by the High Court one way or the other. On the other hand, as has been shown, the liability of the accused has not been examined with due regard to the facts and circumstances which had been clearly established on the record and to which reference has been made above.
### Response:
1
### Explanation:
not in front of his house. We have gone through the appellate judgment of the High Court, and we are satisfied that while Bhonajis house was quite near the gothan, there can be no doubt that the accused went to his house, after the beating which had taken place at gothan. As we shall show in a while, there is also satisfactory evidence to prove that Bhonaji was sitting in front of his house when he was beaten thewe shall show, there is justification for the argument that in arriving at this decision the High Court misread the evidence in vital particulars and committed an apparent error of law asagain, we find that the evidence on the record has not been read correctly. Smt. Kalawati (P.W. 2), Smt. Deoki Bai (P.W. 3), SA Ram (P.W. S) and Sukhdev (P.W. 7) have been examined as eye witness of the beating which was given to Bhonaji. The High Court has held that their evidence was "acceptable", and that there was "nothing to cast any doubt" on their evidence. Smt. Kalawati (P.W. 2) stated in the trial court that appellant Ninaji gave two blows to Bhonaji with a stick, but did not state on what parts of the body those blows were inflicted. She stated further that appellant Raoji gave a blow with a stick on Bhonajis back, near the neck: She however admitted during her cross-examination that she could not, explain why she did not mention in her statement to the police that Ninaji and Raoji gave blows on any particular part of Bhonajis body. Her statement could not therefore go to prove that appellants Ninaji and Raoji inflicted injuries on the head of the deceased. We have examined the statement of Smt. Deoki Bai (P.W. 3) also. She is the daughter-in- law o f the deceased, being the-wife of Rambhau. She stated that she had heard the noise, but came out only after feeding her child and saw that Bhonaji` hat fallen down on his face and the appellants were running away. While her statement may go to prove the presence of the appellants at the place of incident, it does not prove that both of them dealt blows on the head of the deceased. Sri Ram (P.W. 5) stated that appellant Ninaji gave two blows with a stick on the head of Bhonaji, and that appellant Raoji gave a blow with a khunt near his neck. In his cross-examination he admitted that he did not state before the police about the place where the appellants dealt blows with their sticks on the person of Bhonaji. His statement could not al so therefore prove the infliction of blows by both the appellants on the head of the deceased. That leaves the statement of Sukhdev (P.W. 7) for consideration. He merely stated that while he could not state the exact number of the accused or their features, he saw that, out of seven or eight persons, three beat Bhonaji with sticks. He did not state about the infliction of any injury on the head, by any of the appellants. It would thus appear that the High Court could not possibly have reached the conclusion, on the basis of the statements of Smt. Kalawati (P.W. 2), Smt. Deoki Bai (P.W. 3), Sri Ram (P.W. S) and Sukhdev (P.W. 7) that more than one blow was inflicted on the head of the deceased, or that the one blow which was found there as a result of the post-mortem examination was inflicted by the one or the other of the two appellants.The evidence on record therefore went to show that the, appellants did not have the common intention of giving a beating to Bhonaji when they reached his house for, as has been shown, they found him sitting outside the house on his oota but passed him by in search of Samadhan who was dressing his injuries inside the house. Bhonaji asked Tulsi Ram Chowkidar to make a report and to get ready a bullock cart for going to the police station. It was then that injuries were inflicted an his person by the appellants Ninaji and Raoji. Out of those injuries, one was a forceful blow on the head which caused a depressed fracture and fissures all over, and resulted in the ultimate death of Bhonai; The other injuries were on the neck (back side), knees and the right elbow of the deceased and were simple injuries. As has been shown. there was no reliable evidence on the record to prove whether the fatal blow on the head was caused by Ninaji or Raoji. The other blows did not fall on any vital part of the body and, in the absence of evidence to establish that their common intention was to cause death it appears that the appellants had the common intention of causing grievous injury with the lathi and the khunt. They could therefore be convicted of an offence under s. 325 read with s. 34 I.P.C. and not s. 302 read with s. 34may also be mentioned that while the High Court stated at one place that the appellants must be taken to have the knowledge that the injury which they intended to cause to Bhonaji was "likely to result" in his death, it observed at another pl ace that the appellants were guilty of an offence falling under section 300, fourthly, because they "ought to have known that their act was so imminently dangerous having regard to the age and condition of the victim Bhonaji that their act must in all probability cause death or such bodily injury as is likely to cause death." No categorical finding has therefore been given by the High Court one way or the other. On the other hand, as has been shown, the liability of the accused has not been examined with due regard to the facts and circumstances which had been clearly established on the record and to which reference has been made
|
UNITED BANK OF INDIA AN ORS Vs. UNITED BANK OF INDIA RETIREES WELFARE ASSOCIATION AND ORS | be computed on 0.24% for the entirety of basic pension and not just for the first slab upto Rs. 3550/-. But such calculation completely disregards that rate which is a flat rate applicable in case of post 01.11.2002 retirees is not 0.24% for the entire amount of basic pension but at a different level of 0.18% and the threshold requirement of quarterly average of the Index is also different. If we were to simply borrow the same rate of 0.18% in the case of retirees prior to 01.11.2002, the concerned retirees may well be at a disadvantage. For instance, the basic pension of Rs. 7880/- of said Santipriya Roy would yield a figure of Rs. 14184/- with flat rate of 0.18%. It will not therefore be correct to adopt and apply the same rate as is made applicable in case of post 01.11.2002 retirees. What is prayed for is also not the same rate but the same principle, namely, flat rate be made applicable to pre 01.11.2002 retirees as well but at a rate of 0.24%. 24. Would that be the correct approach? The tapering formula undoubtedly begins with 0.24% for the first segment of Rs. 3550/- of basic pension and then progressively steps down and finally reaches the level of 0.06% where the basic pension is in excess of Rs. 6010/-. What is devised by way of such tapering formula is higher rate at the lower levels of segments so that larger number of peoples would get maximum advantage and the rate thereafter keeps stepping down. Neither can we apply the rate of 0.18% which will then cause great harm and damage to the retirees nor can we adopt a flat rate of 0.24% for the entire amount of basic pension. The benefit which is sought to be conferred by the tapering formula lies in the averaging which comes to near about the same quantum as is given to the post 01.11.2002 retirees. At this stage it is noteworthy that no illustration has been placed on record to submit that even with 0.18% dearness allowance those who retired after November 2002 walk away with substantially greater advantage as against pre November 2002 retirees. In any case, this is not a matter where a Section of employees merely on account of date of retirement are being differentiated. If we adopt a flat rate of 0.24% as is being prayed for, the class of retirees who retired before 01.11.2002 will stand conferred better rate than those employees who retired after 01.11.2002. Nor can we apply a flat rate of 0.18% for them. Each class is governed by distinct and different parameters. These are all matters of policy making. The conferral of advantages of benefits on two different classes of retirees has a completely distinct formula and rates and it would not be possible to have a synthesis on any count or to put both the sets of retirees on any common parameters. Both classes are distinct and do not form a homogenous group. It would be extremely difficult and hazardous to adopt a flat rate as is sought to be projected. It is not a case of creating a class within a class. 25. In our view any attempt to tinker with either the formula or the rate would make the whole scheme unworkable as was cautioned by this Court in the case of P.N. Menon and Ors. (supra). As held in the case of Indian Ex-Services League and Ors. (supra) the decision of this Court in D.S. Nakara (supra) is one of limited application and there is no scope for enlarging the ambit of that decision to cover all schemes made by the retirees or a demand for an identical amount of pension irrespective of the date of retirement. The reliance on the resolutions/circulars issued by Reserve Bank of India was also misplaced. It is true that the tapering formula was done away with by Reserve Bank of India but that by itself cannot entitle the retirees prior to 01.11.2002 either to be conferred the advantage at the same rate made applicable by Reserve Bank of India or at the flat rate of 0.24% as was sought to be projected. In our considered view, the assessment made by the Division Bench of the Madras High Court was absolutely correct. The settlement has to be taken as a package deal and it would be impossible to hold certain parts good and acceptable while finding other parts to be bad. Moreover, the recitals D, E and F in the Bipartite settlement dated 02.06.2005 (quoted hereinabove) show that a package deal was entered into and Rs. 1288 crores per annum towards all the benefits was set apart for the benefit of the employees. Any stepping up of benefit for a Section of employees is bound to inflate the figure of Rs. 1288 crores per annum though that by itself is not a ground that weighs with us. In our view both the categories of retirees, namely, pre November 2002 and post November, 2002 stand on different footing, the parameters which govern the computation of dearness relief are also on a different level. The decisions rendered by the Single Judge as well as by the Division Bench of the High Court failed to appreciate these aspects and in our view, the said decisions are completely erroneous. 26. It may also be noted that the decision of the Division Bench of the Madras High Court having been confirmed by this Court, the matter stands concluded. As has been observed in paragraphs 32, 41 and 44 of Kunhayammed and Ors. v. State of Kerala and Anr. (2000) 6 SCC 359 , once leave to appeal had been granted and the appellate jurisdiction of this Court was invoked the order passed in appeal would attract the doctrine of merger. Be that as it may, we are satisfied that the Bipartite Settlement did not create any distinction which was inconsistent with the principles laid down by this Court. | 1[ds]A] In D.S. Nakara and Ors. (supra) the principal question which arose was, is the date of retirement a relevant consideration for eligibility when a revised formula for computation of pension is ushered in and made effective from a specified date.1 The inquiry was limited to non-contributory superannuation or retirement pension paid by government to its erstwhile employee and for the purpose and object underlying it.2 In that case formula for computation of pension was liberalized vide office memorandum dated 25.05.1979 but the benefit was restricted to those government servants who were in service on 31.03.1979 and retired on or after that date. The challenge was to arbitrary division of a homogenous class by fixing the eligibility criteria unrelated to the purpose of revision. In that context the observations of this Court in Para 42 are relevant. Said Para 42 was as under:42. If it appears to be undisputable, as it does to us that the pensioners for the purpose of pension benefits form a class, would its upward revision permit a homogeneous class to be divided by arbitrarily fixing an eligibility criteria unrelated to purpose of revision, and would such classification be founded on some rational principle? The classification has to be based, as is well settled, on some rational principle and the rational principle must have nexus to the objects sought to be achieved. We have set out the objects underlying the payment of pension. If the State considered it necessary to liberalise the pension scheme, we find no rational principle behind it for granting these benefits only to those who retired subsequent to that date simultaneously denying the same to those who retired prior to that date. If the liberalisation was considered necessary for augmenting social security in old age to government servants then those who, retired earlier cannot be worse off than those who retire later. Therefore, this division which classified pensioners into two classes is not based on any rational principle and if the rational principle is the one of dividing pensioners with a view to giving something more to persons otherwise equally placed, it would be discriminatory. To illustrate, take two persons, one retired just a day prior and Anr. a day just succeeding the specified date. Both were in the same pay bracket, the average emolument was the same and both had put in equal number of years of service. How does a fortuitous circumstance of retiring a day earlier or a day later will permit totally unequal treatment in the matter of pension? One retiring a day earlier will have to be subject to ceiling of Rs. 8100 p.a. and average emolument to be worked out on 36 months salary while the other will have a ceiling of Rs. 12,000 p.a. and average emolument will be computed on the basis of last 10 months average. The artificial division stares into face and is unrelated to any principle and whatever principle, if there be any, has absolutely no nexus to the objects sought to be achieved by liberalising the pension scheme. In fact this arbitrary division has not only no nexus to the liberalised pension scheme but it is counter-productive and runs counter to the whole gamut of pension scheme. The equal treatment guaranteed in Article 14 is wholly violated inasmuch as the pension Rules being statutory in character, since the specified date, the Rules accord differential and discriminatory treatment to equals in the matter of commutation of pension. A 48 hours difference in matter of retirement would have a traumatic effect. Division is thus both arbitrary and unprincipled. Therefore, the classification does not stand the test of Article 14.21. At the outset it must be stated that Appendix II to the Pension Regulations had categorized employees in three different segments and the dearness relief payable on basic pension in respect of employees in these three categories was on the basis of tapering formula which differed in each of the categories. In respect of those who were in the first category i.e. those who had retired earliest, the dearness relief was 0.67% on the first slab namely upto Rs. 1250/- of basic pension. The rate then tapered and finally was 0.17% of basic pension in excess of Rs. 2130/-. At the same time in respect of retirees in the second category, the rate of dearness relief was 0.35 per cent in respect of first slab namely upto Rs. 2400/-. Here also the dearness relief was on a tapering formula and finally was 0.09% of basic pension in excess of Rs. 4100/-. The third category which was in respect of employees who retired after 01.04.1998, the rate was 0.25% for the first slab upto Rs. 3380/-. Going by the tapering formula, the rate was 0.06 per cent of the basic pension in excess of Rs. 5770/-. If Clause 7(2) of the 9th Bipartite Settlement dated 27.04.2010 is compared with the last category of the Appendix II of the Pension Regulations, there is hardly any change in respect of retirees during the period 01.04.1998 to 31.10.2002. Thus, whatever benefit was conferred and was enjoyable by the employees who retired before November 2002 was not taken away.22. If both categories dealt with by 9th Bipartite Settlement dated 27.04.2010 are further compared, the retirees prior to 01.11.2002 would be entitled to dearness relief on a tapering formula where the initial slab upto Rs. 3550/- is to be governed by quotient of 0.24%. The tapering formula then ends with 0.06% of basic pension in excess of Rs. 6010/-. The starting point is at a level of 0.24% while the end point tapers to 0.06%. The maximum advantage is sought to be given to those who are getting basic pension at lower levels of slab who would get the dearness relief at 0.24%. As against this, the retirees after 01.11.2002 are to be given dearness relief at a flat rate of 0.18% of the basic pension. Theoretically, the starting level for the retirees prior to 01.11.2002 is at a higher level of 0.24% as against the retirees after 01.11.2002. It could possibly be said that for those who are with basic pension in the region of Rs. 6000/-, on the basis of a tapering formula may well, in the ultimate analysis, average to the same level of 0.18%.23. The parity that was sought in the petition was not so much regarding applicability of same rate of 0.18% but was in respect of flat rate idea. The illustrations given in para 30 of the writ petition that we have quoted hereinabove bring home the point. The calculation of dearness allowance of Rs. 14274/- on basic pension of Rs. 7880/- in the case of Santipriya Roy is in keeping with tapering formula as given in the Bipartite Settlement dated 27.04.2010. The tabular chart then proceeds to calculate full compensation on account of dearness allowance with slab rate of 0.24% on the entire basic pension of Rs. 7880/- which figure comes to Rs. 18912/-. Thus the submission was that the dearness relief be computed on 0.24% for the entirety of basic pension and not just for the first slab upto Rs. 3550/-. But such calculation completely disregards that rate which is a flat rate applicable in case of post 01.11.2002 retirees is not 0.24% for the entire amount of basic pension but at a different level of 0.18% and the threshold requirement of quarterly average of the Index is also different. If we were to simply borrow the same rate of 0.18% in the case of retirees prior to 01.11.2002, the concerned retirees may well be at a disadvantage. For instance, the basic pension of Rs. 7880/- of said Santipriya Roy would yield a figure of Rs. 14184/- with flat rate of 0.18%. It will not therefore be correct to adopt and apply the same rate as is made applicable in case of post 01.11.2002 retirees. What is prayed for is also not the same rate but the same principle, namely, flat rate be made applicable to pre 01.11.2002 retirees as well but at a rate of 0.24%.The tapering formula undoubtedly begins with 0.24% for the first segment of Rs. 3550/- of basic pension and then progressively steps down and finally reaches the level of 0.06% where the basic pension is in excess of Rs. 6010/-. What is devised by way of such tapering formula is higher rate at the lower levels of segments so that larger number of peoples would get maximum advantage and the rate thereafter keeps stepping down. Neither can we apply the rate of 0.18% which will then cause great harm and damage to the retirees nor can we adopt a flat rate of 0.24% for the entire amount of basic pension. The benefit which is sought to be conferred by the tapering formula lies in the averaging which comes to near about the same quantum as is given to the post 01.11.2002 retirees. At this stage it is noteworthy that no illustration has been placed on record to submit that even with 0.18% dearness allowance those who retired after November 2002 walk away with substantially greater advantage as against pre November 2002 retirees. In any case, this is not a matter where a Section of employees merely on account of date of retirement are being differentiated. If we adopt a flat rate of 0.24% as is being prayed for, the class of retirees who retired before 01.11.2002 will stand conferred better rate than those employees who retired after 01.11.2002. Nor can we apply a flat rate of 0.18% for them. Each class is governed by distinct and different parameters. These are all matters of policy making. The conferral of advantages of benefits on two different classes of retirees has a completely distinct formula and rates and it would not be possible to have a synthesis on any count or to put both the sets of retirees on any common parameters. Both classes are distinct and do not form a homogenous group. It would be extremely difficult and hazardous to adopt a flat rate as is sought to be projected. It is not a case of creating a class within a class.25. In our view any attempt to tinker with either the formula or the rate would make the whole scheme unworkable as was cautioned by this Court in the case of P.N. Menon and Ors. (supra). As held in the case of Indian Ex-Services League and Ors. (supra) the decision of this Court in D.S. Nakara (supra) is one of limited application and there is no scope for enlarging the ambit of that decision to cover all schemes made by the retirees or a demand for an identical amount of pension irrespective of the date of retirement. The reliance on the resolutions/circulars issued byReserve Bank of Indiawas also misplaced. It is true that the tapering formula was done away with byReserve Bank of Indiabut that by itself cannot entitle the retirees prior to 01.11.2002 either to be conferred the advantage at the same rate made applicable byReserve Bank of Indiaor at the flat rate of 0.24% as was sought to be projected.In our considered view, the assessment made by the Division Bench of the Madras High Court was absolutely correct. The settlement has to be taken as a package deal and it would be impossible to hold certain parts good and acceptable while finding other parts to be bad. Moreover, the recitals D, E and F in the Bipartite settlement dated 02.06.2005 (quoted hereinabove) show that a package deal was entered into and Rs. 1288 crores per annum towards all the benefits was set apart for the benefit of the employees. Any stepping up of benefit for a Section of employees is bound to inflate the figure of Rs. 1288 crores per annum though that by itself is not a ground that weighs with us. In our view both the categories of retirees, namely, pre November 2002 and post November, 2002 stand on different footing, the parameters which govern the computation of dearness relief are also on a different level. The decisions rendered by the Single Judge as well as by the Division Bench of the High Court failed to appreciate these aspects and in our view, the said decisions are completely erroneous.26. It may also be noted that the decision of the Division Bench of the Madras High Court having been confirmed by this Court, the matter stands concluded. As has been observed in paragraphs 32, 41 and 44 of Kunhayammed and Ors. v. State of Kerala and Anr. (2000) 6 SCC 359 , once leave to appeal had been granted and the appellate jurisdiction of this Court was invoked the order passed in appeal would attract the doctrine of merger. Be that as it may, we are satisfied that the Bipartite Settlement did not create any distinction which was inconsistent with the principles laid down by this Court.C] In Union of India v. P.N. Menon and Others the challenge to the cut off date and prayer for extension of similar relief of treating a portion of dearness allowance as pay for the purpose of retirement benefits was the subject matter. While accepting the appeal and negating the challenge raised by the concerned retirees, this Court in paragraphs 10 and 11 observed as under:10. The concept of dearness pay was evolved in respect of employees in different pay ranges with different percentages of the dearness pay. Thereafter the pension and gratuity were worked out and an option was given to persons, who retired on or after 30-9-1977 but not later than 30-4-1979, to choose either of the two alternatives(i) to have their pension and death-cum-retirement gratuity calculated on their pay excluding the element of dearness pay as indicated in paragraph 2 of the said office memorandum; or (ii) to have their pension and death-cum-retirement gratuity recalculated after taking into account the element of dearness pay. If the stand of the Respondents is to be accepted that this scheme should have been made available, without there being a cut-off date, to all including those who have retired even 20 to 25 years before the introduction of the scheme, then, according to us, the whole scheme shall be unworkable, because it is linked with the payment of dearness allowance, which is based on the level of price index. Different institutions/departments have introduced the system of payment of dearness allowance at different stages to mitigate the hardship of their employees with the rise in the prices of the essential articles as a result of the inflation11. On behalf of the Union of India, it has been stated that in the aforesaid office memorandum dated 25-5-1979, 30-9-1977 was fixed as the cut-off date, with reference to the average cost of living index at 272, which fell on 30-9-1977. It has been further stated that those who were entitled to the benefits of the said office memorandum, were given option either to opt for the revised formula or retain the existing formula. Some of the persons entitled to the new formula opted to retain their existing position, because in their case the application of the new formula would have resulted either in the reduction of the total pension or the increase which would have been only marginal. It has been said that under the office memorandum aforesaid, dearness allowance with reference to average price index level at 272 was treated as dearness pay for the purpose of pension for those who retired after 30-9-1977. It has also been pointed out that pensioners, who retired on or after 30-9-1977 with the benefits of dearness pay, became entitled to less dearness relief, as compared to those who retired before 30-9-1977 or retired after 30-9-1977, but had opted not to get the benefit of the impugned office memorandum.B] The principle laid down in D.S. Nakara (Supra) was explained in two decisions rendered by Constitution Benches of this Court in Krishena Kumar v. Union of India and Orsand in Indian Ex-Services League and Ors. v. Union of India and Ors. Paragraphs 12 and 14 of the latter decision in Indian Ex-Services League (Supra) were as under:12. The liberalised pension scheme in the context of which the decision was rendered in Nakara provided for computation of pension according to a more liberal formula under which average emoluments were determined with reference to the last ten months salary instead of 36 months salary provided earlier yielding a higher average, coupled with a slab system and raising the ceiling limit for pension. This Court held that where the mode of computation of pension is liberalised from a specified date, its benefit must be given not merely to retirees subsequent to that date but also to earlier existing retirees irrespective of their date of retirement even though the earlier retirees would not be entitled to any arrears prior to the specified date on the basis of the revised computation made according to the liberalised formula. For the purpose of such a scheme all existing retirees irrespective of the date of their retirement, were held to constitute one class, any further division within that class being impermissible. According to that decision, the pension of all earlier retirees was to be recomputed as on the specified date in accordance with the liberalised formula of computation on the basis of the average emoluments of each retiree payable on his date of retirement. For this purpose there was no revision of the emoluments of the earlier retirees under the scheme. It was clearly stated that if the pensioners form a class, their computation cannot be by different formula affording unequal treatment solely on the ground that some retired earlier and some retired later. This according to us is the decision in Nakara and no more14. Nakara decision came up for consideration before another Constitution Bench recently in Krishena Kumar v. Union of India. The Petitioners in that case were retired Railway employees who were covered by or opted for the Railway Contributory Provident Fund Scheme. It was held that PF retirees and pension retirees constitute different classes and it was never held in Nakara that pension retirees and PF retirees formed a homogeneous class, even though pension retirees alone did constitute a homogeneous class within which any further classification for the purpose of a liberalised pension scheme was impermissible. It was pointed out that in Nakara, it was never required to be decided that all the retirees for all purposes formed one class and no further classification was permissible. We have referred to this decision merely to indicate that another Constitution Bench of this Court also has read Nakara decision as one of limited application and there is no scope for enlarging the ambit of that decision to cover all claims made by the pension retirees or a demand for an identical amount of pension to every retiree from the same rank irrespective of the date of retirement, even though the reckonable emoluments for the purpose of computation of their pension be different. | 1 | 9,773 | 3,443 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
be computed on 0.24% for the entirety of basic pension and not just for the first slab upto Rs. 3550/-. But such calculation completely disregards that rate which is a flat rate applicable in case of post 01.11.2002 retirees is not 0.24% for the entire amount of basic pension but at a different level of 0.18% and the threshold requirement of quarterly average of the Index is also different. If we were to simply borrow the same rate of 0.18% in the case of retirees prior to 01.11.2002, the concerned retirees may well be at a disadvantage. For instance, the basic pension of Rs. 7880/- of said Santipriya Roy would yield a figure of Rs. 14184/- with flat rate of 0.18%. It will not therefore be correct to adopt and apply the same rate as is made applicable in case of post 01.11.2002 retirees. What is prayed for is also not the same rate but the same principle, namely, flat rate be made applicable to pre 01.11.2002 retirees as well but at a rate of 0.24%. 24. Would that be the correct approach? The tapering formula undoubtedly begins with 0.24% for the first segment of Rs. 3550/- of basic pension and then progressively steps down and finally reaches the level of 0.06% where the basic pension is in excess of Rs. 6010/-. What is devised by way of such tapering formula is higher rate at the lower levels of segments so that larger number of peoples would get maximum advantage and the rate thereafter keeps stepping down. Neither can we apply the rate of 0.18% which will then cause great harm and damage to the retirees nor can we adopt a flat rate of 0.24% for the entire amount of basic pension. The benefit which is sought to be conferred by the tapering formula lies in the averaging which comes to near about the same quantum as is given to the post 01.11.2002 retirees. At this stage it is noteworthy that no illustration has been placed on record to submit that even with 0.18% dearness allowance those who retired after November 2002 walk away with substantially greater advantage as against pre November 2002 retirees. In any case, this is not a matter where a Section of employees merely on account of date of retirement are being differentiated. If we adopt a flat rate of 0.24% as is being prayed for, the class of retirees who retired before 01.11.2002 will stand conferred better rate than those employees who retired after 01.11.2002. Nor can we apply a flat rate of 0.18% for them. Each class is governed by distinct and different parameters. These are all matters of policy making. The conferral of advantages of benefits on two different classes of retirees has a completely distinct formula and rates and it would not be possible to have a synthesis on any count or to put both the sets of retirees on any common parameters. Both classes are distinct and do not form a homogenous group. It would be extremely difficult and hazardous to adopt a flat rate as is sought to be projected. It is not a case of creating a class within a class. 25. In our view any attempt to tinker with either the formula or the rate would make the whole scheme unworkable as was cautioned by this Court in the case of P.N. Menon and Ors. (supra). As held in the case of Indian Ex-Services League and Ors. (supra) the decision of this Court in D.S. Nakara (supra) is one of limited application and there is no scope for enlarging the ambit of that decision to cover all schemes made by the retirees or a demand for an identical amount of pension irrespective of the date of retirement. The reliance on the resolutions/circulars issued by Reserve Bank of India was also misplaced. It is true that the tapering formula was done away with by Reserve Bank of India but that by itself cannot entitle the retirees prior to 01.11.2002 either to be conferred the advantage at the same rate made applicable by Reserve Bank of India or at the flat rate of 0.24% as was sought to be projected. In our considered view, the assessment made by the Division Bench of the Madras High Court was absolutely correct. The settlement has to be taken as a package deal and it would be impossible to hold certain parts good and acceptable while finding other parts to be bad. Moreover, the recitals D, E and F in the Bipartite settlement dated 02.06.2005 (quoted hereinabove) show that a package deal was entered into and Rs. 1288 crores per annum towards all the benefits was set apart for the benefit of the employees. Any stepping up of benefit for a Section of employees is bound to inflate the figure of Rs. 1288 crores per annum though that by itself is not a ground that weighs with us. In our view both the categories of retirees, namely, pre November 2002 and post November, 2002 stand on different footing, the parameters which govern the computation of dearness relief are also on a different level. The decisions rendered by the Single Judge as well as by the Division Bench of the High Court failed to appreciate these aspects and in our view, the said decisions are completely erroneous. 26. It may also be noted that the decision of the Division Bench of the Madras High Court having been confirmed by this Court, the matter stands concluded. As has been observed in paragraphs 32, 41 and 44 of Kunhayammed and Ors. v. State of Kerala and Anr. (2000) 6 SCC 359 , once leave to appeal had been granted and the appellate jurisdiction of this Court was invoked the order passed in appeal would attract the doctrine of merger. Be that as it may, we are satisfied that the Bipartite Settlement did not create any distinction which was inconsistent with the principles laid down by this Court.
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prayer for extension of similar relief of treating a portion of dearness allowance as pay for the purpose of retirement benefits was the subject matter. While accepting the appeal and negating the challenge raised by the concerned retirees, this Court in paragraphs 10 and 11 observed as under:10. The concept of dearness pay was evolved in respect of employees in different pay ranges with different percentages of the dearness pay. Thereafter the pension and gratuity were worked out and an option was given to persons, who retired on or after 30-9-1977 but not later than 30-4-1979, to choose either of the two alternatives(i) to have their pension and death-cum-retirement gratuity calculated on their pay excluding the element of dearness pay as indicated in paragraph 2 of the said office memorandum; or (ii) to have their pension and death-cum-retirement gratuity recalculated after taking into account the element of dearness pay. If the stand of the Respondents is to be accepted that this scheme should have been made available, without there being a cut-off date, to all including those who have retired even 20 to 25 years before the introduction of the scheme, then, according to us, the whole scheme shall be unworkable, because it is linked with the payment of dearness allowance, which is based on the level of price index. Different institutions/departments have introduced the system of payment of dearness allowance at different stages to mitigate the hardship of their employees with the rise in the prices of the essential articles as a result of the inflation11. On behalf of the Union of India, it has been stated that in the aforesaid office memorandum dated 25-5-1979, 30-9-1977 was fixed as the cut-off date, with reference to the average cost of living index at 272, which fell on 30-9-1977. It has been further stated that those who were entitled to the benefits of the said office memorandum, were given option either to opt for the revised formula or retain the existing formula. Some of the persons entitled to the new formula opted to retain their existing position, because in their case the application of the new formula would have resulted either in the reduction of the total pension or the increase which would have been only marginal. It has been said that under the office memorandum aforesaid, dearness allowance with reference to average price index level at 272 was treated as dearness pay for the purpose of pension for those who retired after 30-9-1977. It has also been pointed out that pensioners, who retired on or after 30-9-1977 with the benefits of dearness pay, became entitled to less dearness relief, as compared to those who retired before 30-9-1977 or retired after 30-9-1977, but had opted not to get the benefit of the impugned office memorandum.B] The principle laid down in D.S. Nakara (Supra) was explained in two decisions rendered by Constitution Benches of this Court in Krishena Kumar v. Union of India and Orsand in Indian Ex-Services League and Ors. v. Union of India and Ors. Paragraphs 12 and 14 of the latter decision in Indian Ex-Services League (Supra) were as under:12. The liberalised pension scheme in the context of which the decision was rendered in Nakara provided for computation of pension according to a more liberal formula under which average emoluments were determined with reference to the last ten months salary instead of 36 months salary provided earlier yielding a higher average, coupled with a slab system and raising the ceiling limit for pension. This Court held that where the mode of computation of pension is liberalised from a specified date, its benefit must be given not merely to retirees subsequent to that date but also to earlier existing retirees irrespective of their date of retirement even though the earlier retirees would not be entitled to any arrears prior to the specified date on the basis of the revised computation made according to the liberalised formula. For the purpose of such a scheme all existing retirees irrespective of the date of their retirement, were held to constitute one class, any further division within that class being impermissible. According to that decision, the pension of all earlier retirees was to be recomputed as on the specified date in accordance with the liberalised formula of computation on the basis of the average emoluments of each retiree payable on his date of retirement. For this purpose there was no revision of the emoluments of the earlier retirees under the scheme. It was clearly stated that if the pensioners form a class, their computation cannot be by different formula affording unequal treatment solely on the ground that some retired earlier and some retired later. This according to us is the decision in Nakara and no more14. Nakara decision came up for consideration before another Constitution Bench recently in Krishena Kumar v. Union of India. The Petitioners in that case were retired Railway employees who were covered by or opted for the Railway Contributory Provident Fund Scheme. It was held that PF retirees and pension retirees constitute different classes and it was never held in Nakara that pension retirees and PF retirees formed a homogeneous class, even though pension retirees alone did constitute a homogeneous class within which any further classification for the purpose of a liberalised pension scheme was impermissible. It was pointed out that in Nakara, it was never required to be decided that all the retirees for all purposes formed one class and no further classification was permissible. We have referred to this decision merely to indicate that another Constitution Bench of this Court also has read Nakara decision as one of limited application and there is no scope for enlarging the ambit of that decision to cover all claims made by the pension retirees or a demand for an identical amount of pension to every retiree from the same rank irrespective of the date of retirement, even though the reckonable emoluments for the purpose of computation of their pension be different.
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Atherton West & Co. Ltd Vs. Suti Mill Mazdoor Union And Others | also provided for the constitution by the Provincial Government of such number of Industrial Courts as it might be necessary consisting of a President assisted by such equal number of assessors as the President might determine representing employers and employees Provision was made for appeals to such industrial Courts from the awards of the Board and also for the hearing of the said appeals. After making further provision for the procedure to be adopted before the Boards as well as the Industrial Courts the Order by Clause 23 above mentioned imposed a ban on the discharge or dismissal any workman by the employer, his agent or manager during the pendency of an enquiry before the Regional Conciliation Board or the Provisional Conciliation Board, or of an appeal before the Industrial Court except with the written permission of the Regional Conciliation Officer or the Assistant Regional Conciliation Officer concerned and by cl. 24 made even order or direction issued under the provisions of the said Government Order final and conclusive except as hereinbefore provide.18. It is clear that cl. 23 imposed a ban on the discharge or dismissal of any workman pending the enquiry of an industrial dispute before the Board or an appeal before the Industrial Court and the employer, his agent or manager could only discharge or dismiss workman with the written permission of the Regional Conciliation Officer or the Assistant Regional Conciliation Officer concerned. Even if such written permission was forthcoming the employer, his agent or manager might or might not discharge or dismiss he workman and the only effect of such written permission would be to remove the ban against the discharge of dismissal of the workman during the pendency of those proceedings. The Regional Conciliation Officer or the Assistant Regional Conciliation Officer concerned would institute an enquiry and come to the conclusion whether there was a prima facie case made out for the dismissal of the workman and the employer, his agent or manager was not actuated by any improper motives or did not resort to any unfair practice or victimisation in the matter of the proposed discharge or dismissal of the workman. But he was not entrusted, as the Board or the Industrial Court would be with the duty of coming to the conclusion whether the discharge or dismissal of the workman during the pendency of the proceedings was within the rights of the employer, his agent or manager. The enquiry to be conducted by the Regional Conciliation Officer or the Assistant Regional Conciliation Officer concerned was not an enquiry into an industrial dispute as to the non-employment of the workman who was sought to be discharged or dismissed, which industrial dispute would only arise after an employer, his agent or manager discharged or dismissed the workman in accordance with the written permission obtained from the officer concerned this was the only scope of the enquiry before the Regional Conciliation Officer or the Assistant Regional Conciliation Officer concerned and the effect of the written permission was not to validate the discharge or dismissal but merely to remove the ban on the powers of the employer, his agent or manager to discharge or dismiss the workman during the pendency of the proceedings. Once such written permission was granted by him, that order made or direction issued by him was to be final and conclusive and was not to be questioned by any party thereto in any proceedings. The only effect of cl. 24(1) was to prevent any party to the pending proceeding from challenging the written permission thus granted by the officer concerned. Such written permission could not be made the subject-matter of any appeal at the instance of either party and both the parties would be bound by the order made or direction issued by the officer concerned so far as it gave or refused the permission to the employer, his agent or manager in the matter of the proposed discharge or dismissal of the workman.19. This was the only scope of the provision of cls. 23 and 24 (1) above mentioned. Once the written permission was granted by the officer concerned, the ban against the discharge or dismissal of the workman would be removed and the employer, his agent or manager could in the exercise of his discretion discharge or dismiss the workman but in that event an industrial dispute within the meaning of its definition contained in S. 2 (k) of the Industrial Disputes Act, 1947 would arise and the workmen who had been discharged or dismissed would be entitled to have that industrial dispute referred to the Regional Conciliation Board for enquiry into the same. That right of the workman to raise an industrial dispute could not be taken away in the manner suggested by Shri C. K. Daphatary by having resort to the provisions of cls. 23 and 24 (1) aforesaid. That right was given to the workman by the terms of the Industrial Disputes Act, 1947 and the U.P. Industrial Disputes Act, 28 of 1947 and would remain unaffected by any of the provisions hereinbefore referred to.20. We are, therefore, of the opinion that this contention of Shri C. K. Daphtary also fails.21. We may before concluding advert to one circumstance and that is that even though Labour Appellate Tribunal rightly confined its jurisdiction to determining substantial questions of law involved in the appeal, it nevertheless observed that even on the facts the conclusions of the Board were perfectly justified and there was no substance in the appeal on merits as well. The appellants were not heard at all on merits and it was hardly legitimate for the Labour Appellate Tribunal suo motu to consider the merits of the appeal and arrive at a finding in regard to the same. If at all the Labour Appellate Tribunal had any jurisdiction in regard to the merits it was incumbent upon it to have heard the Appellants in regard to the merits before arriving at a conclusion in regard to the same. | 0[ds]12. These amendments in cls. 4 and 7 (3) are enough in our opinion to repel the contention of Shri. C. K. Daphtary that the absence of Shri J. K. Bhagat from the last meeting and also his non-participation in the making and signing of the award rendered the award void and inoperative. The Board was empowered under the amended cls. 4 and 7 (3) to act in the absence of Shri J. K. Bhagat and the award as it was made and signed by the two remaining members viz., Shri R. P. Maheshwari and Shri B. B. Singh was lawful and binding on the parties.This was the only scope of the provision of cls. 23 and 24 (1) above mentioned. Once the written permission was granted by the officer concerned, the ban against the discharge or dismissal of the workman would be removed and the employer, his agent or manager could in the exercise of his discretion discharge or dismiss the workman but in that event an industrial dispute within the meaning of its definition contained in S. 2 (k) of the Industrial Disputes Act, 1947 would arise and the workmen who had been discharged or dismissed would be entitled to have that industrial dispute referred to the Regional Conciliation Board for enquiry into the same. That right of the workman to raise an industrial dispute could not be taken away in the manner suggested by Shri C. K. Daphatary by having resort to the provisions of cls. 23 and 24 (1) aforesaid. That right was given to the workman by the terms of the Industrial Disputes Act, 1947 and the U.P. Industrial Disputes Act, 28 of 1947 and would remain unaffected by any of the provisions hereinbefore referred to.Shri C. K. Daphtary contended that the order made by the Additional Regional Conciliation Officer on 12-10-1950 giving the Appellant permission to dismiss Respondents 2 3 and 4 was final and conclusive in regard to the Appellants right to dismiss them from their employ and their dismissal accordingly by the Appellant could not be the foundation of any industrial dispute which could be referred to the Regional Conciliation Board at the instance of Respondent1. He further contended that if no industrial, dispute could thus arise the Regional Conciliation Board had no Jurisdiction to entertain the same and the award made by the Board was therefore, without Jurisdiction, void and inoperative and could not also be confirmed by the Labour Appellate Tribunal.17. We are unable to accept this contention. The Government Notification dated 10-3-1948 was issued by the Governor of the United Provinces in exercise of the powers conferred by cls (b), (c), (d) and (g) of section 3 and section 8 of the United Provinces Industrial Disputes Act, 1947 It provided for the constitution by the provincial Government of such number of Conciliation Boards as might be deemed necessary for the settlement of industrial disputes consisting of three members of which one was to be the Conciliation Officer for the area, one was to be representative of the employers and one was to be the representative of workmen the Conciliation Officer for the area being the Chairman of the Board. The order provided for the made in which industrial dispute may be referred to the Board for enquiry and the manner in which the enquiry was to be conducted. It also provided for the constitution by the Provincial Government of such number of Industrial Courts as it might be necessary consisting of a President assisted by such equal number of assessors as the President might determine representing employers and employees Provision was made for appeals to such industrial Courts from the awards of the Board and also for the hearing of the said appeals. After making further provision for the procedure to be adopted before the Boards as well as the Industrial Courts the Order by Clause 23 above mentioned imposed a ban on the discharge or dismissal any workman by the employer, his agent or manager during the pendency of an enquiry before the Regional Conciliation Board or the Provisional Conciliation Board, or of an appeal before the Industrial Court except with the written permission of the Regional Conciliation Officer or the Assistant Regional Conciliation Officer concerned and by cl. 24 made even order or direction issued under the provisions of the said Government Order final and conclusive except as hereinbefore provide.18. It is clear that cl. 23 imposed a ban on the discharge or dismissal of any workman pending the enquiry of an industrial dispute before the Board or an appeal before the Industrial Court and the employer, his agent or manager could only discharge or dismiss workman with the written permission of the Regional Conciliation Officer or the Assistant Regional Conciliation Officer concerned. Even if such written permission was forthcoming the employer, his agent or manager might or might not discharge or dismiss he workman and the only effect of such written permission would be to remove the ban against the discharge of dismissal of the workman during the pendency of those proceedings. The Regional Conciliation Officer or the Assistant Regional Conciliation Officer concerned would institute an enquiry and come to the conclusion whether there was a prima facie case made out for the dismissal of the workman and the employer, his agent or manager was not actuated by any improper motives or did not resort to any unfair practice or victimisation in the matter of the proposed discharge or dismissal of the workman. But he was not entrusted, as the Board or the Industrial Court would be with the duty of coming to the conclusion whether the discharge or dismissal of the workman during the pendency of the proceedings was within the rights of the employer, his agent or manager. The enquiry to be conducted by the Regional Conciliation Officer or the Assistant Regional Conciliation Officer concerned was not an enquiry into an industrial dispute as to the non-employment of the workman who was sought to be discharged or dismissed, which industrial dispute would only arise after an employer, his agent or manager discharged or dismissed the workman in accordance with the written permission obtained from the officer concerned this was the only scope of the enquiry before the Regional Conciliation Officer or the Assistant Regional Conciliation Officer concerned and the effect of the written permission was not to validate the discharge or dismissal but merely to remove the ban on the powers of the employer, his agent or manager to discharge or dismiss the workman during the pendency of the proceedings. Once such written permission was granted by him, that order made or direction issued by him was to be final and conclusive and was not to be questioned by any party thereto in any proceedings. The only effect of cl. 24(1) was to prevent any party to the pending proceeding from challenging the written permission thus granted by the officer concerned. Such written permission could not be made the subject-matter of any appeal at the instance of either party and both the parties would be bound by the order made or direction issued by the officer concerned so far as it gave or refused the permission to the employer, his agent or manager in the matter of the proposed discharge or dismissal of the workman.We are, therefore, of the opinion that this contention of Shri C. K. Daphtary also fails.21. We may before concluding advert to one circumstance and that is that even though Labour Appellate Tribunal rightly confined its jurisdiction to determining substantial questions of law involved in the appeal, it nevertheless observed that even on the facts the conclusions of the Board were perfectly justified and there was no substance in the appeal on merits as well. The appellants were not heard at all on merits and it was hardly legitimate for the Labour Appellate Tribunal suo motu to consider the merits of the appeal and arrive at a finding in regard to the same. If at all the Labour Appellate Tribunal had any jurisdiction in regard to the merits it was incumbent upon it to have heard the Appellants in regard to the merits before arriving at a conclusion in regard to the same. | 0 | 3,012 | 1,459 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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also provided for the constitution by the Provincial Government of such number of Industrial Courts as it might be necessary consisting of a President assisted by such equal number of assessors as the President might determine representing employers and employees Provision was made for appeals to such industrial Courts from the awards of the Board and also for the hearing of the said appeals. After making further provision for the procedure to be adopted before the Boards as well as the Industrial Courts the Order by Clause 23 above mentioned imposed a ban on the discharge or dismissal any workman by the employer, his agent or manager during the pendency of an enquiry before the Regional Conciliation Board or the Provisional Conciliation Board, or of an appeal before the Industrial Court except with the written permission of the Regional Conciliation Officer or the Assistant Regional Conciliation Officer concerned and by cl. 24 made even order or direction issued under the provisions of the said Government Order final and conclusive except as hereinbefore provide.18. It is clear that cl. 23 imposed a ban on the discharge or dismissal of any workman pending the enquiry of an industrial dispute before the Board or an appeal before the Industrial Court and the employer, his agent or manager could only discharge or dismiss workman with the written permission of the Regional Conciliation Officer or the Assistant Regional Conciliation Officer concerned. Even if such written permission was forthcoming the employer, his agent or manager might or might not discharge or dismiss he workman and the only effect of such written permission would be to remove the ban against the discharge of dismissal of the workman during the pendency of those proceedings. The Regional Conciliation Officer or the Assistant Regional Conciliation Officer concerned would institute an enquiry and come to the conclusion whether there was a prima facie case made out for the dismissal of the workman and the employer, his agent or manager was not actuated by any improper motives or did not resort to any unfair practice or victimisation in the matter of the proposed discharge or dismissal of the workman. But he was not entrusted, as the Board or the Industrial Court would be with the duty of coming to the conclusion whether the discharge or dismissal of the workman during the pendency of the proceedings was within the rights of the employer, his agent or manager. The enquiry to be conducted by the Regional Conciliation Officer or the Assistant Regional Conciliation Officer concerned was not an enquiry into an industrial dispute as to the non-employment of the workman who was sought to be discharged or dismissed, which industrial dispute would only arise after an employer, his agent or manager discharged or dismissed the workman in accordance with the written permission obtained from the officer concerned this was the only scope of the enquiry before the Regional Conciliation Officer or the Assistant Regional Conciliation Officer concerned and the effect of the written permission was not to validate the discharge or dismissal but merely to remove the ban on the powers of the employer, his agent or manager to discharge or dismiss the workman during the pendency of the proceedings. Once such written permission was granted by him, that order made or direction issued by him was to be final and conclusive and was not to be questioned by any party thereto in any proceedings. The only effect of cl. 24(1) was to prevent any party to the pending proceeding from challenging the written permission thus granted by the officer concerned. Such written permission could not be made the subject-matter of any appeal at the instance of either party and both the parties would be bound by the order made or direction issued by the officer concerned so far as it gave or refused the permission to the employer, his agent or manager in the matter of the proposed discharge or dismissal of the workman.19. This was the only scope of the provision of cls. 23 and 24 (1) above mentioned. Once the written permission was granted by the officer concerned, the ban against the discharge or dismissal of the workman would be removed and the employer, his agent or manager could in the exercise of his discretion discharge or dismiss the workman but in that event an industrial dispute within the meaning of its definition contained in S. 2 (k) of the Industrial Disputes Act, 1947 would arise and the workmen who had been discharged or dismissed would be entitled to have that industrial dispute referred to the Regional Conciliation Board for enquiry into the same. That right of the workman to raise an industrial dispute could not be taken away in the manner suggested by Shri C. K. Daphatary by having resort to the provisions of cls. 23 and 24 (1) aforesaid. That right was given to the workman by the terms of the Industrial Disputes Act, 1947 and the U.P. Industrial Disputes Act, 28 of 1947 and would remain unaffected by any of the provisions hereinbefore referred to.20. We are, therefore, of the opinion that this contention of Shri C. K. Daphtary also fails.21. We may before concluding advert to one circumstance and that is that even though Labour Appellate Tribunal rightly confined its jurisdiction to determining substantial questions of law involved in the appeal, it nevertheless observed that even on the facts the conclusions of the Board were perfectly justified and there was no substance in the appeal on merits as well. The appellants were not heard at all on merits and it was hardly legitimate for the Labour Appellate Tribunal suo motu to consider the merits of the appeal and arrive at a finding in regard to the same. If at all the Labour Appellate Tribunal had any jurisdiction in regard to the merits it was incumbent upon it to have heard the Appellants in regard to the merits before arriving at a conclusion in regard to the same.
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thus arise the Regional Conciliation Board had no Jurisdiction to entertain the same and the award made by the Board was therefore, without Jurisdiction, void and inoperative and could not also be confirmed by the Labour Appellate Tribunal.17. We are unable to accept this contention. The Government Notification dated 10-3-1948 was issued by the Governor of the United Provinces in exercise of the powers conferred by cls (b), (c), (d) and (g) of section 3 and section 8 of the United Provinces Industrial Disputes Act, 1947 It provided for the constitution by the provincial Government of such number of Conciliation Boards as might be deemed necessary for the settlement of industrial disputes consisting of three members of which one was to be the Conciliation Officer for the area, one was to be representative of the employers and one was to be the representative of workmen the Conciliation Officer for the area being the Chairman of the Board. The order provided for the made in which industrial dispute may be referred to the Board for enquiry and the manner in which the enquiry was to be conducted. It also provided for the constitution by the Provincial Government of such number of Industrial Courts as it might be necessary consisting of a President assisted by such equal number of assessors as the President might determine representing employers and employees Provision was made for appeals to such industrial Courts from the awards of the Board and also for the hearing of the said appeals. After making further provision for the procedure to be adopted before the Boards as well as the Industrial Courts the Order by Clause 23 above mentioned imposed a ban on the discharge or dismissal any workman by the employer, his agent or manager during the pendency of an enquiry before the Regional Conciliation Board or the Provisional Conciliation Board, or of an appeal before the Industrial Court except with the written permission of the Regional Conciliation Officer or the Assistant Regional Conciliation Officer concerned and by cl. 24 made even order or direction issued under the provisions of the said Government Order final and conclusive except as hereinbefore provide.18. It is clear that cl. 23 imposed a ban on the discharge or dismissal of any workman pending the enquiry of an industrial dispute before the Board or an appeal before the Industrial Court and the employer, his agent or manager could only discharge or dismiss workman with the written permission of the Regional Conciliation Officer or the Assistant Regional Conciliation Officer concerned. Even if such written permission was forthcoming the employer, his agent or manager might or might not discharge or dismiss he workman and the only effect of such written permission would be to remove the ban against the discharge of dismissal of the workman during the pendency of those proceedings. The Regional Conciliation Officer or the Assistant Regional Conciliation Officer concerned would institute an enquiry and come to the conclusion whether there was a prima facie case made out for the dismissal of the workman and the employer, his agent or manager was not actuated by any improper motives or did not resort to any unfair practice or victimisation in the matter of the proposed discharge or dismissal of the workman. But he was not entrusted, as the Board or the Industrial Court would be with the duty of coming to the conclusion whether the discharge or dismissal of the workman during the pendency of the proceedings was within the rights of the employer, his agent or manager. The enquiry to be conducted by the Regional Conciliation Officer or the Assistant Regional Conciliation Officer concerned was not an enquiry into an industrial dispute as to the non-employment of the workman who was sought to be discharged or dismissed, which industrial dispute would only arise after an employer, his agent or manager discharged or dismissed the workman in accordance with the written permission obtained from the officer concerned this was the only scope of the enquiry before the Regional Conciliation Officer or the Assistant Regional Conciliation Officer concerned and the effect of the written permission was not to validate the discharge or dismissal but merely to remove the ban on the powers of the employer, his agent or manager to discharge or dismiss the workman during the pendency of the proceedings. Once such written permission was granted by him, that order made or direction issued by him was to be final and conclusive and was not to be questioned by any party thereto in any proceedings. The only effect of cl. 24(1) was to prevent any party to the pending proceeding from challenging the written permission thus granted by the officer concerned. Such written permission could not be made the subject-matter of any appeal at the instance of either party and both the parties would be bound by the order made or direction issued by the officer concerned so far as it gave or refused the permission to the employer, his agent or manager in the matter of the proposed discharge or dismissal of the workman.We are, therefore, of the opinion that this contention of Shri C. K. Daphtary also fails.21. We may before concluding advert to one circumstance and that is that even though Labour Appellate Tribunal rightly confined its jurisdiction to determining substantial questions of law involved in the appeal, it nevertheless observed that even on the facts the conclusions of the Board were perfectly justified and there was no substance in the appeal on merits as well. The appellants were not heard at all on merits and it was hardly legitimate for the Labour Appellate Tribunal suo motu to consider the merits of the appeal and arrive at a finding in regard to the same. If at all the Labour Appellate Tribunal had any jurisdiction in regard to the merits it was incumbent upon it to have heard the Appellants in regard to the merits before arriving at a conclusion in regard to the same.
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Renusagar Power Company Limited Vs. General Electric Company | 20, 1990 and a further amount of Rs 1, 00, 00, 000 was deposited by Renusagar in pursuance to the order dated November 6, 1990 on December 3, 1990. These amounts have been withdrawn by General Electric. The question is how and at what rate the said amount should be adjusted against the decretal amount. It is not disputed that on the date when the said deposits were made by Renusagar and were withdrawn by General Electric, rupee- dollar exchange rate was Rs 17 per dollar. Shri Shanti Bhushan has, however, submitted that although General Electric had withdrawn the amount deposited by Renusagar, it was not able to use the same because the Reserve Bank of India did not grant the permission to General Electric to remit the amount by converting the same into U.S. dollars on account of the pendency of these appeals in this Court. In this regard, Shri Sh anti Bhushan has placed before us copies of the letters dated April 30, 1990, June 25, 1990, September 10, 1990 and November 29, 1990 of the Reserve Bank of India. On the basis of the said letters, Shri Shanti Bhushan has submitted that out of a sum of Rs 10.69 crores which was received by General Electric it was permitted by the Reserve Bank of India to utilise only Rs 3.52 crores for meeting administrative and operational expenses of the Liaison Office of General Electric and th e rest of the amount would be converted only after the decision in these appeals. Shri Shanti Bhushan has, therefore, submitted that the amounts deposited by Renusagar should be converted from Indian rupees into U.S. dollars at the exchange rate prevalent on the date of the judgment of this Court and not on the basis of the rate of exchange prevalent at the time of the said payments by Renusagar. We are unable to agree with this submission. The convertibility into U.S. dollars of money paid by Renusagar in Indian rupees is not the condition for discharge of the decree and as laid down in Forasol case the decree can be discharged by payment in Indian rupees and it is for General Electric to obtain the necessary permission from the Reserve Bank of India for such conversion of Indian rupees to U.S. dollars and the transfer thereof to the United States. If General Electric were finding a difficulty in such transfer on account of the pendency of these appeals in this Court they could have moved this Court and obtained necessary clarification in this regard. They did not choose to do so. In these circumstances, the amount of Rs 10, 69, 26, 590 which has been paid by Renusagar in pursuance to the orders date d February 21, 1990 and November 6, 1990 has to be converted into U.S. dollars on the basis of the rupee-dollar exchange rate of Rs 17.00 per dollar prevalent at the time of such payment and calculated on that basis the said amount comes to US $ 6, 289, 800.00. 142. The judgment of the High Court passing a decree in terms of the award is, therefore, affirmed. This would cover the amount awarded by the Arbitral Tribunal in U.S. dollars and interest on amounts awarded under item Nos. 1, 3 and 5 for the period from April 1, 1986 to October 15, 1986, the date of filing of the petition by General Electric for enforcement of the award in the Bombay High Court. The amount paid by Renusagar during the pendency of these appeals wil l have to be adjusted against the said decretal amount and the present liability of Renusagar under this decision has to be determined accordingly. Calculating on this basis the amount payable by Renusagar under the decree in terms of U.S. dollars is: Amount awarded by the Arbitral Tribunal: 12, 215, 622.14 Interest on US $ 2, 716, 914.72 (the total amount awarded under item Nos. 1, 3 and 5) @ 8% per annum from 1-4-1986 to 15-10-1986 in terms of theaward 117, 733.00 ------------ 12, 333, 355.14 Less: Amount paid by Renusagar in pursuance of the orders dated 21-2-1990 and 6-11-1990 during the pendency of the appeals in this Court 6, 289, 800.00 ------------- 6, 043, 555.14 143.In accordance with the decision in Forasol case the said amount has to be converted into Indian rupees on the basis of the rupee-dollar exchange rate prevailing at the time of this judgment. As per information supplied by the Reserve Bank of India, the Rupee-Dollar Exchange (Selling) Rate as on October 6, 1993 was Rs 31.53 per dollar. 144.At this stage it may be mentioned that after the arguments were concluded and the judgment had been reserved, an application [I.A. No. 9 of 1993 in C.A. Nos. 71 and 71-A of 1990] was filed on behalf of Hindalco Industries Ltd. for amendment of the cause title to substitute the applicant as appellant in C.A. No. 71 of 1990 in place of Renusagar. The said application has been moved on the ground that after the filing of the said appeal the Bombay High Court, by its order dated April 22, 1993, has sanctioned a scheme of amalgamation of Renusagar with Hindalco Industries Ltd. and the said scheme has also been sanctioned by the Allahabad High Court by its order dated March 26, 1993. A true copy of the said scheme of amalgamation has been filed along with the said application. In clause (i) of para 4 of the scheme, it is stated: "(i) If any suit, appeal or other proceedings of whatever nature (hereinafter called the proceedings) by or against the Transferor Company be pending, the same shall not be abate, be discontinued or be in any way prejudicially affected by reason of the transfer or the undertaking of the Transferor Company or of anything contained in this Scheme but the said proceedings may be continued, prosecuted and enforced by or against the Transferor Company as if this Scheme had not been made." * | 0[ds]37. In our opinion, therefore, in proceedings for enforcement of a foreign award under the Foreign Awards Act, 1961, the scope of enquiry before the court in which award is sought to be enforced is limited to grounds mentioned in Section 7 of the Act and does not enable a party to the said proceedings to impeach the award on merits.II. Bar to the enforcement of the award under Section 7(1)(a)(ii) of the Act 38. As indicated earlier, the grievance of Renusagar is that the Arbitral Tribunal on October 1, 1985 decided the preliminary objection raised byRenusagar that the Arbitrators had become functus officio and were not entitled to proceed with the arbitration proceedings on merits and that the Arbitral Tribunal thereafter proceeded to deal with the merits of the claim of General Electric without any further notice to Renusagar and as a result Renusagar was unable to present its case before the Arbitral Tribunal. This objection was not raised by Renusagar either before the learned Single Judge or before the Division Bench of the High Court. We have, however, considered the same and we do not find any substance in it. After the Terms of Reference had been drawn before t he Arbitral Tribunal on February 8, 1984, the parties had appeared before the Arbitral Tribunal at Paris for hearing which lasted for ten days between February 25 to March 8, 1985 and during the course of the said hearing Renusagar presented typed submissions and legal authorities before the Arbitral Tribunal. In these hearings, the Arbitral Tribunal concluded hearing on issues 22(g) to (p) and the matter was thereafter adjourned by the Arbitral Tribunal to June 10 but on account of sudden illness of Dr Dixit, one of the arbitrators, the matter had to be adjourned and it was ultimately fixed for October 1, 1985. On June 26, 1988, the Chairman of the Arbitral Tribunal sent a notice to the parties wherein it was stated t hat the adjourned hearing would take place in London on Tuesday from October 1 to 4 and to continue if necessary during the following week from October 7 to 11From these documents, it would appear that the stand of Renusagar was that the Arbitrators had become functus officio and they could not proceed with the arbitration and there was, therefore, no question of Renusagar appearing before the Arbitral Tribunal on the dates fixed for hearing. In these circumstances, it is not open to Renusagar to say that the Arbitral Tribunal, after having rejected, (by majority) the said objection raised by Renusagar, by order dated October 1, 1985 should have given a further notice to Renusagar asking them t o appear to make their submission before the Arbitral Tribunal on the merits on issues 22(q) to 22(bb).In this context, it may also be stated that issues 22(q) and 22(r) relate to the claim of US $ 119, 053.91 for purchase price of spare parts which is not disputed by Renusagar and issue 22(s) relates to claim for compensatory damages on the said amount which has been allowed on the same basis as the claim for compensatory damages on regular interest (Item No2) under issue 22(k). Rest of the matters covered by issues 22(t) to 22(bb) related tos of Renusagar and claims by General Electric againsts which have been disallowed by the Arbitral Tribunal40. We are, therefore, of the opinion that the enforcement of the arbitral award is not barred by Section 7(1)(a)(ii) of the Foreign Awards Act on the ground that Renusagar was unable to present its case before the Arbitral TribunalWe find it difficult to accept this contention. It cannot be held that by not using the words "public policy of India" and only using the words "public policy" in Section 7(1)(b)(ii) of the Foreign Awards Act, Parliament intended to deviate from the provisions of the New York Convention contained in Article V(2)(b) which uses the words "public policy of that country" implying public policy of the country where recognition and enforcement is sought.That Parliament did not intend to deviate from the terms of the New York Convention is borne out by the amendment which was introduced in the Act by Act 47 of 1973 after the decision of t his Court in Tractoroexport case5 whereby Section 3 was substituted to bring it in accord with the provisions of the New York Convention. The Foreign Awards Act has been enacted to give effect to the New York Convention which seeks to remedy the defects in the Geneva Convention of 1927 that hampered the speedy settlement of disputes through arbitration. The Foreign Awards Act is, therefore, intended to reduce the time taken in recognition and enforcement of foreign arbitral awards. The New York Convention seeks to achieve this objective by dispensing with the requirement of the leave to enforce the award by the courts where the award is made and thereby avoid the problem of "double exequatue. It also restricts t he scope of enquiry before the court enforcing the award by eliminating the requirement that the award should not be contrary to the principles of the law of the country in which it is sought to be relied upon. Enlarging the field of enquiry to include public policy of the courts whose law governs the contract or of the country of place of arbitration, would run counter to the expressed intent of the legislation45. We are, therefore, of the view that the words "public policy" used in Section 7(1)(b)(ii) of the Foreign Awards Act refer to the public policy of India and the recognition and enforcement of the award of the Arbitral Tribunal cannot be questioned on the ground that it is contrary to the public policy of the State of New York63.In view of the absence of a workable definition of "international public policy" we find it difficult to construe the expression "public policy" in Article V(2)(b) of the New York Convention to mean international public policy. In our opinion the said expression must be construed to mean the doctrine of public policy as applied by the courts in which the foreign award is sought to be enforced. Consequently, the expression public policy in Section 7(1)(b)(ii) of the Foreign Awards Act means the doctrine of public policy as applied by the courts in India. This raises the question whether the narrower concept of public policy as applicable in the field of public international law should be applied or the wider concept of public policy as applicable in the field of municipal l aw. 64. Keeping in view the object underlying the enactment of the Foreign Awards Act, this Court has also favoured a liberal construction of the provisions of the said Act. In Renusagar case I1 it has been observed: (SCC p. 723, para"It is obvious that since the Act is calculated and designed to subserve the cause of facilitating international trade and promotion thereof by providing for speedy settlement of disputes arising in such trade through arbitration, any expression or phrase occurring therein should receive, consisting with its literal and grammatical sense, a liberal construction." *65. This would imply that the defence of public policy which is permissible under Section 7(1)(b)(ii) should be construed narrowly. In this context, it would also be of relevance to mention that under Article I(e) of the Geneva Convention Act of 1927, it is permissible to raise objection to the enforcement of arbitral award on the ground that the recognition or enforcement of the award is contrary to the public policy or to the principles of the law of the country in which it is sought to be relied upon. To the same effect is the provision in Section 7(1) of the Protocol &Convention Act of 1837 which requires that the enforcement of the foreign award must not be contrary to the public policy or the law of India. Since the expression "public policy" covers the field not covered by the words "and the law of India" which follow the said expression, contravention of law alone will not attract the bar of public policy and something more than contravention of law is required66. Article V(2)(b) of the New York Convention of 1958 and Section 7(1)(b)(ii) of the Foreign Awards Act do not postulate refusal of recognition and enforcement of a foreign award on the ground that it is contrary to the law of the country of enforcement and the ground of challenge is confined to the recognition and enforcement being contrary to the public policy of the country in which the award is set to be enforced. There is nothing to indicate that the expression "public policy" in Article V(2)(b) of the New York Convention and Section 7(1)(b)(ii) of the Foreign Awards Act is not used in the same sense in which it was used in Article 1(c) of the Geneva Convention of 1927 and Section 7(1) of the Protocol and Convention Act of 1937. This would mean that "public policy" in Section 7(1)(b)(ii) has been used in a narrower sense and in order to attract to bar of public policy the enforcement of the award must invoke something more than the violation of the law of India. Since the Foreign Awards Act is concerned with recognition and enforcement of foreign awards which are governed by the principles of private international law, the expression "public policy" in Section 7(1)(b)(ii) of the Foreign Awards Act must necessarily be construed in the sense the doctrine of public policy is applied in the field of private international law. Applying the said criteria it must be held that the enforcement of a foreign award would be refused on the ground that it is contrary to public policy if such enforcement would be contrary to (i) fundamental policy of Indian law; or (ii) the interests of India; or (iii) justice or morality.V. Is the award contrary to public policy of India? 67. Having examined the scope of public policy under Section 7(1)(b)(ii) of the Foreign Awards Act, we will now proceed to consider the various grounds on the basis of which the said provision is invoked by Renusagar to bar the enforcement for the award of the Arbitral Tribunal. As indicated earlier, Renusagar has invoked the said provision on the ground that enforcement of the award would be contrary to the public policy for the reason that such enforcement73. Our attention has also been invited to a decision of the Supreme Court of Austria dated May 11, 1983 which is extracted, in brief, in Yearbook of Commercial Arbitration, Volume X (1985) pp.. In that case, an award had been made in favour of the appellant who was a national of Holland against the respondent who was an Austrian whereby the respondent was directed to pay to the appellant DM 667, 500. The appellant sought enforcement of the award in Austria and the said enforcement was opposed by the respondent on the ground that the underlying contracts, though nominally delivery contracts, were in reality sales and purchases on a margin basis and such contracts are contrary to Austrian foreign exchange law, unless specific authorisation therefor was given by the competent authorities. The respondent invoked Article V(2)(b) of the New York Convention, 1958 to oppose the recognition and enforcement of the award75. As laid down by this Court, FERA is a statute enacted for the "national economic interest" and the object of various provisions in the said Act is to ensure that the nation does not lose foreign exchange which is very much essential for the economic survival of the nation. (See: LIC of India v. Escorts Ltd. 23 and M.G. Wagh v. Jay Engineering Works Ltd. 24)76. Keeping in view the aforesaid objects underlying FERA and the principles governing enforcement of exchange control laws followed in other countries, we are of the view that the provisions contained in FERA have been enacted to safeguard the economic interests of India and any violation of the said provisions would be contrary to the public policy of India as envisaged in Section 7(1)(b)(ii) of the Act. The submissions urged by Shri Venugopal to show that there has been a violation of the provisions of FERA, therefore, need examination. Shri Venugopal has ma de ad submission in this regard. In the first place, he has urged that in awarding delinquent interest, under item No. 3 the Arbitral Tribunal has acted in disregard of the provisions of FERA and secondly the enforcement of the award of the Arbitral Tribunal would result in violation of the provisions of FERA. As regards the first submission relating to award of delinquent interest, it may be stated that the said submission involves an attack on the merits of t he award which is impermissible at the stage. of enforcement. We have, however, examined this submission on merits and are of the view that it is without substance. Shri Venugopal has urged that under the original approval of January 2, 1964 by th e Government of India of the terms of the loan by General Electric to Renusagar the total amount of loan was to be repaid in 16 equall instalments between the 30th and the 120th month from the effective date of the contract with specific provision for interest from the 16th to the 30th month to be capitalised and the interest was specifically restricted to the period from the 16th to the 30th month and thereafter on capitalisation from the 30th month to the 120th month and that no interest was payable without FERA sanction after the due date of each instalmentThis contention is no longer open to Renusagar in view of the earlier decision of this Court in Renusagar Case 11, wherein this Court has considered the question whether there was an obligation to pay further interest after June 30, 1967 till payment under the contract79. From the observations aforementioned in Renusagar Case II it is apparent that the original contract postulates payment of interest till payment and the effect of the order of the Government of India dated August 1, 1969 was that the original schedule of payment remained operative. Since the original contract had been approved by the Government of India it cannot be said that the award of interest for delayed payment of instalments involved violation of the provisions of FERAWe are unable to agree. It is true that in that case this Court was considering the question of arbitrability of the disputes but for the purpose of deciding that issue it was necessary to consider whether disputes arose out of or are related to the contract and for that purpose it was necessary to construe the terms of the contract and it cannot, therefore, be said that the said decision does not conclude this aspect of the matter. In this context, it may also be pointed out that after the decision in Renusagar Case I, an application for clarification of the said judgment was moved by Renusagar in this Court wherein clarification was sought in respect of certain paragraphs in the judgment and in the said application no objection was raised with regard to the observations quoted above. Moreover, the said application was dismissed by this Court by order dated October 29, 198881. As regards the second submission of Shri Venugopal that the enforcement of the Arbitral award would constitute violation of Section 9(1) of FERA which imposes prohibition to make any payment to or for the credit of any person resident outside India except in accordance with any general or special exemption from the provisions of thisn which may be granted conditionally or unconditionally by the Reserve Bank. The submission is that in view of the earlier order of the Government of India dated August 1, 1969 refusing to approve rescheduling of payments the bar of Section 9 will operate and no order for enforcement of the award can be madeWe do not find any support for this submission from the language of Section 47(3) of FERA wherein the words used are "to recover any sum which, apart from the said provisions and any such term, would be due, whether as debt, damages or otherwise". The words "would be" which precede the word "due" indicate that the quantum of the amount has to be fixed in the legal proceedings and that it need not be a predetermined amount. Moreover in the present case, we are concerned with the proceedings for the enforcement of the award wherein the amount due has already been determined by the Arbitral Tribunal. We are, therefore, unable to hold that the enforcement of the award would involve violation of any of the provisions of FERA and for that reason it would be contrary to public policy of India so as to render the award unenforceable in view of Section 7(1)(b)(ii) of the Act(b) Disregard of the orders of Delhi High Court 85. It is the fundamental principle of law that orders of courts must be complied with for any action which involves disregard for such orders would adversely affect the administration of justice and would be destructive of the rule of law and would be contrary to public policy. The question, however, is whether the enforcement of the award of the Arbitral Tribunal would involve disregard of any order of a court. The submission of Shri Venugopal is that in the matter o f withholding of payment of regular interest Renusagar were acting in accordance with the interim orders that were passed by Delhi High Court in the writ petition filed by Renusagar which remained in operation from 1970 to 1980 and, therefore, the Arbitral Tribunal was in error in awarding compensatory damages for retention by Renusagar of the amount of income tax payable on the regular interest during the period the writ petition was pending in the Delhi High Court and enforcement of the award of compensatory damages on regular interest under item No. 2 is, therefore, contrary to public policy. We find it difficult to accept this contention. Renusagar had filed an application, C.M. No., in C.W. No. 170 of 1970 in the Delhi High Court. Prayer (i) of C.M. No.0 was as under:"Pending the hearing and final disposal of this petition for an interim order an injunction restraining the respondent and its officers, servants and agents from taking any steps on proceedings in enforcement furtherance, pursuance or implementation or in any manner giving effect to the said orders both dated September 11, 1969 or from preventing the payment by the petitioner of tax free interest of 6 per cent per annum to IGE in accordance with the approval granted by the respondent Orders dated September 8, 1965 and June 7, 1967 and to grant an exparte order pending notice." *86. On February 24, 1970, the following interim order was passed in C.M. No.: "There shall be interim injunction as prayed for. Mr Kirpal to file his counter by March 24, 1970."87. The matter came before the court after notice on May 18, 1970 on which date the following order was passed:"Mr Ravinder Narain states that he will give security, of the assets of the company to the satisfaction of the Commissioner of Income Tax, Lucknow for Rs Four lakhs. Let this be done within a month from today. Interim injunction and stay to continue. In default of compliance, as above, petition for stay will stand dismissed." *88. From the prayer contained in C.M.W and the orders dated February 24, 1970 and May 18, 1970 passed on the said application, it would appear that pending the hearing and final disposal of the writ petition, the re was an interim injunction restraining the Union of India, the respondent in the said writ petition, and its officers, servants and agents from taking any steps on proceedings in enforcement, furtherance, pursuance or implementation or in any manner giving effect to the said orders dated September 11, 1969 whereby tax exemption had been withdrawn and also restraining from preventing Renusagar from paying tax on interest of 6 per cent per annum to General Electric in accordance with the approval granted under orders dated September 3, 1965 and June 7, 1967. The only condition imposed by the Court was that Renusagar was required to give security for Rs 4, 00, 000 to the satisfaction of Commissioner of Income Tax, Lucknow within one month. These orders would, therefore, show that on furnishing of the said security Renusagar was free to remit regular interest @ 6 per cent per annum to General Electric as per the approval granted under orders dated September 8, 1965 and June 7, 1967. The said orders of the Delhi High Court did not also prevent Renusagar from depositing in the Government Treasury the income tax payable on the amount of regular interest payable @ 6 1/2 per cent per annum. The said orders instead of preventing Renusagar from remitting the said amount of tax free interest in fact permitted Renusagar to make the said payments to General Electric. It cannot, therefore, be said that in retaining the said amount with itself while the writ petition was pending in the Delhi High Court during the period from 1970 to 1980 Renusagar was acting in accordance with the orders passed by the Delhi High Court and the payment of the said amount by Renusagar to General Electric or depositing in the Government Treasury the income tax on the amount of regular interest payable to General Electric would have amounted to disregard of the said orders. In the circumstances, it is not possible to hold that in awarding compensatory damages under item No. 2 for wrongfully withholding the amount of regular interest during the period from 1970 onwards the Arbitral Tribunal has penalised Renusagar for not disregarding the orders of the Delhi High Court and the enforcement of the said award would be contrary to public policy of India.(c) Interest on Interest (Compound Interest) 89. This relates to award of compensatory damages under item Nos. 2, 4 and 6. It has been urged that the award of interest on interest (compound interest) is not permissible under the law of New York as well as the law in India and is also contrary to public policy of the State of New York as well as the public policy of India. While construing the provisions of Section 7(1)(b)( ii) of the Foreign Awards Act, we have held that under the said provisions the enforcement of a foreign award can be objected to only on the ground of such enforcement being contrary to public policy of India and that public policy of other countries e.g. country of the law of contract of the courts of the place of arbitration cannot be taken into consideration. For that reason an objection to the enforceability of the award of the Arbitration Tribunal cannot be entertained on the ground it is contrary to the public policy of the State of New York. Wewould, however, examine whether award of interest on interest or compound interest is contrary to public policy of India. Before we refer to the law in India in this regard, we may take note of the law in England to which reference has been made by Shri Venugopal during the course of his submissions. At common law in England the principle that is applied is that laid down in "the reluctant decision" of the House of Lords in London Chatham and Dover Rly. Co. v. South Eastern Rly. Co.28 that in the absence of any agreement or statutory provision for the payment of interest, a court has no power to award interest, simple or compound, by way of damages for the detention (i.e., tile late payment) of a debt. The injustice resulting from this rule has been sought to be removed by legislative intervention. By Section 3 of the Law Reform Miscellaneous Provisions) Act, 1934 power was conferred on the court of record to award interest in proceedings for recovery of any debt or damages where the debt remained unpaid until the judgment was given. Section 3 of the 1934 Act was repealed and replaced by SectionA inserted in the Supreme Court Act 1981 by the Administration of Justice Act 1982 and power to award interest was extended to cover a case where the debt is paid late, after Proceedings for its recovery have begun but before they have been concluded. The power to award interest does not extend to a case where a debt is paid later but before any proceeding for its recovery have begun. The rule in Lodon Chatham and Dover Rly V. case 28 has been qualified by the Court of Appeal in Wadsworth v.Ly dall29 to apply only to claims for interest by way of general damages and does not extend to claims for special damages. In the field of Admiralty law simple interest is awarded, as a matter of course, on damages recovered in a damage action . In the area of equity the Chancery Courts, differing from the common law courts, have regularly awarded simple interest is ancillary relief in respect of equitable remedies, such as specific Performance, recession and the taking of an account and t he Chancery Courts gave regularly awarded interest, including not only simple interest but also compound interest, when they thought that justice so demanded, that is to say in cases where money had been obtained and retained by fraud or wher e it had been withheld or misapplied by a trustee or anyone else in a fiduciary position. See: President of India v. La Pintada Cia Navegacion SA 30.)93. We may now examine the law governing award of interest in India. Shri Venugopal has placed reliance on the provisions of Section 3(3)(c) of the Interest Act, 1978. Section 3 empowers a court to allow interest andn (3) of the said se ction provides exceptions to the main provision. In clause (c) ofn (3) it is laid down that nothing in this section shall empower the court to award interest upon interest. Shri Venugopal has also placed reliance on the decision of the Judicial Committee of the Privy Council in Bengal Nagpur Rly. Co. Ltd. v. Ruttanji Ramji33 and the decisions of this Court in Union of India v. West Punjab Factories Ltd.34; Union of India v. Watkins Mayor &Co.35; Union of India v. A. L. Rallia Ram36 and Thawardas Pherumal v. Union of India37. The decision of the Judicial Committee of the Privy Council in Bengal Nagpur Rly. Co. v. Ruttanji Ramji33 is based on London Chatham &Dover Rly. Co. case28 and following the said decision, it has been laid down that "interest for the period prior to the date of the suit may be awarded, if there is an agreement for the payment of interest at a fixed rate, or it is payable by the usage of trade having the force of law, or in the provision of any substantive law entitling the plaintiff to recover interest". The said decision of the Privy Council has been followed by this Court in Thawardas Pherumal v. Union of India37, Union of India v. Rallia Ram36, Union of India v. Watkins Mayor &Co.35 and Union of India v. West Punjab Factories34 and it has been held that in the absence of any agreement, express or implied, or any provision of law, it is not possible to award interest by way of damages. This would show that there is no absolute bar on the award of interest by way of damages and it would be permissible to do so if there is usage or contract, express or implied, or any provision of law to justify the award of such interest. Merely because in Section 3(3)(c) of the Interest Act, 1978, the court is precluded from awarding interest on interest does not mean that it is not permissible to award such interest under a contract or usage or under the statute. It is common knowledge that provision is made for the payment of compound interest in contracts for loans advanced by banks and financial institutions and the said contracts are enforced by courts. Hence, it cannot be said that award of interest on interest, i.e., compound interest, is against the public policy of India. We are, therefore, unable to accept the contention that award of interest on interest, i.e., compound interest is contrary to public policy of India and the award in respect of compensatory damages awarded under item Nos . 2, 4 and 6 cannot be enforced under Section7(1)(b)(ii) of the Act. (d) Damages on Damages 94. This objection relates to award of compensatory damages under item No. 4. The submission of Shri Venugopal is that since the contract did not provide for payment of interest for the period subsequent to the date of maturity, the delinquent interest that has been awarded under item No. 3 is in the nature of damages and the award of compensatory damages under item No. 4 amounts to award of damages on damages which is impermissible and is contrary to public policy of India. In support of this submission, Shri Venugopal has placed reliance on the decision of this Court in Trojan &Co. Ltd. v. Nagappa Chettiar38 wherein interest ha d been allowed on damages and it was contended before this Court that the said interest could not be allowed on damages because it would amount to awarding damages on damages which is opposed to precedent and principle. The Court rejected the said contention and held that interest is allowed by court of equity in the case of money obtained or retained by fraud and in that case, the plaintiff had paid the money to defendants on account of fraudulent practices by the defendants on the plaintiffs95. In the present case, the said decision has no application because the basic postulate of the contention of Shri Venugopal is that the contract did not make any provision for payment of interest for the period subsequent to the date of maturity of the promissory notes. This contention has been considered by us and it has been negatived and in view of the earlier decision of this Court in Renusagar Case 11 we have held that the contract provided for payment of interest for the period subsequent to the date of maturity of the promissory notes till actual payment was made. In the circumstances, it cannot be said that the delinquent interest that has been awarded under item No. 3 has been awarded by way of damages and not by way of interest. Once it is held that delinquent interest awarded under item No. 3 is by way of interest then there is no question of damages being awarded on damages and it is, therefore, not necessary to go into the question whether awarding damages on damages is contrary to public policy of IndiaUnjust Enrichment 96. Relying upon the decision of the Supreme Court of Romania date( February 16, 1985, which is extracted, in brief, in the Year Book of Commercial Arbitration, Vol. XIV (1989) pp. 689 to 691, Shri Venugopal has submitted that unjust enrichment is contrary to public policy of India and since the enforcement of award of the Arbitral Tribunal would result in unjust enrichment of General Electric it cannot be enforced under Section 7(1)(b)(ii) of the Foreign Awards Act. This contention of Shri Venugopal has a bearing on the award of delinquent interest under item No. 3, as well as on the award of compensatory damages under item Nos. 2 and 4 and award of costs under item, No. 797. In the case decided by the Romanian Supreme Court, a Lebanese shipowner had agreed by a charter party with the Romanian State enterprise to transport from Costantza (Romania) to Bandar Abbas (Iran) certain goods which had been sold C& to an Iranian buyer. The voyage was interrupted at Tripoli (Lebanon) where the shipowner had its seat. At Tripoli all merchandise disappeared, according to the shipowner because of war, and according to the Romanian enterprise because of a local fraudulent sale. The dispute was referred to arbitration and in the arbitration award, the shipowner was directed to refund to the Romanian enterprise part of the freight it had received as well as the value of the lost goods. The Romanian enterprise sought enforcement of the arbitration award in Romania. The Lebanese shipowner objected to the request on various grounds including the ground that it was not obliged to refund the value of the goods since they had been fully paid for by the Iranian buyer. It was submitted that the enforcement of the award was contrary to Romanian public p olicy since it resulted in unjust enrichment of the Romanian enterprise inasmuch as the said enterprise was allowed to receive for the second time the price of goods which had already been paid by the Iranian buyersRejecting the said objection the Romanian Supreme Court held that the arbitral award showed that the Romanian enterprise meant to obtain repayment of the value of the cargo and the freight on behalf of the Iranian buyer acting as agent or trust and since the Romanian enterprise did not act on its own behalf, although it had no express mandate, the conditions for unjust enrichment were not met in the case at issue and, consequently, the public policy of Romanian international private law had not be en violated. The said decision has proceeded on the basis that unjust enrichment was part of the public policy of Romanian international private law but in that case it was found that there was no violation of the said principle of public policy100. We do not consider it necessary to go into the question whether the principle of unjust enrichment is a part of the public policy of India since we are of the opinion that even if it be assumed that unjust enrichment is contrary to public policy of India, Renusa gar cannot succeed because the unjust enrichment must relate to the enforcement of the award and not to its merits in view of the limited scope of enquiry in proceedings for the enforcement of a foreign award under the Foreign Awards Act. The objections raised by Renusagar based on unjust enrichment do not relate to the enforcement of the award because it is not the case of Renusagar that General Electric has already received the amount awarded under the arbitration award and is seeking to obtain enforcement of the award to obtain further payment and would thus be unjustly enriching itself. The objections about unjust enrichment raised by Renusagar go to the merits of the award, that is, with regard to the quantum awarded by the Arbitral Tribunal under item Nos. 2, 3, 4 and 7, which is beyond the scope of the objections that can be raised under Section 7(1)(b)(ii) of the Foreign Awards Act. To hold otherwise would mean that in every case where the arbitrators award an amount which is higher than the amount that should have been awarded, the award would be open to challenge on the ground of unjust enrichment. Such a course is not permissible under the New York Convention and the Foreign Awards Act. We have, however, examined the objections raised by Renusagar relating to unjust enrichment even on merits and we are not satisfied that the amounts awarded under item Nos. 2, 3, 4 and 7 are so excessive as to result in unjust enrichment of General ElectricThis rule in Gourley case40 will, however, apply only where two conditions are satisfied: ( 1) the money, for the loss of which damages are awarded, would have been Subjected to tax as income; and (2) the damages awarded to the plaintiff are not subject to tax in his hands. (See: Chitty on Contracts, 26th Edn., Vol. I, pp., para 1841. In Hanover Shoe v. United Shoe Machinery v Corpn.41 the Court of Appeal had remanded the matter to the District Court to take account of the additional taxes Hanover would have paid for computation of damages, on the view that since onlyx profits can be reinvested or distributed to shareholders, Hanover was damaged only to the extent of thex profits that it failed to receiveThe U.S. Supreme Court reversed the said decision of the Court of Appeal and held that the District Court did not err on the question of computation. The Court observed:"As Hanover points out, since it will be taxed when it recovers damages from United for both the actual and the trebled damages, to diminish the actual damages by the amount of the taxes that it would have paid had it received greater profits in the years it was damaged would be to apply a double deduction for taxation, leaving Hanover with less income than it would have had if United had not injured it." *103. Since General Electric would be liable to pay U.S. tax on the amount of compensatory damages awarded under item Nos. 2 and 4 of the Award, it cannot be said that there would be unjust enrichment by General Electric on account ofn of U.S. tax payable on the amount of regular interest and delinquent interest while assessing compensatory damages under item Nos. 2 and 4104. As regards amount of delinquent interest awarded under item No. 3, it has been submitted that since interest is not payable under the contract in respect of the period subsequent to the date of maturity of the promissory notes, the award of delinquent interest for the said period would result in unjust enrichment. This argument about liability for such interest has already been considered by us and we have found that under the contract interest is payable for the period subsequent to the maturity of the promissory notes till payment. There is, therefore, no substance in the contention about unjust enrichment on this accountWith regard to the award of delinquent interest Linder item No. 3 and compensatory damages on the delinquent interest under item No. 4 it has been contended that in view of the agreement between General Electric and Renusagar for rescheduling of the instalments Renusagar were not required to pay the instalments as per the original schedule and, therefore, Renusagar could not be held liable for interest for delayed payment of the instalments which fall due till August 1, 1969, and they could not also be saddled with compensatory damages fornonpayment ofinstalments that fall due till August 1, 1969 as per the original scheduleWe have dealt with the effect of order of the Government of India dated August 1, 1969, refusing to give its appro val to the proposed arrangement for rescheduling of payment of instalments and we have held that as a result of such refusal the original contract regarding payment of those instalments would revive and Renusagar were required to pay the instalments in accordance with the terms of the said contract and were required to pay interest for delayed payment of those instalments and therefore, it cannot be said that award of delinquent interest for the period during which the matter was pending consideration with the Government of India, would result in unjust enrichment of General Electric. 41 20 L Ed 2d 1231: 392 US 481 (1968)105. As regards item No. 7 relating to costs, the case of Renusagar is that the costs awarded by the arbitrators are excessive and unconscionable and further that the costs incurred in relation to the litigation in India, which has been found inadmissible earlier by the Arbitral Tribunal has been included in the costs of arbitrati on that have been awarded resulting in unjust enrichment of General Electric. We have considered this objection of Renusagar and we do not feel that it can be a ground for refusal of enforcement of award under Section 7(1)(b)(ii) of the Foreign Awards Act. 106. For the reasons aforesaid, none of the objections raised by Renusagar against the enforcement of the award under Section 7(1)(b)(ii) of the Foreign Awards Act for the reason that such enforcement is contrary to public policy of India merits acceptanceVI. Relevant date for conversion of the amount awarded front foreign currency to Indian currency 107. In the field of conflict of laws money serves a twofold function, viz., (i) as a means of measurement; and (ii) medium of payment. The currency in which a debt is expressed or a liability to pay damages is calculated is called the " money of account" or "money of contract" or "money of measurement" and the currency in which the said debt or liability is to be discharged is called the " money of payment". The money of account is to be ascertained from the terms of the contract construed in accordance with the proper law of the contract and the money of payment is determined by the law of the country in which such debt or liability is payable i.e. lex loci solutionis. (See: Dicey &Morris, The Conflict of Laws, 11 th Edn., Vol. 2, Rules 209 and 210.)108. Where the money of account and the money of payment are not identical the amount of units of the currency of account owed by the debtor must, by an exchange operation, be translated into the currency in which he is obliged to pay. This is a matter of substance and the rate of exchange for such conversion is determined by the proper law of the contract or the law governing the liability. (See: Dicey &Morris, The Conflict of Laws pp. 1442 and 1453.) By this process the quantum of the monetary obligation is determined. The questions relating to conversion of currency often arise at the stage of discharge of the monetary obligation when the debtor makes the payment in a currency other than the money of payment. Such conversion is to be made on the basis of the exchange rate prevailing on the date of payment at the place of payment. (See: Dicey &Morris, The Conflict of Laws, Rule 210(2) at pp.; Mann: The Legal Aspect of Money, 5th Edn., p. 323.) Conversion of the currency is also necessary in cases where legal proceedings have to be instituted by the creditor. In some legal systems the judgment can be given by the courts in the currency of that country only and, therefore, it becomes necessary to convert the monetary obligation into the currency of that country at the time of institution of the legal proceedings. The exchange for such conversion will depend on the lex fori, i.e., the law of the forum and in many legal systems it is the date the cause of action arose, i.e., the date of breach while in some systems it is the date of judgment. In legal systems where it is permissible to obtain a judgment in foreign currency conversion would be necessary at the stage of enforcement or execution of the judgment. Same problem would arise when a judgment of a foreign court is sought to be enforced. The relevant date for applying the exchange rate for such conversion depends upon the lex for, i.e., the law of the forum because it is a matter relating to the procedure. (See: Che shire &North, Private International Law, 12th Edn., p. 106.) What applies to enforcement of judgments equally applies to enforcement of arbitral awards109. In the instant case, there is no dispute that the money of account as well as the money of payment is the same, namely, U.S. dollar. Here, the question of convertibility from U.S. dollars to Indian rupees arises in the context of enforcement of the award of the Arbitral Tribunal which is in U.S. dollars. We are, therefore, required to examine the position under the Indian law with reference to conversion of foreign currency into Indian currency at the stage of enforcement of a judgment or award in foreign currency110. Prior to 1975, the law in England, was that an English court will not give judgment for the payment of an amount expressed in foreign currency and the amount of any foreign currency had to be converted in sterling on or before the date of judgment and the date for the purpose of such conversion was the date when the cause of action arose. This was the law laid down by the House of Lords in United Railways of Havana &Regla Warehouses Ltd., Re42. This decision was overruled by the House of Lords (by majority) in 1975 in Miliangos v. George Frank (Textiles) Ltd.43 In that case, a Swiss seller had agreed to supply English buyers with goods at a price expressed in the contract in Swiss francs. The goods and invoices were delivered but the price was not paid and bill s of exchange drawn in Switzerland and accepted by the buyers were dishonoured on presentation. The seller brought action in England wherein he claimed the sums due in Swiss francs. Originally he had asked for conversion of Swiss francs into sterling at the breach date in view of the law laid down in United Railways of Havana, Re, case42 but subsequently in view of the decision of the Court of Appeal in Schorsch Meier G.m.b.Hv. Hennin44 the seller amended his statement of claim so as to claim the amount due to him in Swiss francs as an alternative to claiming judgment in sterling. Bristow, J. gave judgment for the moneys due expressed in sterling, holding that the rule that the English courts could express their judgments only in sterling had not been altered either by Parliament or by any decision of the House of Lords. The Court of Appeal reversed the said decision and, following Schorsch Meier G.m.b.H. v. Hennin44 gave judgment for the seller ordering the buyers to pay the sum due in Swiss francs, or the equivalent in sterling at the time of payment. Affirming the said decision of the Court of Appeal and departing from its earlier decision in the Havana Railways case42 the House of Lords has held that it was legitimate for the House of Lords to depart from the "breach date conversion" rule and recognise that an English court was entitled to give judgment for a sum of money expressed in a foreign currency in the case of obligations of a money character to pay foreign currency arising under a contract, the proper law of which was that of a foreign country and where the money of account and payment is that of that country, or possibly of some other country but not of the United Kingdom. It was further held that the claim had to be specifically for the Tomkinson v. First Pennsylvania Banking and Trust Co. foreign currency or its sterling equivalent and the conversion shall be at the date of payment, i.e., the date when the courts authorise enforcement of the judgment in terms of sterling. The said decision was, however, confined in its application to foreign money obligations and the court left open for future discussion the question whether the rule applying to money obligations should apply as regards claims for damages for breach of contract or for tort . In his dissenting opinion, Lord Simon, has reiterated the law laid down in Havana Railways case 42. it may be of interest to note that Lord Wilberforce, who gave the leading speech in Miliangos case 43 had appeared in Havana Railway case 42 bu t failed to persuad the House of Lords to accept his contention. He, however, succeeded 15 years later, in having his views accepted by the House of Lords. Subsequently in Services Europe Atlantique Sud (Seas) of Paris v. Stockholms Rederia ktiebolag Svea of Stockholm45 the House of Lords has extended the rule laid down in Miliangos case 43 to claims for damages for tort and breach of contract. The rule laid down in Miliangos case 43 has been held to be applicable to an action at common law on a foreign judgment (See: Dicey &Morris, The Conflict of Laws, 11 th Edn., Vol. 2, p. 146 1.) In relation to arbitral awards the matter had come up before the Court of Appeal in Jugoslavenska Oceanska Plovidba v. Castle Investment CoInC.46 wherein it was held that an award could be made by the arbitrators in England in terms of U.S. dollar and that the same could be enforced by converting the foreign currency into sterling at the rate prevailing at the date of the award117. In India, the law relating to conversion of foreign currency into Indian currency in the matter of enforcement of judgments or awards is governed by the decision of this Court in Forasol case 4. That case arose out of a contract between Forasol, a foreign company and the Oil and Natural Gas Commission, a Government of India Undertaking. Certain disputes arose between the parties which were referred to arbitration in accordance with the arbitration clause contained in the contract. The said arbitration was governed by the Indian Arbitration Act, 1940. The award directed certain payments to be made in French francs but did not specify the rate of exchange at which the French francs were to be converted into Indian rupees. Proceedings were initiated ill Delhi High Court for passing a decree in terms of the award an d a question arose as to the exchange rate for conversion of French francs into Indian rupees. This Court examined the question with reference to the following dates:(1) the date when the amount become due and pay able; (2) the date of the commencement of the action; (3) the date of the decree; (4) the date when the court orders execution to issue; and (5) the date when the decretal amount is paid or realised118. The court also pointed out that in a case where a decision has been passed by the court in terms of an award made in a foreign currency a sixth date, namely, the date of award also enters the competition. As there was lack of authority of any Indian court, this Court has considered the decision of English Courts including the Miliangos case43119. The first date, i.e., the date when the amount became due and payable, was not accepted by the Court for the reason that it cannot be said to be just, fair or equitable because in a case where the rate of exchange has gone against the plaintiff, the defendant escapes by paying a lesser sum than what he was bound to and thus is the gainer by his default while in the converse case where the rate of exchange has gone against the defendant, the defendant would be subject to a much greater burden than what he should bear. The Court felt that the same criticism would apply to the second of the dates, namely, the date of the commencement of the action or suit because suits are not often disposed of for an unconscionably long time and if we take into account the time that would be spent in appeals, further appeals, and revision and review applications which may be filed, the longevity of the litigation is doubled, if not tripled, so that none can with any certainty predict even a probable date for its termination. As regards the third date, namely, the date of the decree, the Court observed that a decree crystallizes the amount payable by the defendant to the plaintiff and it is the decree which entities ther to recover the judgment debt through the processes of l aw. Dealing with the objection that the date of tile decree of the trial court is not final decree for there may be appeals or other proceedings against it in superior courts and by the time the matter is finally determined, the rate of exchange prevailing on that date may be nowhere near that which prevailed at the date of the decree of the trial court, it was observed that this difficulty is easily overcome by selecting the date when the action is finally disposed of, in the sense that the decree becomes final and binding between the parties after all remedies against it are exhausted. As regards the fourth date, i.e., the date when the court orders execution to issue, it was felt that execution of a decree is not a simple matter because it involves execution of a money decree and thes property has to be attached and pending attachment a third party, at times set up by the, may prefer a claim to the attached property which will have to be investigated and determined by the executing court and even where no claim is preferred the attached property cannot be brought to sale immediately and certain formalities have to be complied with and even after the sale has taken place, the judgment debtor may further hold up the receipt of the sale proceeds by the decreeholder by raising objection to the conduct of the sale and at times, a fresh auction sale may be have to be held if ther commits default in paying the balance of the purchase price and a considerable time would thus elapse between the date when the court orders execution to issue and the date of the receipt of the sale proceeds by the. It was also pointed out that at times the judgment debt is not recovered in full when the attached property is sold in execution and further application for execution may become necessary and this would lead to an anomalous position for the Court would have to fix the rate o f exchange, which may be different from each application for execution. A further difficulty that was pointed out by the court was that execution can only issue for a sum expressed in Indian currency and it cannot be for a sum which would be determined and fixed by the executing court at the time of granting an execution application. With regard to the fifth date, namely, the date of payment, the Court felt that there were three practical and procedural difficulties namely, payment of court fees, the pecuniary limits of the jurisdiction of courts and execution. Keeping in view the considerations referred to above, this Court declined to adopt the rule laid down in Miliangos case 43 and held that it would be fair to both the parties to take the date of passing the decree, i.e., the date of judgment. The said date was also held applicable to a case where a decree is made in terms of an award made in a foreign currency123. It appears that both the parties are not satisfied with said view of the Division Bench of the High Court in applying the decision in Forasol case4 to the present caseIt is no doubt true that in the Forasol case4 this Court was dealing with an award governed by Indian Arbitration Act but that does not affect the applicability of the said decision to proceedings for enforcement of a foreign award in Indian courts because the matter of conversion of foreign currency into Indian currency at the stage of enforcement of an award is governed by the same principle irrespective of the fact whether the award is governed by the Indian Arbitration Act or a foreign award governed by the Foreign Awards ActMoreover the position has been made clear by Section 4(1) of the Foreign Awards Ac t which lays down that a foreign award shall subject to the provisions of this Act be enforceable in India as if it were an award made on a matter referred to arbitration in India. The said provision equates a foreign award to an Indian award for the purpose of enforcement with the exception that such enforcement will be subject to the provisions of the Foreign Awards Act. There is nothing in the provisions of the Foreign Awards Act which excludes the applicability of the principles laid down in Forasol case4 with regard to enforcement of foreign awards. In our opinion, therefore, the enforcement of the award in the instant case is governed by the law laid down in Forasol case4We are unable to agree with this submission of Shri Venugopal. The manner in which the court should pass the decree in a case where a foreign award is sought to be enforced is a matter of procedure and not of substance and is governed by lex fori, i.e., the law of the forum. The rule laid down in Miliangos case43 has been described as a rule of procedure. (See: Services Europe Atlantique Sud (Seas) of Paris v. Stockh olms Rederiaktiebolag Svea of Stockholms45 at p. 704; Cheshire &North, Private International Law, 12th Edn., p. 100). For the same reasons, the principles laid down in Forasol case4 must be held to be rule of procedural law and would be applicable to the proceedings for enforcement of a foreign award under the Foreign Awards Act127. We find that in the said passage which falls in Chapter XI relating to "The Payment of Foreign Money Obligations" the learned author is dealing with the conversion of the money of account to the money of payment and he has not considered the matter of convertibility of the foreign currency at the stage of enforcement of a judgment or awardWe have already indicated that convertibility of the money of account into the money of payment involves determination of the liability and is a matter of substance governed by tile proper laws of contract. This question arises prior to the stage of the judgment or award. Here we are dealing with a case where the award has already been made and is sought to be enforced in India and the question is about the conversion of the foreign currency in which the award has been ma de into Indian currency. This question has been dealt with by Dr F.A. Mann in Chapter XII relating to "The Institution of Legal Proceedings and its effect upon Foreign Money Obligations"133. As regards the submissions of Shri Shanti Bhushan assailing the correctness of the decision in Forasol case4 it may be stated that even Miliangos case43 does not provide for conversion on the basis of the exchange rate prevailing on the date of actual payment and it postulates conversion on the basis of the date when the court authorises enforcement of the judgment. The rule in Miliangos case43 has not been adopted in Section 27 of the Judiciary Act of New York, as amended in 1987 and it provides that a judgment or decree in foreign currency shall be converted into currency of the United States at the rateof exchange prevailing on the date of entry of the judgment or decree. "The Legislatures concern of how this could be effected by a sheriff appears to be the reason for not adopting the date of execution of the judgment in the amended provision. The practical and procedural difficulties pointed out by this Court in Forasol case 4 against adopting the date of payment cannot, therefore, be ignored. As at present advised, we are not satisfied that the decision in Forasol case4 calls for reconsideration. Since this is the only question raised in C.A. No. 3 79/92 filed by General Electric, the said appeal must fail. VIII. Interest pendentelite and future interest138. In the instant case, the Arbitral Tribunal has awarded interest by way of compensatory damages in respect of the period prior to the date of reference as well as for the period covered by the arbitral proceedings up to March 31, 1986. In respect of the period subsequent to March 31, 1986, the Arbitral Tribunal has awarded interest only on item No. 1 (regular interest), item No. 3 (delinquent interest) and item No. 5 (costs of spare parts) until the payment. No direction with regard to the payment of interest pendente lite, i.e., for the period the proceedings were pending in the Bombay High Court till the date of decree as well as for the period subsequent to the decree, has bee n given either by the learned Single Judge or by the Division Bench of the High Court. Taking into consideration the facts and circumstances of the case we are not inclined to interfere with that part of judgment of the High Court and to award interest for the period the proceedings for enforcement of the award were pending in the Bombay High Court and in this CourtWe ought, here, to take notice of the developments in the international monetary exchange system insofar as Indo American currencies are concerned. The effect of these changes in the exchange rates made a landslide change in the size of the financial obligations of Renusagar under the Award. The liability thereunder in terms of Indian rupees virtually became double. It is, however, true that that so far General Electric is concerned, it secures no more than what the Award gave it in terms of U.S. dollars. This judgment assures to General Electric that quantum of U.S. currency. But the area of the discretion of the court is in the interlocutor y. We are, therefore, not inclined to award interest pendentelite, i.e., during the pendency of the proceedings for enforcement of the award in the High Court as well as this Court and we hereby recall the directions contained in the order dated February 21, 1990 as regards payment of interest on the balance of the decretal amount. The award of interest for the period subsequent to the date of passing of the award till the passing of this judgment in these appeals is, therefore, confined to the period till the date of institution of the proceedings for enforcement of the Arbitration Award in the Bombay High Court i.e. up to October 15, 1986140. As regards future interest, we are inclined to take the view that for the period subsequent to the date of this judgment Renusagar should pay interest @ 18 per cent on the decretal amount that remains due after adjusting the sum of Rs 10, 69, 26, 590 paid by Renusagar to General Electric in pursuance to the directions given by this Court on February 21, 1990 and November 6, 1990 till the payment of the said balance amountIX. Adjustment of the sum of Rs 10, 69, 26, 590 deposited by Renusagar against the decretal amount:141. As indicated earlier, in p ursuance to the orders of this Court dated February 21, 1990, Renusagar deposited a sum of Rs 9, 69, 26, 590 on March 20, 1990 and a further amount of Rs 1, 00, 00, 000 was deposited by Renusagar in pursuance to the order dated November 6, 1990 on December 3, 1990. These amounts have been withdrawn by General Electric. The question is how and at what rate the said amount should be adjusted against the decretal amount. It is not disputed that on the date when the said deposits were made by Renusagar and were withdrawn by General Electric, rupeedollar exchange rate was Rs 17 per dollar. Shri Shanti Bhushan has, however, submitted that although General Electric had withdrawn the amount deposited by Renusagar, it was not able to use the same because the Reserve Bank of India did not grant the permission to General Electric to remit the amount by converting the same into U.S. dollars on account of the pendency of these appeals in this Court. In this regard, Shri Sh anti Bhushan has placed before us copies of the letters dated April 30, 1990, June 25, 1990, September 10, 1990 and November 29, 1990 of the Reserve Bank of India. On the basis of the said letters, Shri Shanti Bhushan has submitted that out of a sum of Rs 10.69 crores which was received by General Electric it was permitted by the Reserve Bank of India to utilise only Rs 3.52 crores for meeting administrative and operational expenses of the Liaison Office of General Electric and th e rest of the amount would be converted only after the decision in these appeals. Shri Shanti Bhushan has, therefore, submitted that the amounts deposited by Renusagar should be converted from Indian rupees into U.S. dollars at the exchange rate prevalent on the date of the judgment of this Court and not on the basis of the rate of exchange prevalent at the time of the said payments by Renusagar. We are unable to agree with this submission. The convertibility into U.S. dollars of money paid by Renusagar in Indian rupees is not the condition for discharge of the decree and as laid down in Forasol case the decree can be discharged by payment in Indian rupees and it is for General Electric to obtain the necessary permission from the Reserve Bank of India for such conversion of Indian rupees to U.S. dollars and the transfer thereof to the United States. If General Electric were finding a difficulty in such transfer on account of the pendency of these appeals in this Court they could have moved this Court and obtained necessary clarification in this regard. They did not choose to do so. In these circumstances, the amount of Rs 10, 69, 26, 590 which has been paid by Renusagar in pursuance to the orders date d February 21, 1990 and November 6, 1990 has to be converted into U.S. dollars on the basis of ther exchange rate of Rs 17.00 per dollar prevalent at the time of such payment and calculated on that basis the said amount comes to US $ 6, 289, 800.00142. The judgment of the High Court passing a decree in terms of the award is, therefore, affirmed. This would cover the amount awarded by the Arbitral Tribunal in U.S. dollars and interest on amounts awarded under item Nos. 1, 3 and 5 for the period from April 1, 1986 to October 15, 1986, the date of filing of the petition by General Electric for enforcement of the award in the Bombay High Court. The amount paid by Renusagar during the pendency of these appeals wil l have to be adjusted against the said decretal amount and the present liability of Renusagar under this decision has to be determined accordingly143.In accordance with the decision in Forasol case the said amount has to be converted into Indian rupees on the basis of ther exchange rate prevailing at the time of this judgment. As per information supplied by the Reserve Bank of India, ther Exchange (Selling) Rate as on October 6, 1993 was Rs 31.53 per dollar144.At this stage it may be mentioned that after the arguments were concluded and the judgment had been reserved, an application [I.A. No. 9 of 1993 in C.A. Nos. 71 andA of 1990] was filed on behalf of Hindalco Industries Ltd. for amendment of the cause title to substitute the applicant as appellant in C.A. No. 71 of 1990 in place of Renusagar. The said application has been moved on the ground that after the filing of the said appeal the Bombay High Court, by its order dated April 22, 1993, has sanctioned a scheme of amalgamation of Renusagar with Hindalco Industries Ltd. and the said scheme has also been sanctioned by the Allahabad High Court by its order dated March 26, 1993. A true copy of the said scheme of amalgamation has been filed along with the said application. | 0 | 39,365 | 12,442 | ### Instruction:
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20, 1990 and a further amount of Rs 1, 00, 00, 000 was deposited by Renusagar in pursuance to the order dated November 6, 1990 on December 3, 1990. These amounts have been withdrawn by General Electric. The question is how and at what rate the said amount should be adjusted against the decretal amount. It is not disputed that on the date when the said deposits were made by Renusagar and were withdrawn by General Electric, rupee- dollar exchange rate was Rs 17 per dollar. Shri Shanti Bhushan has, however, submitted that although General Electric had withdrawn the amount deposited by Renusagar, it was not able to use the same because the Reserve Bank of India did not grant the permission to General Electric to remit the amount by converting the same into U.S. dollars on account of the pendency of these appeals in this Court. In this regard, Shri Sh anti Bhushan has placed before us copies of the letters dated April 30, 1990, June 25, 1990, September 10, 1990 and November 29, 1990 of the Reserve Bank of India. On the basis of the said letters, Shri Shanti Bhushan has submitted that out of a sum of Rs 10.69 crores which was received by General Electric it was permitted by the Reserve Bank of India to utilise only Rs 3.52 crores for meeting administrative and operational expenses of the Liaison Office of General Electric and th e rest of the amount would be converted only after the decision in these appeals. Shri Shanti Bhushan has, therefore, submitted that the amounts deposited by Renusagar should be converted from Indian rupees into U.S. dollars at the exchange rate prevalent on the date of the judgment of this Court and not on the basis of the rate of exchange prevalent at the time of the said payments by Renusagar. We are unable to agree with this submission. The convertibility into U.S. dollars of money paid by Renusagar in Indian rupees is not the condition for discharge of the decree and as laid down in Forasol case the decree can be discharged by payment in Indian rupees and it is for General Electric to obtain the necessary permission from the Reserve Bank of India for such conversion of Indian rupees to U.S. dollars and the transfer thereof to the United States. If General Electric were finding a difficulty in such transfer on account of the pendency of these appeals in this Court they could have moved this Court and obtained necessary clarification in this regard. They did not choose to do so. In these circumstances, the amount of Rs 10, 69, 26, 590 which has been paid by Renusagar in pursuance to the orders date d February 21, 1990 and November 6, 1990 has to be converted into U.S. dollars on the basis of the rupee-dollar exchange rate of Rs 17.00 per dollar prevalent at the time of such payment and calculated on that basis the said amount comes to US $ 6, 289, 800.00. 142. The judgment of the High Court passing a decree in terms of the award is, therefore, affirmed. This would cover the amount awarded by the Arbitral Tribunal in U.S. dollars and interest on amounts awarded under item Nos. 1, 3 and 5 for the period from April 1, 1986 to October 15, 1986, the date of filing of the petition by General Electric for enforcement of the award in the Bombay High Court. The amount paid by Renusagar during the pendency of these appeals wil l have to be adjusted against the said decretal amount and the present liability of Renusagar under this decision has to be determined accordingly. Calculating on this basis the amount payable by Renusagar under the decree in terms of U.S. dollars is: Amount awarded by the Arbitral Tribunal: 12, 215, 622.14 Interest on US $ 2, 716, 914.72 (the total amount awarded under item Nos. 1, 3 and 5) @ 8% per annum from 1-4-1986 to 15-10-1986 in terms of theaward 117, 733.00 ------------ 12, 333, 355.14 Less: Amount paid by Renusagar in pursuance of the orders dated 21-2-1990 and 6-11-1990 during the pendency of the appeals in this Court 6, 289, 800.00 ------------- 6, 043, 555.14 143.In accordance with the decision in Forasol case the said amount has to be converted into Indian rupees on the basis of the rupee-dollar exchange rate prevailing at the time of this judgment. As per information supplied by the Reserve Bank of India, the Rupee-Dollar Exchange (Selling) Rate as on October 6, 1993 was Rs 31.53 per dollar. 144.At this stage it may be mentioned that after the arguments were concluded and the judgment had been reserved, an application [I.A. No. 9 of 1993 in C.A. Nos. 71 and 71-A of 1990] was filed on behalf of Hindalco Industries Ltd. for amendment of the cause title to substitute the applicant as appellant in C.A. No. 71 of 1990 in place of Renusagar. The said application has been moved on the ground that after the filing of the said appeal the Bombay High Court, by its order dated April 22, 1993, has sanctioned a scheme of amalgamation of Renusagar with Hindalco Industries Ltd. and the said scheme has also been sanctioned by the Allahabad High Court by its order dated March 26, 1993. A true copy of the said scheme of amalgamation has been filed along with the said application. In clause (i) of para 4 of the scheme, it is stated: "(i) If any suit, appeal or other proceedings of whatever nature (hereinafter called the proceedings) by or against the Transferor Company be pending, the same shall not be abate, be discontinued or be in any way prejudicially affected by reason of the transfer or the undertaking of the Transferor Company or of anything contained in this Scheme but the said proceedings may be continued, prosecuted and enforced by or against the Transferor Company as if this Scheme had not been made." *
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dated February 21, 1990 as regards payment of interest on the balance of the decretal amount. The award of interest for the period subsequent to the date of passing of the award till the passing of this judgment in these appeals is, therefore, confined to the period till the date of institution of the proceedings for enforcement of the Arbitration Award in the Bombay High Court i.e. up to October 15, 1986140. As regards future interest, we are inclined to take the view that for the period subsequent to the date of this judgment Renusagar should pay interest @ 18 per cent on the decretal amount that remains due after adjusting the sum of Rs 10, 69, 26, 590 paid by Renusagar to General Electric in pursuance to the directions given by this Court on February 21, 1990 and November 6, 1990 till the payment of the said balance amountIX. Adjustment of the sum of Rs 10, 69, 26, 590 deposited by Renusagar against the decretal amount:141. As indicated earlier, in p ursuance to the orders of this Court dated February 21, 1990, Renusagar deposited a sum of Rs 9, 69, 26, 590 on March 20, 1990 and a further amount of Rs 1, 00, 00, 000 was deposited by Renusagar in pursuance to the order dated November 6, 1990 on December 3, 1990. These amounts have been withdrawn by General Electric. The question is how and at what rate the said amount should be adjusted against the decretal amount. It is not disputed that on the date when the said deposits were made by Renusagar and were withdrawn by General Electric, rupeedollar exchange rate was Rs 17 per dollar. Shri Shanti Bhushan has, however, submitted that although General Electric had withdrawn the amount deposited by Renusagar, it was not able to use the same because the Reserve Bank of India did not grant the permission to General Electric to remit the amount by converting the same into U.S. dollars on account of the pendency of these appeals in this Court. In this regard, Shri Sh anti Bhushan has placed before us copies of the letters dated April 30, 1990, June 25, 1990, September 10, 1990 and November 29, 1990 of the Reserve Bank of India. On the basis of the said letters, Shri Shanti Bhushan has submitted that out of a sum of Rs 10.69 crores which was received by General Electric it was permitted by the Reserve Bank of India to utilise only Rs 3.52 crores for meeting administrative and operational expenses of the Liaison Office of General Electric and th e rest of the amount would be converted only after the decision in these appeals. Shri Shanti Bhushan has, therefore, submitted that the amounts deposited by Renusagar should be converted from Indian rupees into U.S. dollars at the exchange rate prevalent on the date of the judgment of this Court and not on the basis of the rate of exchange prevalent at the time of the said payments by Renusagar. We are unable to agree with this submission. The convertibility into U.S. dollars of money paid by Renusagar in Indian rupees is not the condition for discharge of the decree and as laid down in Forasol case the decree can be discharged by payment in Indian rupees and it is for General Electric to obtain the necessary permission from the Reserve Bank of India for such conversion of Indian rupees to U.S. dollars and the transfer thereof to the United States. If General Electric were finding a difficulty in such transfer on account of the pendency of these appeals in this Court they could have moved this Court and obtained necessary clarification in this regard. They did not choose to do so. In these circumstances, the amount of Rs 10, 69, 26, 590 which has been paid by Renusagar in pursuance to the orders date d February 21, 1990 and November 6, 1990 has to be converted into U.S. dollars on the basis of ther exchange rate of Rs 17.00 per dollar prevalent at the time of such payment and calculated on that basis the said amount comes to US $ 6, 289, 800.00142. The judgment of the High Court passing a decree in terms of the award is, therefore, affirmed. This would cover the amount awarded by the Arbitral Tribunal in U.S. dollars and interest on amounts awarded under item Nos. 1, 3 and 5 for the period from April 1, 1986 to October 15, 1986, the date of filing of the petition by General Electric for enforcement of the award in the Bombay High Court. The amount paid by Renusagar during the pendency of these appeals wil l have to be adjusted against the said decretal amount and the present liability of Renusagar under this decision has to be determined accordingly143.In accordance with the decision in Forasol case the said amount has to be converted into Indian rupees on the basis of ther exchange rate prevailing at the time of this judgment. As per information supplied by the Reserve Bank of India, ther Exchange (Selling) Rate as on October 6, 1993 was Rs 31.53 per dollar144.At this stage it may be mentioned that after the arguments were concluded and the judgment had been reserved, an application [I.A. No. 9 of 1993 in C.A. Nos. 71 andA of 1990] was filed on behalf of Hindalco Industries Ltd. for amendment of the cause title to substitute the applicant as appellant in C.A. No. 71 of 1990 in place of Renusagar. The said application has been moved on the ground that after the filing of the said appeal the Bombay High Court, by its order dated April 22, 1993, has sanctioned a scheme of amalgamation of Renusagar with Hindalco Industries Ltd. and the said scheme has also been sanctioned by the Allahabad High Court by its order dated March 26, 1993. A true copy of the said scheme of amalgamation has been filed along with the said application.
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Jalgaon District Central Co-Operative Bankltd Vs. Pundalikrao Laxmanrao Suryawanshi & Ors | of gratuity, but his claim in the present proceedings is for a further sum of Rupees 7,605.5. Gratuity Fund Rules were sanctioned by the Board of Directors of the appellant-Bank on August 17, 1957. They were framed under the Banks bye-laws. These rules (hereafter called old rules) were forwarded to the Registrar of Co-operative Societies for approval and they were approved with some modifications except Rules 6, 10, and 15 which were kept under consideration. The principal argument pressed before us by Shri Chagla was that Rules 6 and 10 having not been approved by the Registrar, all the old rules must be deemed to have remained inoperative because these two rules form the real substratum of the scheme embodied in those rules.Without these two rules, the remaining rules, according to the argument, cannot effectively operate. We are unable to accept this submission.6. It would be useful at this stage to reproduce old Rules 6, 7, 9, 10, 15 and 16 which alone are suggested on behalf of the appellant to be relevant."6. These Rules shall be deemed to have come into force (i.e. in respect of an employee retiring, resigning and/or having terminated his services) from the 1st July, 1953. Every employee who has completed at least five years service shall be granted gratuity at the rate specified herein.7. In case of retirement, resignation or termination of services gratuity shall be granted:(a) After five years but before completion of 10 years services:- half months salary for each completed year services.(b) After 10 years but before completion of 15 years service :- three-fourth of a months salary for each completed year of service.(c) After 15 years service :- three-fourth of a months salary for each completed year of service, subject to the minimum of fifteen salaries.8. * * * *9. Payment of the claims on account of the Gratuity payable under these Rules, shall be made within one month from the retirement, resignation, death or the termination of service.10. The Bank shall contribute on 30th June, every year or as soon as possible thereafter, but not later than 30th September of the year, an amount not less than the amount contributed by the Bank, as contribution to the Provident Fund.11 to 14. * * * *15. The provisions under Section 41 of the Bombay Co-operative Societies Act (Bombay Act VII of 1925) as amended up-to-date shall be applicable to the administration of the Gratuity Funds created under these Rules.16. The Board of Directors shall have powers, subject to the approval of the Registrar Co-operative Societies, Bombay State Poona, to alter, add to, or repeal these rules from time to time, provided however that no such alteration, addition or repeal shall have any retrospective effect against the interest of the employee in the employment of the Bank on that date."According to the appellants learned counsel, the Registrar having withheld approval of Rule 6, the last sentence of which provides that every employee who has completed at least 5 years service, shall be granted gratuity at the rate specified in the rules, there is no rule which imposes an obligation on the appellant-Bank to pay gratuity. This argument, in our opinion, ignores the express language of Rule 7 which, in unequivocal terms, requires gratuity to be granted in case of retirement, resignation or termination of service according to the rate specified therein. Clause (a) of this rule contains a provision similar in effect to what the last sentence of Rule 6 directs. Rule 9 also imposes an imperative obligation for the payment of gratuity under these rules within one month from the retirement, resignation, death or termination of service of the employee concerned. Rule 10, which provides for contribution of the Bank towards the Gratuity Fund, was no doubt also kept under consideration and not approved by the Joint Registrar, but this too, in our view, does not render the remaining rules ineffective; nor does this fact by itself absolve the Bank of the obligation imposed on it by Rules 7, 8 and 9. The contention that without there being a Gratuity Fund, the Bank cannot lawfully pay gratuity assumes that the Bank has no other resources out of which its liabilities under the Rules in question can be discharged - an assumption which is not easy to uphold.Once the Gratuity Fund Rules imposing an obligation on the Bank to pay gratuity to its employees are approved by the Registrar, then this obligation, in our opinion, cannot be rendered nugatory merely because there is no separate Gratuity Fund.Rule 15 which provides for the applicability of Section 41 of the Bombay Co-operative Societies Act VII of 1925 to the "administration of the Gratuity Fund" created under the rules in question, does not touch the question of the enforcement of these rules, and indeed even on behalf of the appellant, no attempt has been made to rely on Rule 15 for this purpose.7. The appellants counsel next relied on the new rules which were approved by the Joint Registrar of Co-operative Societies and were made retrospective in their operation so as to be enforceable with effect from July 1, 1953. It was, however, conceded by Shri Chagla and, in our opinion, rightly, that the new rules could not detract from or prejudicially affect the vested rights created under the old rules. Indeed old Rule 16, it may be recalled, prohibits the retrospective operation of the new rules with the object of protecting the interests of the employees. The submission that the old rules have neither been repealed, nor altered, as contemplated by Rule 16, and that the Registrar has merely withdrawn his approval to the old rules and enforced the new ones, does not advance the appellants case. The effect of old rule 16, in our opinion, cannot be negatived by describing the process as mere Withdrawal of the approval of the old rules and enforcement of the new ones,for in real substance the process seems to us to be covered by Rule 16. | 0[ds]We are unable to accept thisargument, in our opinion, ignores the express language of Rule 7 which, in unequivocal terms, requires gratuity to be granted in case of retirement, resignation or termination of service according to the rate specifiedcontention that without there being a Gratuity Fund, the Bank cannot lawfully pay gratuity assumes that the Bank has no other resources out of which its liabilities under the Rules in question can be discharged - an assumption which is not easy to uphold.Once the Gratuity Fund Rules imposing an obligation on the Bank to pay gratuity to its employees are approved by the Registrar, then this obligation, in our opinion, cannot be rendered nugatory merely because there is no separate Gratuity Fund.Rule 15 which provides for the applicability of Section 41 of the Bombay Co-operative Societies Act VII of 1925 to the "administration of the Gratuity Fund" created under the rules in question, does not touch the question of the enforcement of these rules, and indeed even on behalf of the appellant, no attempt has been made to rely on Rule 15 for thisold Rule 16, it may be recalled, prohibits the retrospective operation of the new rules with the object of protecting the interests of the employees. The submission that the old rules have neither been repealed, nor altered, as contemplated by Rule 16, and that the Registrar has merely withdrawn his approval to the old rules and enforced the new ones, does not advance the appellants case. The effect of old rule 16, in our opinion, cannot be negatived by describing the process as mere Withdrawal of the approval of the old rules and enforcement of the new ones,for in real substance the process seems to us to be covered by Rule, in our opinion, ignores the express language of Rule 7 which, in unequivocal terms, requires gratuity to be granted in case of retirement, resignation or termination of service according to the rate specifiedtherein. Clause (a) of this rule contains a provision similar in effect to what the last sentence of Rule 6 directs. Rule 9 also imposes an imperative obligation for the payment of gratuity under these rules within one month from the retirement, resignation, death or termination of service of the employee concerned. Rule 10, which provides for contribution of the Bank towards the Gratuity Fund, was no doubt also kept under consideration and not approved by the Joint Registrar, but this too, in our view, does not render the remaining rules ineffective; nor does this fact by itself absolve the Bank of the obligation imposed on it by Rules 7, 8 and 9. Thecontention that without there being a Gratuity Fund, the Bank cannot lawfully pay gratuity assumes that the Bank has no other resources out of which its liabilities under the Rules in question can be dischargedan assumption which is not easy to uphold.Once the Gratuity Fund Rules imposing an obligation on the Bank to pay gratuity to its employees are approved by the Registrar, then this obligation, in our opinion, cannot be rendered nugatory merely because there is no separate Gratuity Fund.Rule 15 which provides for the applicability of Section 41 of the BombaySocieties Act VII of 1925 to the "administration of the Gratuity Fund" created under the rules in question, does not touch the question of the enforcement of these rules, and indeed even on behalf of the appellant, no attempt has been made to rely on Rule 15 for thiswas, however, conceded by Shri Chagla and, in our opinion, rightly, that the new rules could not detract from or prejudicially affect the vested rights created under the oldd Rule 16, it may be recalled, prohibits the retrospective operation of the new rules with the object of protecting the interests of the employees. The submission that the old rules have neither been repealed, nor altered, as contemplated by Rule 16, and that the Registrar has merely withdrawn his approval to the old rules and enforced the new ones, does not advance the appellants case. The effect of old rule 16, in our opinion, cannot be negatived by describing the process as mere Withdrawal of the approval of the old rules and enforcement of the new ones,for in real substance the process seems to us to be covered by Rule | 0 | 1,444 | 799 | ### Instruction:
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of gratuity, but his claim in the present proceedings is for a further sum of Rupees 7,605.5. Gratuity Fund Rules were sanctioned by the Board of Directors of the appellant-Bank on August 17, 1957. They were framed under the Banks bye-laws. These rules (hereafter called old rules) were forwarded to the Registrar of Co-operative Societies for approval and they were approved with some modifications except Rules 6, 10, and 15 which were kept under consideration. The principal argument pressed before us by Shri Chagla was that Rules 6 and 10 having not been approved by the Registrar, all the old rules must be deemed to have remained inoperative because these two rules form the real substratum of the scheme embodied in those rules.Without these two rules, the remaining rules, according to the argument, cannot effectively operate. We are unable to accept this submission.6. It would be useful at this stage to reproduce old Rules 6, 7, 9, 10, 15 and 16 which alone are suggested on behalf of the appellant to be relevant."6. These Rules shall be deemed to have come into force (i.e. in respect of an employee retiring, resigning and/or having terminated his services) from the 1st July, 1953. Every employee who has completed at least five years service shall be granted gratuity at the rate specified herein.7. In case of retirement, resignation or termination of services gratuity shall be granted:(a) After five years but before completion of 10 years services:- half months salary for each completed year services.(b) After 10 years but before completion of 15 years service :- three-fourth of a months salary for each completed year of service.(c) After 15 years service :- three-fourth of a months salary for each completed year of service, subject to the minimum of fifteen salaries.8. * * * *9. Payment of the claims on account of the Gratuity payable under these Rules, shall be made within one month from the retirement, resignation, death or the termination of service.10. The Bank shall contribute on 30th June, every year or as soon as possible thereafter, but not later than 30th September of the year, an amount not less than the amount contributed by the Bank, as contribution to the Provident Fund.11 to 14. * * * *15. The provisions under Section 41 of the Bombay Co-operative Societies Act (Bombay Act VII of 1925) as amended up-to-date shall be applicable to the administration of the Gratuity Funds created under these Rules.16. The Board of Directors shall have powers, subject to the approval of the Registrar Co-operative Societies, Bombay State Poona, to alter, add to, or repeal these rules from time to time, provided however that no such alteration, addition or repeal shall have any retrospective effect against the interest of the employee in the employment of the Bank on that date."According to the appellants learned counsel, the Registrar having withheld approval of Rule 6, the last sentence of which provides that every employee who has completed at least 5 years service, shall be granted gratuity at the rate specified in the rules, there is no rule which imposes an obligation on the appellant-Bank to pay gratuity. This argument, in our opinion, ignores the express language of Rule 7 which, in unequivocal terms, requires gratuity to be granted in case of retirement, resignation or termination of service according to the rate specified therein. Clause (a) of this rule contains a provision similar in effect to what the last sentence of Rule 6 directs. Rule 9 also imposes an imperative obligation for the payment of gratuity under these rules within one month from the retirement, resignation, death or termination of service of the employee concerned. Rule 10, which provides for contribution of the Bank towards the Gratuity Fund, was no doubt also kept under consideration and not approved by the Joint Registrar, but this too, in our view, does not render the remaining rules ineffective; nor does this fact by itself absolve the Bank of the obligation imposed on it by Rules 7, 8 and 9. The contention that without there being a Gratuity Fund, the Bank cannot lawfully pay gratuity assumes that the Bank has no other resources out of which its liabilities under the Rules in question can be discharged - an assumption which is not easy to uphold.Once the Gratuity Fund Rules imposing an obligation on the Bank to pay gratuity to its employees are approved by the Registrar, then this obligation, in our opinion, cannot be rendered nugatory merely because there is no separate Gratuity Fund.Rule 15 which provides for the applicability of Section 41 of the Bombay Co-operative Societies Act VII of 1925 to the "administration of the Gratuity Fund" created under the rules in question, does not touch the question of the enforcement of these rules, and indeed even on behalf of the appellant, no attempt has been made to rely on Rule 15 for this purpose.7. The appellants counsel next relied on the new rules which were approved by the Joint Registrar of Co-operative Societies and were made retrospective in their operation so as to be enforceable with effect from July 1, 1953. It was, however, conceded by Shri Chagla and, in our opinion, rightly, that the new rules could not detract from or prejudicially affect the vested rights created under the old rules. Indeed old Rule 16, it may be recalled, prohibits the retrospective operation of the new rules with the object of protecting the interests of the employees. The submission that the old rules have neither been repealed, nor altered, as contemplated by Rule 16, and that the Registrar has merely withdrawn his approval to the old rules and enforced the new ones, does not advance the appellants case. The effect of old rule 16, in our opinion, cannot be negatived by describing the process as mere Withdrawal of the approval of the old rules and enforcement of the new ones,for in real substance the process seems to us to be covered by Rule 16.
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We are unable to accept thisargument, in our opinion, ignores the express language of Rule 7 which, in unequivocal terms, requires gratuity to be granted in case of retirement, resignation or termination of service according to the rate specifiedcontention that without there being a Gratuity Fund, the Bank cannot lawfully pay gratuity assumes that the Bank has no other resources out of which its liabilities under the Rules in question can be discharged - an assumption which is not easy to uphold.Once the Gratuity Fund Rules imposing an obligation on the Bank to pay gratuity to its employees are approved by the Registrar, then this obligation, in our opinion, cannot be rendered nugatory merely because there is no separate Gratuity Fund.Rule 15 which provides for the applicability of Section 41 of the Bombay Co-operative Societies Act VII of 1925 to the "administration of the Gratuity Fund" created under the rules in question, does not touch the question of the enforcement of these rules, and indeed even on behalf of the appellant, no attempt has been made to rely on Rule 15 for thisold Rule 16, it may be recalled, prohibits the retrospective operation of the new rules with the object of protecting the interests of the employees. The submission that the old rules have neither been repealed, nor altered, as contemplated by Rule 16, and that the Registrar has merely withdrawn his approval to the old rules and enforced the new ones, does not advance the appellants case. The effect of old rule 16, in our opinion, cannot be negatived by describing the process as mere Withdrawal of the approval of the old rules and enforcement of the new ones,for in real substance the process seems to us to be covered by Rule, in our opinion, ignores the express language of Rule 7 which, in unequivocal terms, requires gratuity to be granted in case of retirement, resignation or termination of service according to the rate specifiedtherein. Clause (a) of this rule contains a provision similar in effect to what the last sentence of Rule 6 directs. Rule 9 also imposes an imperative obligation for the payment of gratuity under these rules within one month from the retirement, resignation, death or termination of service of the employee concerned. Rule 10, which provides for contribution of the Bank towards the Gratuity Fund, was no doubt also kept under consideration and not approved by the Joint Registrar, but this too, in our view, does not render the remaining rules ineffective; nor does this fact by itself absolve the Bank of the obligation imposed on it by Rules 7, 8 and 9. Thecontention that without there being a Gratuity Fund, the Bank cannot lawfully pay gratuity assumes that the Bank has no other resources out of which its liabilities under the Rules in question can be dischargedan assumption which is not easy to uphold.Once the Gratuity Fund Rules imposing an obligation on the Bank to pay gratuity to its employees are approved by the Registrar, then this obligation, in our opinion, cannot be rendered nugatory merely because there is no separate Gratuity Fund.Rule 15 which provides for the applicability of Section 41 of the BombaySocieties Act VII of 1925 to the "administration of the Gratuity Fund" created under the rules in question, does not touch the question of the enforcement of these rules, and indeed even on behalf of the appellant, no attempt has been made to rely on Rule 15 for thiswas, however, conceded by Shri Chagla and, in our opinion, rightly, that the new rules could not detract from or prejudicially affect the vested rights created under the oldd Rule 16, it may be recalled, prohibits the retrospective operation of the new rules with the object of protecting the interests of the employees. The submission that the old rules have neither been repealed, nor altered, as contemplated by Rule 16, and that the Registrar has merely withdrawn his approval to the old rules and enforced the new ones, does not advance the appellants case. The effect of old rule 16, in our opinion, cannot be negatived by describing the process as mere Withdrawal of the approval of the old rules and enforcement of the new ones,for in real substance the process seems to us to be covered by Rule
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Mohd. Anwar Vs. The Oriental Insurance Company Ltd. and Ors | Abhay Manohar Sapre, J. 1. Leave granted. 2. These appeals arise from the final judgment and order dated 22.08.2017 passed by the High Court of Delhi at New Delhi in FAO No. 424 of 2016 whereby the Single Judge of the High Court allowed the appeal filed by Respondent No. 1 herein and set aside the order dated 06.05.2016 passed by the Employees Compensation Commissioner, Delhi by which the Commissioner partly allowed the claim petition filed by the Appellant herein. By order dated 11.09.2017, the High Court also dismissed the application bearing C.M. No. 32982 of 2017 in FAO 424/2016 filed by the Appellant herein for setting aside the judgment dated 22.08.2017. 3. These appeals involve a short point. Few facts need mention infra to appreciate the point. Facts are taken from the list of dates and SLP. 4. The Appellant herein is the Claimant. He was under the employment of Respondent No. 2 [M/s. Swati (sic. Swasti) Structure & Concretes], a company, on the post of Driver. He used to drive TATA Tipper vehicle bearing No. UK 08V 4577. 5. On 08.03.2013, the Appellant (Claimant), while on duty, met with an accident and sustained injuries on his body. The aforesaid accident occurred during the course of his employment and it also arose out of employment. The case of the Appellant is that the risks and rights of the parties were covered by the Insurance Policy and hence on that basis, the Appellant filed a claim petition under the Employees Compensation Act, 1923 before the Employees Compensation Commissioner at Delhi seeking compensation from his employer (Respondent No. 2) and Insurer (Respondent No. 1) for the injuries sustained by him in the accident. 6. The claim petition was contested by Respondent No. 2 (employer) and the Insurance Company (Respondent No. 1 herein) on various grounds on facts and the law. One of the objections raised by Respondent No. 1 was in relation to the territorial jurisdiction of the Court in filing the claim petition by the Claimant. 7. By order dated 06.05.2016 (Annexure-P-7), the claim petition was allowed in part by the Commissioner against both the Respondents herein and accordingly an award was passed against both the Respondents for a total sum of Rs. 8,70,576/- by way of compensation for the injuries sustained by the Appellant (Claimant). 8. Felt aggrieved by order dated 06.05.2016, Respondent No. 1, the Insurance Company filed appeal before the High Court. By impugned judgment, the Single Judge allowed the appeal, set aside the order of the Commissioner and dismissed the claim petition on the ground of lack of territorial jurisdiction. Since the impugned judgment was passed without hearing the Appellant herein (Respondent No. 1 before the High Court), he filed an application for setting aside the impugned judgment. By order dated 11.09.2017, the High Court dismissed the application. Aggrieved by the judgment/order dated 22.08.2017 and 11.09.2017, the Appellant (Claimant) felt aggrieved and filed these appeals by way of special leave in this Court. 9. Therefore, the short question, which arises for consideration in this appeal, is whether any case was made out by the Insurance Company before the High Court. 10. Heard Mr. R.K. Nain, learned Counsel for the Appellant and Mr. K.K. Bhat, learned Counsel for Respondent No. 1. 11. Having heard the learned Counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeals filed by the Claimant and while setting aside of the impugned judgment remand the case to the High Court for deciding the appeal filed by the Insurance company afresh in accordance with law. 12. In our opinion, the need to remand the case to the High Court has occasioned because the impugned judgment was passed by the High Court without hearing the Appellant herein (who was Respondent No. 1 in the appeal before the High Court). Indeed, this fact was not disputed. 13. It is true that the High Court was constrained to make strong observations against the Appellant (Claimant) on the manner in which he prosecuted his stand in the appeal before the High Court, yet having regard to the totality of the facts and circumstances arising in the case including the nature of the claim, the several issues involved therein and the grounds raised by the Insurance Company in their appeal leveling serious allegations against the Appellant (Claimant) and few others which also found acceptance to the High Court, we are of the considered opinion that an opportunity of hearing, in the interest of justice, needs to be given to the Appellant before the High Court to contest the appeal filed by the Insurance Company. | 1[ds]11. Having heard the learned Counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeals filed by the Claimant and while setting aside of the impugned judgment remand the case to the High Court for deciding the appeal filed by the Insurance company afresh in accordance with law12. In our opinion, the need to remand the case to the High Court has occasioned because the impugned judgment was passed by the High Court without hearing the Appellant herein (who was Respondent No. 1 in the appeal before the High Court). Indeed, this fact was not disputed13. It is true that the High Court was constrained to make strong observations against the Appellant (Claimant) on the manner in which he prosecuted his stand in the appeal before the High Court, yet having regard to the totality of the facts and circumstances arising in the case including the nature of the claim, the several issues involved therein and the grounds raised by the Insurance Company in their appeal leveling serious allegations against the Appellant (Claimant) and few others which also found acceptance to the High Court, we are of the considered opinion that an opportunity of hearing, in the interest of justice, needs to be given to the Appellant before the High Court to contest the appeal filed by the Insurance Company. | 1 | 894 | 254 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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Abhay Manohar Sapre, J. 1. Leave granted. 2. These appeals arise from the final judgment and order dated 22.08.2017 passed by the High Court of Delhi at New Delhi in FAO No. 424 of 2016 whereby the Single Judge of the High Court allowed the appeal filed by Respondent No. 1 herein and set aside the order dated 06.05.2016 passed by the Employees Compensation Commissioner, Delhi by which the Commissioner partly allowed the claim petition filed by the Appellant herein. By order dated 11.09.2017, the High Court also dismissed the application bearing C.M. No. 32982 of 2017 in FAO 424/2016 filed by the Appellant herein for setting aside the judgment dated 22.08.2017. 3. These appeals involve a short point. Few facts need mention infra to appreciate the point. Facts are taken from the list of dates and SLP. 4. The Appellant herein is the Claimant. He was under the employment of Respondent No. 2 [M/s. Swati (sic. Swasti) Structure & Concretes], a company, on the post of Driver. He used to drive TATA Tipper vehicle bearing No. UK 08V 4577. 5. On 08.03.2013, the Appellant (Claimant), while on duty, met with an accident and sustained injuries on his body. The aforesaid accident occurred during the course of his employment and it also arose out of employment. The case of the Appellant is that the risks and rights of the parties were covered by the Insurance Policy and hence on that basis, the Appellant filed a claim petition under the Employees Compensation Act, 1923 before the Employees Compensation Commissioner at Delhi seeking compensation from his employer (Respondent No. 2) and Insurer (Respondent No. 1) for the injuries sustained by him in the accident. 6. The claim petition was contested by Respondent No. 2 (employer) and the Insurance Company (Respondent No. 1 herein) on various grounds on facts and the law. One of the objections raised by Respondent No. 1 was in relation to the territorial jurisdiction of the Court in filing the claim petition by the Claimant. 7. By order dated 06.05.2016 (Annexure-P-7), the claim petition was allowed in part by the Commissioner against both the Respondents herein and accordingly an award was passed against both the Respondents for a total sum of Rs. 8,70,576/- by way of compensation for the injuries sustained by the Appellant (Claimant). 8. Felt aggrieved by order dated 06.05.2016, Respondent No. 1, the Insurance Company filed appeal before the High Court. By impugned judgment, the Single Judge allowed the appeal, set aside the order of the Commissioner and dismissed the claim petition on the ground of lack of territorial jurisdiction. Since the impugned judgment was passed without hearing the Appellant herein (Respondent No. 1 before the High Court), he filed an application for setting aside the impugned judgment. By order dated 11.09.2017, the High Court dismissed the application. Aggrieved by the judgment/order dated 22.08.2017 and 11.09.2017, the Appellant (Claimant) felt aggrieved and filed these appeals by way of special leave in this Court. 9. Therefore, the short question, which arises for consideration in this appeal, is whether any case was made out by the Insurance Company before the High Court. 10. Heard Mr. R.K. Nain, learned Counsel for the Appellant and Mr. K.K. Bhat, learned Counsel for Respondent No. 1. 11. Having heard the learned Counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeals filed by the Claimant and while setting aside of the impugned judgment remand the case to the High Court for deciding the appeal filed by the Insurance company afresh in accordance with law. 12. In our opinion, the need to remand the case to the High Court has occasioned because the impugned judgment was passed by the High Court without hearing the Appellant herein (who was Respondent No. 1 in the appeal before the High Court). Indeed, this fact was not disputed. 13. It is true that the High Court was constrained to make strong observations against the Appellant (Claimant) on the manner in which he prosecuted his stand in the appeal before the High Court, yet having regard to the totality of the facts and circumstances arising in the case including the nature of the claim, the several issues involved therein and the grounds raised by the Insurance Company in their appeal leveling serious allegations against the Appellant (Claimant) and few others which also found acceptance to the High Court, we are of the considered opinion that an opportunity of hearing, in the interest of justice, needs to be given to the Appellant before the High Court to contest the appeal filed by the Insurance Company.
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11. Having heard the learned Counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeals filed by the Claimant and while setting aside of the impugned judgment remand the case to the High Court for deciding the appeal filed by the Insurance company afresh in accordance with law12. In our opinion, the need to remand the case to the High Court has occasioned because the impugned judgment was passed by the High Court without hearing the Appellant herein (who was Respondent No. 1 in the appeal before the High Court). Indeed, this fact was not disputed13. It is true that the High Court was constrained to make strong observations against the Appellant (Claimant) on the manner in which he prosecuted his stand in the appeal before the High Court, yet having regard to the totality of the facts and circumstances arising in the case including the nature of the claim, the several issues involved therein and the grounds raised by the Insurance Company in their appeal leveling serious allegations against the Appellant (Claimant) and few others which also found acceptance to the High Court, we are of the considered opinion that an opportunity of hearing, in the interest of justice, needs to be given to the Appellant before the High Court to contest the appeal filed by the Insurance Company.
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Sivakumar Vs. State By Inspector Of Police | shown, has been conferred with any power of a Magistrate by reason of the provisions of the Code of Criminal Procedure or otherwise. It has also not been shown that he exercises any judicial or quasi-judicial function. Indisputably he has no role to play in the matter of an investigation in a criminal case. 39. The Village Magistrates evidently, under the new Code of Criminal Procedure, are not empowered to record any confession or statement either in terms of Section 162 or Section 164 of the Code of Criminal Procedure. 40. For all intent and purport, therefore, Rule 72 of the Criminal Rules of Practices has become redundant and nugatory, logical corollary whereof would be that there does not exist any embargo for an accused person to make an extra-judicial confession before a Village Administrative Officer. 41. We do not, thus, see any reason as to why such an extra-judicial confession could not be made before a Village Administrative Officer. With a view to exclude the admissibility of the confession made before a person, he must be a police officer. A village Administrative Officer does not answer the descriptions. While carrying out his duty to inform the Police or the magistrate in terms of Section 40 of the Code, the village headman does not act as a public servant removable only by or with the sanction of the local government nor he acts in his capacity as Magistrate. (See Pregada Balanagu vs. Krosuru Kotayya, AIR 1937 Mad. 578 ). 42. We, for the reasons stated hereinbefore, are of the opinion that the extra-judicial confession by the Appellant before the Village Administrative Officer was not inadmissible and, thus, could be relied upon. 43. In Mohan Lal Pangasa vs. The State of U.P. (AIR 1974 SC 1144 ), whereupon Mr. Sampath placed strong reliance, this Court held: "3. It is true that there are no direct witnesses to the actual murder. Even so, an impressive array of telling circumstances has, according to the Courts below, convincingly shown the accused to be guilty. Men are convicted not merely on direct evidence alone but also on circumstantial testimony. In the present case, the accused was the person last seen with the deceased; his conduct of running away when challenged and chased and crouching underneath a bogie when the Rakshaks were about to run him down, his wearing clothes which were bloodstained, the recovery of the knife, Ex. 1, from his trouser pocket and his conduct in telling the Rakshaks that he murdered his companion are too overwhelming for any possible inference of innocence. Moreover, the accused led the police party to the discovery of the dead body which also has an incriminating impact." 44. The said decision, thus, instead of assisting the Appellant supports the Prosecution. 45. In Mujeeb and another vs. State of Kerala (AIR 2000 SC 591 ), whereupon again Mr. Sampath relied, the prosecution failed to prove even the circumstances pointed out to the guilt of the Appellant. 46. Extra-judicial confession may or may not be a weak evidence. Each case is required to be examined on its own fact. In Sidharth etc. etc. vs. State of Bihar (JT 2005(12) SC 310 ), a Division Bench of this Court held: ".. He had also made extra-judicial confession to PW-8 Arko Pratim Banerjee. The confession made by appellant Arnit Das was not under any inducement, threat or promise and is voluntary in nature. Therefore, it is perfectly admissible under the Evidence Act.." 47. In Piara Singh and Others vs. State of Punjab (1977) 4 SCC 452 ), this Court observed: "... The learned Sessions Judge regarded the extra judicial confession to be a very weak type of evidence and therefore, refused to rely on the same. Here the learned Sessions Judge committed a clear error of law. Law does not require that the evidence of an extra judicial confession should in all cases be corroborated. In the instant case, the extra judicial confession was proved by an independent witness who was a responsible officer and who bore no animus against the appellants. There was hardly any justification for the Sessions Judge to disbelieve the evidence of Balbir Singh particularly when the extra judicial confession was corroborated by the recovery of an empty from the place of occurrence ." 48. Yet again in State of Rajasthan vs. Raja Ram (2003) 8 SCC 180 ) it was stated: "19. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other facts. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereof if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility." (Emphasis supplied) | 1[ds]10. PW-1 in his deposition categorically stated that he had seen the Appellant, the deceased and Ravikumar going together on the road at about 11.00 a.m. He, of course, stated that he was not aware as to where they had been going which shows his truthfulness, but the fact that the deceased was last seen with the Appellant is not in dispute11. He is a natural witness in the sense that when he was informed that the body of the deceased was lying near the tea shop of Rathinammal, he went there with PW-2. He had at that time no reason to suspect any person for commission of the crime. He, therefore, did not raise any finger of suspicion against the Appellant as a result whereof the case under Section 174 of the Indian Penal Code came to be registered. Contention of Mr. Sampath is that he is his first statement before the police did not allege about the presence of the pellets on the chest of the deceased, is not very material for the purpose of this case12. PW-2 also appears to be a truthful witness He also stated that he did not know the reason of death of his elder brother. He as well as PW-1 admitted that the deceased used to consume liquor13. PW-3 deposed to the effect that the deceased and the Appellant were close friends and they used to go together very often. The evidence of PW-3 was also not material except for the fact that he stated that the deceased and the Appellant used to go out frequently18. Contention of Mr. Sampath is that the air gun was received in two parts, namely, wooden part and iron part separately and, thus, the evidence of PW-9 should not be reliedupon.We do not see any reason to accept the said contention because for the purpose of carrying out tests in the forensic laboratory, the iron part of the gun was material20. In view of the aforementioned statement of PW-11, we are of the opinion that non-recovery of the pellets from the body of the deceased during post mortem examination was not very material so as to discredit the entire prosecution case22. The ownership of the air gun was not necessary to be proved. Recovery of the said air gun was made at the instance of the accused in terms ofSection 27 of the Indian Penal Code.When the possession of the air gun and recovery thereof had been proved, in our opinion, ownership takes a back seat23. Submission of Mr. Sampath that in view of Rule 72 of the Criminal Rules of Practice, PW.5 had no jurisdiction to record the extra-judicial confession of the Appellant deserves some consideration30. In re Lakshmanan (supra), therefore, a law has been laid down to the effect that a village headman is not a magistrate under the Code of Criminal Procedure. We, however, for the reasons stated hereinafter, do not agree that although Rule 72 of the Criminal Rules of Practice, has, for all intent and purport, become otiose, still the principle laid down therein that a confession before a village headman should not be relied upon as a matter of practice39. The Village Magistrates evidently, under the new Code of Criminal Procedure, are not empowered to record any confession or statement either in terms of Section 162 or Section 164 of the Code of Criminal Procedure40. For all intent and purport, therefore, Rule 72 of the Criminal Rules of Practices has become redundant and nugatory, logical corollary whereof would be that there does not exist any embargo for an accused person to make an extra-judicial confession before a Village Administrative Officer41. We do not, thus, see any reason as to why such an extra-judicial confession could not be made before a Village Administrative Officer. With a view to exclude the admissibility of the confession made before a person, he must be a police officer. A village Administrative Officer does not answer the descriptions. While carrying out his duty to inform the Police or the magistrate in terms of Section 40 of the Code, the village headman does not act as a public servant removable only by or with the sanction of the local government nor he acts in his capacity as Magistrate. | 1 | 5,208 | 776 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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shown, has been conferred with any power of a Magistrate by reason of the provisions of the Code of Criminal Procedure or otherwise. It has also not been shown that he exercises any judicial or quasi-judicial function. Indisputably he has no role to play in the matter of an investigation in a criminal case. 39. The Village Magistrates evidently, under the new Code of Criminal Procedure, are not empowered to record any confession or statement either in terms of Section 162 or Section 164 of the Code of Criminal Procedure. 40. For all intent and purport, therefore, Rule 72 of the Criminal Rules of Practices has become redundant and nugatory, logical corollary whereof would be that there does not exist any embargo for an accused person to make an extra-judicial confession before a Village Administrative Officer. 41. We do not, thus, see any reason as to why such an extra-judicial confession could not be made before a Village Administrative Officer. With a view to exclude the admissibility of the confession made before a person, he must be a police officer. A village Administrative Officer does not answer the descriptions. While carrying out his duty to inform the Police or the magistrate in terms of Section 40 of the Code, the village headman does not act as a public servant removable only by or with the sanction of the local government nor he acts in his capacity as Magistrate. (See Pregada Balanagu vs. Krosuru Kotayya, AIR 1937 Mad. 578 ). 42. We, for the reasons stated hereinbefore, are of the opinion that the extra-judicial confession by the Appellant before the Village Administrative Officer was not inadmissible and, thus, could be relied upon. 43. In Mohan Lal Pangasa vs. The State of U.P. (AIR 1974 SC 1144 ), whereupon Mr. Sampath placed strong reliance, this Court held: "3. It is true that there are no direct witnesses to the actual murder. Even so, an impressive array of telling circumstances has, according to the Courts below, convincingly shown the accused to be guilty. Men are convicted not merely on direct evidence alone but also on circumstantial testimony. In the present case, the accused was the person last seen with the deceased; his conduct of running away when challenged and chased and crouching underneath a bogie when the Rakshaks were about to run him down, his wearing clothes which were bloodstained, the recovery of the knife, Ex. 1, from his trouser pocket and his conduct in telling the Rakshaks that he murdered his companion are too overwhelming for any possible inference of innocence. Moreover, the accused led the police party to the discovery of the dead body which also has an incriminating impact." 44. The said decision, thus, instead of assisting the Appellant supports the Prosecution. 45. In Mujeeb and another vs. State of Kerala (AIR 2000 SC 591 ), whereupon again Mr. Sampath relied, the prosecution failed to prove even the circumstances pointed out to the guilt of the Appellant. 46. Extra-judicial confession may or may not be a weak evidence. Each case is required to be examined on its own fact. In Sidharth etc. etc. vs. State of Bihar (JT 2005(12) SC 310 ), a Division Bench of this Court held: ".. He had also made extra-judicial confession to PW-8 Arko Pratim Banerjee. The confession made by appellant Arnit Das was not under any inducement, threat or promise and is voluntary in nature. Therefore, it is perfectly admissible under the Evidence Act.." 47. In Piara Singh and Others vs. State of Punjab (1977) 4 SCC 452 ), this Court observed: "... The learned Sessions Judge regarded the extra judicial confession to be a very weak type of evidence and therefore, refused to rely on the same. Here the learned Sessions Judge committed a clear error of law. Law does not require that the evidence of an extra judicial confession should in all cases be corroborated. In the instant case, the extra judicial confession was proved by an independent witness who was a responsible officer and who bore no animus against the appellants. There was hardly any justification for the Sessions Judge to disbelieve the evidence of Balbir Singh particularly when the extra judicial confession was corroborated by the recovery of an empty from the place of occurrence ." 48. Yet again in State of Rajasthan vs. Raja Ram (2003) 8 SCC 180 ) it was stated: "19. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other facts. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereof if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility." (Emphasis supplied)
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10. PW-1 in his deposition categorically stated that he had seen the Appellant, the deceased and Ravikumar going together on the road at about 11.00 a.m. He, of course, stated that he was not aware as to where they had been going which shows his truthfulness, but the fact that the deceased was last seen with the Appellant is not in dispute11. He is a natural witness in the sense that when he was informed that the body of the deceased was lying near the tea shop of Rathinammal, he went there with PW-2. He had at that time no reason to suspect any person for commission of the crime. He, therefore, did not raise any finger of suspicion against the Appellant as a result whereof the case under Section 174 of the Indian Penal Code came to be registered. Contention of Mr. Sampath is that he is his first statement before the police did not allege about the presence of the pellets on the chest of the deceased, is not very material for the purpose of this case12. PW-2 also appears to be a truthful witness He also stated that he did not know the reason of death of his elder brother. He as well as PW-1 admitted that the deceased used to consume liquor13. PW-3 deposed to the effect that the deceased and the Appellant were close friends and they used to go together very often. The evidence of PW-3 was also not material except for the fact that he stated that the deceased and the Appellant used to go out frequently18. Contention of Mr. Sampath is that the air gun was received in two parts, namely, wooden part and iron part separately and, thus, the evidence of PW-9 should not be reliedupon.We do not see any reason to accept the said contention because for the purpose of carrying out tests in the forensic laboratory, the iron part of the gun was material20. In view of the aforementioned statement of PW-11, we are of the opinion that non-recovery of the pellets from the body of the deceased during post mortem examination was not very material so as to discredit the entire prosecution case22. The ownership of the air gun was not necessary to be proved. Recovery of the said air gun was made at the instance of the accused in terms ofSection 27 of the Indian Penal Code.When the possession of the air gun and recovery thereof had been proved, in our opinion, ownership takes a back seat23. Submission of Mr. Sampath that in view of Rule 72 of the Criminal Rules of Practice, PW.5 had no jurisdiction to record the extra-judicial confession of the Appellant deserves some consideration30. In re Lakshmanan (supra), therefore, a law has been laid down to the effect that a village headman is not a magistrate under the Code of Criminal Procedure. We, however, for the reasons stated hereinafter, do not agree that although Rule 72 of the Criminal Rules of Practice, has, for all intent and purport, become otiose, still the principle laid down therein that a confession before a village headman should not be relied upon as a matter of practice39. The Village Magistrates evidently, under the new Code of Criminal Procedure, are not empowered to record any confession or statement either in terms of Section 162 or Section 164 of the Code of Criminal Procedure40. For all intent and purport, therefore, Rule 72 of the Criminal Rules of Practices has become redundant and nugatory, logical corollary whereof would be that there does not exist any embargo for an accused person to make an extra-judicial confession before a Village Administrative Officer41. We do not, thus, see any reason as to why such an extra-judicial confession could not be made before a Village Administrative Officer. With a view to exclude the admissibility of the confession made before a person, he must be a police officer. A village Administrative Officer does not answer the descriptions. While carrying out his duty to inform the Police or the magistrate in terms of Section 40 of the Code, the village headman does not act as a public servant removable only by or with the sanction of the local government nor he acts in his capacity as Magistrate.
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Cumbum Roadways (P) Ltd Vs. Somu Transport (P) Ltd. And Others | then contends that even so the Appellate Tribunal should have been asked to consider the cases of the appellant and the respondent only on remand and the Appeal Court was not right in ordering the Appellate Tribunal to consider all the appeals afresh. It is true that generally the Appellate Tribunal deals with all appeals relating to one route by one order. It is also true that before the decision of this Court the Appellate Tribunals were generally influenced by the Government Order in question. There is therefore some force in the observation of the Appeal Court that where the disposal of appeals has been found to have departed from known principles of judicial procedure all the appeals disposed of by one order should be revived. But there is one serious difficulty in accepting this view of the Appeal Court. Even though all the appeals with respect to one route may have been disposed of by a single appellate order in form, in reality the appellate order consists of as many orders as there are appeals disposed of thereby. 6. In this very case there were seven appeals before the Appellate Tribunal and the order says that the appeal of the appellant alone was allowed while the other appeals were dismissed. Now if none of the parties concerned in the seven appeals had come to the High Court in writ proceedings within a reasonable time, the order of the Appellate Tribunal would have become final, even though it might have been influenced by the Government Order in question. Therefore there seems to be no reason why when only one party brought the matter before the High Court by way of writ proceedings against another party, and the appellants in the other six appeals were content with the order passed by the Appellate Tribunal, the High Court should interfere in favour of those persons also who had not thought fit to challenge the order of the Appellate Tribunal. On principle therefore it does not appear right that the High Court should set aside orders in appeal passed by the Appellate Tribunal when the parties to those appeals do not bring up the matter before the High Court, simply because as a matter of convenience the Appellate Tribunal deals with all the appeals relating to one route by a consolidated order. Therefore, we are of opinion that the remand should only be confined to those parties which came to the High Court and not extend to others, as the High Court would have no jurisdiction to interfere with the orders of the Appellate Tribunal either in favour of or against the parties which have not come to it. In the circumstances the order of the Appeal Court will have to be modified and the remand confined to a reconsideration of the appeal of the present appellant alone as against the claims of the respondent, and the Appellate Tribunal should decide between these two only who should be granted the permit for the route in question. 7. Turning now to appeal No. 907, we find that the permit was granted by the Transport Authority to respondent No. 1 out of 32 applicants. Ten of the applicants appealed before the Appellate Tribunal. Of these, the appeal of the present appellant was allowed and the order of the Transport Authority granting the permit to the respondent was set aside and the permit was granted to the appellant instead. The respondent filed a writ petition before the High Court against the order of the Appellate Tribunal. The learned Single Judge quashed the order of the Appellate Tribunal and remanded the matter for disposal of the appeal in question afresh. This order of the learned Single Judge was taken in appeal by the present appellant and the appeal was heard by a Full Bench. It appears that a new ground was urged before the Appellate Tribunal with respect to the respondent being a benamidar of Aruppukottai Sri Jaya Vilas (P) Limited, and that was taken into consideration by the Appellate Tribunal. The Appeal Court set aside the view of the learned Single Judge with respect to this. But it remitted the matter to the Appellate Tribunal for fresh disposal in view of the decision of this Court in Rajagopala Naidus case. It is not clear whether the Appeal Court intended by its order that all the appeals before the Appellate Tribunal should be revived and re-heard; but this is how apparently the order has been interpreted. In view of our decision in C. A. 363 we order that when the matter is re-heard by the Appellate Tribunal, it shall confine itself to the case of the appellant and respondent No. 1 before us and not consider the cases of other appellants before it who had not gone to the High Court against the Appellate Tribunals order. We however express no opinion on the new ground which was raised before the Appellate Tribunal as to the question of benami and that matter may have to be considered after the fresh decision of the Appellate Tribunal. 8. We now come to appeal No. 150. It appears that there were two writ petitions before the High Court. They grave rise to two appeals. The appeal before us is only from one of the appeals, in which the present appellant was the appellant and the present respondent No. 1 was respondent No. 1. The appeals failed before the Appeal Court in view of the decision of this Court in Rajagopala Naidus case, 1964-7 SCR 1 : (AIR 1964 SC 1573 ).The only point raised before us is whether the order of the High Court reviving other appeals before the Appellate Tribunal besides the two between the parties which went to the High Court is correct. In view of our decision in appeal No. 363 the reconsideration before the Appellate Tribunal will only be confined to the parties which went to the High Court in writ proceedings and the respondents therein. 9. | 1[ds]was plainly influenced by the Government Order when it dealt with the appeals before it and this cannot be said to be a case where the decision of the Appellate Tribunal was not influenced by the Government Order in question. A perusal of the order of the Appellate Tribunal shows that it considered the various aspects which were mentioned in the Government Order in question. It had even referred in some of the appeals to the marks obtained by various operators. In these circumstances it cannot be said that the Appellate Tribunal was not influenced by the Government Order in question. We also see no force in the contention that as the respondent had relied on the Government Order it was not open to it to urge in the High Court that the Government Order was bad. Before the decision of this Court, referred to above, the Government Order had always been relied upon by applicants for permits. That is no reason for holding that the respondent was barred from raising the question that the Government Order was bade after the decision of this CourtIt is true that in Rajagopala Naidus case, 1964-7 SCR 1 : (AIR 1964 SC 1573 ), this Court had ordered that the matter be remanded to the Transport Authority and not to the Appellate Tribunal. That however does not mean that in every case where there has to be a remand it must be to the original authority which has the power to grant the permit. As the Appeal Court has pointed out there may be serious public inconvenience specially in the matter of new routes if the order of the Transport Authority is also set aside with the result that such new routes would be without any transport facility. It is therefore always a question to be decided in each case whether the remand should be to the Appellate Tribunal or the Transport Authority. We agree with the Appeal Court that in most cases it would be proper if the remand is made to the Appellate Tribunal to consider the appeals before it without being influenced by the Government Order in questionThere is therefore some force in the observation of the Appeal Court that where the disposal of appeals has been found to have departed from known principles of judicial procedure all the appeals disposed of by one order should be revived. But there is one serious difficulty in accepting this view of the Appeal Court. Even though all the appeals with respect to one route may have been disposed of by a single appellate order in form, in reality the appellate order consists of as many orders as there are appeals disposed of thereby.In this very case there were seven appeals before the Appellate Tribunal and the order says that the appeal of the appellant alone was allowed while the other appeals were dismissed. Now if none of the parties concerned in the seven appeals had come to the High Court in writ proceedings within a reasonable time, the order of the Appellate Tribunal would have become final, even though it might have been influenced by the Government Order in question. Therefore there seems to be no reason why when only one party brought the matter before the High Court by way of writ proceedings against another party, and the appellants in the other six appeals were content with the order passed by the Appellate Tribunal, the High Court should interfere in favour of those persons also who had not thought fit to challenge the order of the Appellate Tribunal. On principle therefore it does not appear right that the High Court should set aside orders in appeal passed by the Appellate Tribunal when the parties to those appeals do not bring up the matter before the High Court, simply because as a matter of convenience the Appellate Tribunal deals with all the appeals relating to one route by a consolidated order. Therefore, we are of opinion that the remand should only be confined to those parties which came to the High Court and not extend to others, as the High Court would have no jurisdiction to interfere with the orders of the Appellate Tribunal either in favour of or against the parties which have not come to it. In the circumstances the order of the Appeal Court will have to be modified and the remand confined to a reconsideration of the appeal of the present appellant alone as against the claims of the respondent, and the Appellate Tribunal should decide between these two only who should be granted the permit for the route in questionIt is not clear whether the Appeal Court intended by its order that all the appeals before the Appellate Tribunal should be revived and re-heard; but this is how apparently the order has been interpreted. In view of our decision in C. A. 363 we order that when the matter is re-heard by the Appellate Tribunal, it shall confine itself to the case of the appellant and respondent No. 1 before us and not consider the cases of other appellants before it who had not gone to the High Court against the Appellate Tribunals order. We however express no opinion on the new ground which was raised before the Appellate Tribunal as to the question of benami and that matter may have to be considered after the fresh decision of the Appellate TribunalWe now come to appeal No. 150. It appears that there were two writ petitions before the High Court. They grave rise to two appeals. The appeal before us is only from one of the appeals, in which the present appellant was the appellant and the present respondent No. 1 was respondent No. 1. The appeals failed before the Appeal Court in view of the decision of this Court in Rajagopala Naidus case, 1964-7 SCR 1 : (AIR 1964 SC 1573 ).The only point raised before us iswhether the order of the High Court reviving other appeals before the Appellate Tribunal besides the two between the parties which went to the High Court is correct.In view of our decision in appeal No. 363 the reconsideration before the Appellate Tribunal will only be confined to the parties which went to the High Court in writ proceedings and the respondents therein. | 1 | 2,575 | 1,109 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
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then contends that even so the Appellate Tribunal should have been asked to consider the cases of the appellant and the respondent only on remand and the Appeal Court was not right in ordering the Appellate Tribunal to consider all the appeals afresh. It is true that generally the Appellate Tribunal deals with all appeals relating to one route by one order. It is also true that before the decision of this Court the Appellate Tribunals were generally influenced by the Government Order in question. There is therefore some force in the observation of the Appeal Court that where the disposal of appeals has been found to have departed from known principles of judicial procedure all the appeals disposed of by one order should be revived. But there is one serious difficulty in accepting this view of the Appeal Court. Even though all the appeals with respect to one route may have been disposed of by a single appellate order in form, in reality the appellate order consists of as many orders as there are appeals disposed of thereby. 6. In this very case there were seven appeals before the Appellate Tribunal and the order says that the appeal of the appellant alone was allowed while the other appeals were dismissed. Now if none of the parties concerned in the seven appeals had come to the High Court in writ proceedings within a reasonable time, the order of the Appellate Tribunal would have become final, even though it might have been influenced by the Government Order in question. Therefore there seems to be no reason why when only one party brought the matter before the High Court by way of writ proceedings against another party, and the appellants in the other six appeals were content with the order passed by the Appellate Tribunal, the High Court should interfere in favour of those persons also who had not thought fit to challenge the order of the Appellate Tribunal. On principle therefore it does not appear right that the High Court should set aside orders in appeal passed by the Appellate Tribunal when the parties to those appeals do not bring up the matter before the High Court, simply because as a matter of convenience the Appellate Tribunal deals with all the appeals relating to one route by a consolidated order. Therefore, we are of opinion that the remand should only be confined to those parties which came to the High Court and not extend to others, as the High Court would have no jurisdiction to interfere with the orders of the Appellate Tribunal either in favour of or against the parties which have not come to it. In the circumstances the order of the Appeal Court will have to be modified and the remand confined to a reconsideration of the appeal of the present appellant alone as against the claims of the respondent, and the Appellate Tribunal should decide between these two only who should be granted the permit for the route in question. 7. Turning now to appeal No. 907, we find that the permit was granted by the Transport Authority to respondent No. 1 out of 32 applicants. Ten of the applicants appealed before the Appellate Tribunal. Of these, the appeal of the present appellant was allowed and the order of the Transport Authority granting the permit to the respondent was set aside and the permit was granted to the appellant instead. The respondent filed a writ petition before the High Court against the order of the Appellate Tribunal. The learned Single Judge quashed the order of the Appellate Tribunal and remanded the matter for disposal of the appeal in question afresh. This order of the learned Single Judge was taken in appeal by the present appellant and the appeal was heard by a Full Bench. It appears that a new ground was urged before the Appellate Tribunal with respect to the respondent being a benamidar of Aruppukottai Sri Jaya Vilas (P) Limited, and that was taken into consideration by the Appellate Tribunal. The Appeal Court set aside the view of the learned Single Judge with respect to this. But it remitted the matter to the Appellate Tribunal for fresh disposal in view of the decision of this Court in Rajagopala Naidus case. It is not clear whether the Appeal Court intended by its order that all the appeals before the Appellate Tribunal should be revived and re-heard; but this is how apparently the order has been interpreted. In view of our decision in C. A. 363 we order that when the matter is re-heard by the Appellate Tribunal, it shall confine itself to the case of the appellant and respondent No. 1 before us and not consider the cases of other appellants before it who had not gone to the High Court against the Appellate Tribunals order. We however express no opinion on the new ground which was raised before the Appellate Tribunal as to the question of benami and that matter may have to be considered after the fresh decision of the Appellate Tribunal. 8. We now come to appeal No. 150. It appears that there were two writ petitions before the High Court. They grave rise to two appeals. The appeal before us is only from one of the appeals, in which the present appellant was the appellant and the present respondent No. 1 was respondent No. 1. The appeals failed before the Appeal Court in view of the decision of this Court in Rajagopala Naidus case, 1964-7 SCR 1 : (AIR 1964 SC 1573 ).The only point raised before us is whether the order of the High Court reviving other appeals before the Appellate Tribunal besides the two between the parties which went to the High Court is correct. In view of our decision in appeal No. 363 the reconsideration before the Appellate Tribunal will only be confined to the parties which went to the High Court in writ proceedings and the respondents therein. 9.
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the various aspects which were mentioned in the Government Order in question. It had even referred in some of the appeals to the marks obtained by various operators. In these circumstances it cannot be said that the Appellate Tribunal was not influenced by the Government Order in question. We also see no force in the contention that as the respondent had relied on the Government Order it was not open to it to urge in the High Court that the Government Order was bad. Before the decision of this Court, referred to above, the Government Order had always been relied upon by applicants for permits. That is no reason for holding that the respondent was barred from raising the question that the Government Order was bade after the decision of this CourtIt is true that in Rajagopala Naidus case, 1964-7 SCR 1 : (AIR 1964 SC 1573 ), this Court had ordered that the matter be remanded to the Transport Authority and not to the Appellate Tribunal. That however does not mean that in every case where there has to be a remand it must be to the original authority which has the power to grant the permit. As the Appeal Court has pointed out there may be serious public inconvenience specially in the matter of new routes if the order of the Transport Authority is also set aside with the result that such new routes would be without any transport facility. It is therefore always a question to be decided in each case whether the remand should be to the Appellate Tribunal or the Transport Authority. We agree with the Appeal Court that in most cases it would be proper if the remand is made to the Appellate Tribunal to consider the appeals before it without being influenced by the Government Order in questionThere is therefore some force in the observation of the Appeal Court that where the disposal of appeals has been found to have departed from known principles of judicial procedure all the appeals disposed of by one order should be revived. But there is one serious difficulty in accepting this view of the Appeal Court. Even though all the appeals with respect to one route may have been disposed of by a single appellate order in form, in reality the appellate order consists of as many orders as there are appeals disposed of thereby.In this very case there were seven appeals before the Appellate Tribunal and the order says that the appeal of the appellant alone was allowed while the other appeals were dismissed. Now if none of the parties concerned in the seven appeals had come to the High Court in writ proceedings within a reasonable time, the order of the Appellate Tribunal would have become final, even though it might have been influenced by the Government Order in question. Therefore there seems to be no reason why when only one party brought the matter before the High Court by way of writ proceedings against another party, and the appellants in the other six appeals were content with the order passed by the Appellate Tribunal, the High Court should interfere in favour of those persons also who had not thought fit to challenge the order of the Appellate Tribunal. On principle therefore it does not appear right that the High Court should set aside orders in appeal passed by the Appellate Tribunal when the parties to those appeals do not bring up the matter before the High Court, simply because as a matter of convenience the Appellate Tribunal deals with all the appeals relating to one route by a consolidated order. Therefore, we are of opinion that the remand should only be confined to those parties which came to the High Court and not extend to others, as the High Court would have no jurisdiction to interfere with the orders of the Appellate Tribunal either in favour of or against the parties which have not come to it. In the circumstances the order of the Appeal Court will have to be modified and the remand confined to a reconsideration of the appeal of the present appellant alone as against the claims of the respondent, and the Appellate Tribunal should decide between these two only who should be granted the permit for the route in questionIt is not clear whether the Appeal Court intended by its order that all the appeals before the Appellate Tribunal should be revived and re-heard; but this is how apparently the order has been interpreted. In view of our decision in C. A. 363 we order that when the matter is re-heard by the Appellate Tribunal, it shall confine itself to the case of the appellant and respondent No. 1 before us and not consider the cases of other appellants before it who had not gone to the High Court against the Appellate Tribunals order. We however express no opinion on the new ground which was raised before the Appellate Tribunal as to the question of benami and that matter may have to be considered after the fresh decision of the Appellate TribunalWe now come to appeal No. 150. It appears that there were two writ petitions before the High Court. They grave rise to two appeals. The appeal before us is only from one of the appeals, in which the present appellant was the appellant and the present respondent No. 1 was respondent No. 1. The appeals failed before the Appeal Court in view of the decision of this Court in Rajagopala Naidus case, 1964-7 SCR 1 : (AIR 1964 SC 1573 ).The only point raised before us iswhether the order of the High Court reviving other appeals before the Appellate Tribunal besides the two between the parties which went to the High Court is correct.In view of our decision in appeal No. 363 the reconsideration before the Appellate Tribunal will only be confined to the parties which went to the High Court in writ proceedings and the respondents therein.
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Bilakchand Gyanchand Company Vs. A. Chinnaswamy | Leave granted.Six cheques were issued in favour of the appellant herein. The cheques were signed by A. Chinnaswami, Managing Director of Shakti Spinners Ltd. When the cheques were presented for payment, they were dishonoured on the ground that Sufficient funds were not available and exceed arrangement. A notice was then sent by the appellant which the respondent refused to accept. This was followed by a complaint under section 138 read with section 142 of the Negotiable Instruments Act, 1881, in the Court of the Judicial Magistrate, 1st Class, Chopda, District Jalgaon, Maharashtra. On the complaint being filed, a process was issued against the accused.The respondent moved an application before the Magistrate asking him to recall the process. Having failed in this attempt, a petition under section 482 Cr.P.C. was filed in the High Court. The High Court by the impugned judgment came to the conclusion that notice under section 138 was sent by the appellant herein to A. Chinnaswamy at his office address but this could not mean that the notice was sent to the company itself. On this ground alone, the High Court allowed the petition and quashed the complaint which was filed.In our opinion, the High Court erred in quashing the complaint. It is evident that proceedings were initiated by the appellant against A. Chinnaswamy who happened to be the managing director of Shakti Spinners Ltd. The cheques in question which were dishonoured were signed by him. The process was issued by the Judicial Magistrate in his name. We see no infirmity in the notice issued under section 138 addressed to A. Chinnaswamy, who was a signatory of the said cheques. | 1[ds]In our opinion, the High Court erred in quashing the complaint. It is evident that proceedings were initiated by the appellant against A. Chinnaswamy who happened to be the managing director of Shakti Spinners Ltd. The cheques in question which were dishonoured were signed by him. The process was issued by the Judicial Magistrate in his name. We see no infirmity in the notice issued under section 138 addressed to A. Chinnaswamy, who was a signatory of the said cheques. | 1 | 300 | 91 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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Leave granted.Six cheques were issued in favour of the appellant herein. The cheques were signed by A. Chinnaswami, Managing Director of Shakti Spinners Ltd. When the cheques were presented for payment, they were dishonoured on the ground that Sufficient funds were not available and exceed arrangement. A notice was then sent by the appellant which the respondent refused to accept. This was followed by a complaint under section 138 read with section 142 of the Negotiable Instruments Act, 1881, in the Court of the Judicial Magistrate, 1st Class, Chopda, District Jalgaon, Maharashtra. On the complaint being filed, a process was issued against the accused.The respondent moved an application before the Magistrate asking him to recall the process. Having failed in this attempt, a petition under section 482 Cr.P.C. was filed in the High Court. The High Court by the impugned judgment came to the conclusion that notice under section 138 was sent by the appellant herein to A. Chinnaswamy at his office address but this could not mean that the notice was sent to the company itself. On this ground alone, the High Court allowed the petition and quashed the complaint which was filed.In our opinion, the High Court erred in quashing the complaint. It is evident that proceedings were initiated by the appellant against A. Chinnaswamy who happened to be the managing director of Shakti Spinners Ltd. The cheques in question which were dishonoured were signed by him. The process was issued by the Judicial Magistrate in his name. We see no infirmity in the notice issued under section 138 addressed to A. Chinnaswamy, who was a signatory of the said cheques.
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In our opinion, the High Court erred in quashing the complaint. It is evident that proceedings were initiated by the appellant against A. Chinnaswamy who happened to be the managing director of Shakti Spinners Ltd. The cheques in question which were dishonoured were signed by him. The process was issued by the Judicial Magistrate in his name. We see no infirmity in the notice issued under section 138 addressed to A. Chinnaswamy, who was a signatory of the said cheques.
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Veb Deutfracht Seereederei Rostock A Dept. Of The German De Vs. New Central Jute Mills Co. Ltd And Anothers | impossible to say - no doubt, our government would not wish to say - that the Crown had thereby deprived itself of the right to rely on that immunity if an attempt were made to sue it in a foreign country. One must look in every case at the facts to reach a conclusion whether the Crown has intended to give up its immunity generally or only for limited and defined purposes." * 9. In the case of Royal Nepal Airlines Corpn. v. Monorama Meher Singh Legha 1966 AIR(Cal) 319 : 69 CWN 767) a Division Bench of the Calcutta High court held that Nepal Airlines Corporation having its office at Calcutta shall be deemed to be department of the Government of Nepal on the basis of the documents produced before the court and as such was entitled to claim immunity from the process of the Indian Court to exercise its jurisdiction in respect of the claim for damages which had been brought by the plaintiff of the said suit. But, at the same time, it must be impressed that any plea of immunity raised by a corporate undertaking of a foreign State, has to be examined on the basis of materials produced on behalf of such undertaking or corporation. The initial onus of establishing that such corporation or undertaking had right to immunity, must be discharged. If it satisfies the court that because of any constitutional provision, although such corporation has its separate legal entity, still it shall be deemed to be a department of the State for purpose of immunity, then only the onus will shift to the plaintiff to disprove any such claim 10. In the present case, the appellant had produced the Constitution of the German Democratic Republic, Article 12 whereof has been reproduced above, which provides that larger industrial enterprises, banks, insurance companies, nationally-owned farms, means of transport of the railways, ocean shipping and civil aviation, post and telecommunication installations are nationally-owned property, private ownership thereof is inadmissible. In view of the aforesaid Article 12 of the Constitution and the certificate granted by the Counsel General of the German Democratic Republic, the appellant shall be deemed to be a department of the Government of German Democratic republic11. Sub-section (2) of Section 86 of the Code says that such consent shall not be given unless it appears to the Central Government that the suit in question has been filed under the conditions mentioned in clauses (a) to (d) of sub-section (2) of Section 86. clause (b) of sub-section (2) provides that consent shall be given, in respect of a suit, which has been filed against a foreign State, if such foreign State by itself or another, trades within the local limits of the jurisdiction of the Court. When sub-section (2) provides that such consent shall be given by the Central Government in respect of cases covered by clause (b) of sub-section (2), then a person who is to sue in any court of competent jurisdiction, against any such foreign State or any company or corporation, which can be held to be a foreign state in respect of any breach of contract, is entitled to apply for consent of the Central Government and the Central Government is expected to consider the said request taking into consideration the facts and circumstances of that particular case. While considering the question of grant or refusal of such consent, the Central Government is expected to examine that question objectively. Once the Central Government is satisfied that a cause of action has accrued to the applicant against any foreign company or corporation, which shall be deemed to be foreign State, such consent should be given. The immunity and protection extended to the foreign State on the basis of International Law should not be stretched to a limit, so that a foreign company and corporation, trading within the local limit of the jurisdiction of the court concerned, may take a plea of Section 86, although prima facie it appears that such company or corporation is liable to be sued for any act or omission on their part or for any breach of the terms of the contract entered on their behalf. It is neither the purpose not the scope of Section 86 to protect such foreign traders, who have committed breach of the terms of the contract, causing loss and injury to the plaintiff. But, if it appears to the Central Government that, any attempt on the part of the plaintiff, to sue a foreign State, including any company or corporation, is just to harass or to drag them in a frivolous litigation, then certainly the Central Government shall be justified in rejecting any such application for consent, because such motivated action on the part of the plaintiff, may strain the relations of this country with the foreign State12. In the present case, the appellant having been held to be a foreign State within the meaning of Section 86 and the plaintiff-respondent not having obtained the consent of the Central Government, as required by Section 86, the suit filed on its behalf was not rightly entertained by the trial court. The question whether a suit should be entertained, cannot be deferred, till the stage of the final disposal of he suit, because that will serve neither the interest of the plaintiff nor of the defendant. The object of Section 86 is to save foreign States from being harassed by defending suits in which there are hardly any merits. If the foreign State is required to file written statement and to contest the said suit and only at the state of final disposal, a verdict is given whether in the facts and circumstances of the particular case, such foreign State is entitled to the protection of Section 86 of the Code, the very object and purpose of Section 86 shall be frustrated. The bar of Section 86 can be taken at the earliest opportunity and the court concerned is expected to examine the same | 1[ds]10. In the present case, the appellant had produced the Constitution of the German Democratic Republic, Article 12 whereof has been reproduced above, which provides that larger industrial enterprises, banks, insurance companies,farms, means of transport of the railways, ocean shipping and civil aviation, post and telecommunication installations areproperty, private ownership thereof is inadmissible. In view of the aforesaid Article 12 of the Constitution and the certificate granted by the Counsel General of the German Democratic Republic, the appellant shall be deemed to be a department of the Government of German Democratic republic11.(2) of Section 86 of the Code says that such consent shall not be given unless it appears to the Central Government that the suit in question has been filed under the conditions mentioned in clauses (a) to (d) of(2) of Section 86. clause (b) of(2) provides that consent shall be given, in respect of a suit, which has been filed against a foreign State, if such foreign State by itself or another, trades within the local limits of the jurisdiction of the Court. When(2) provides that such consent shall be given by the Central Government in respect of cases covered by clause (b) of(2), then a person who is to sue in any court of competent jurisdiction, against any such foreign State or any company or corporation, which can be held to be a foreign state in respect of any breach of contract, is entitled to apply for consent of the Central Government and the Central Government is expected to consider the said request taking into consideration the facts and circumstances of that particular case. While considering the question of grant or refusal of such consent, the Central Government is expected to examine that question objectively. Once the Central Government is satisfied that a cause of action has accrued to the applicant against any foreign company or corporation, which shall be deemed to be foreign State, such consent should be given. The immunity and protection extended to the foreign State on the basis of International Law should not be stretched to a limit, so that a foreign company and corporation, trading within the local limit of the jurisdiction of the court concerned, may take a plea of Section 86, although prima facie it appears that such company or corporation is liable to be sued for any act or omission on their part or for any breach of the terms of the contract entered on their behalf. It is neither the purpose not the scope of Section 86 to protect such foreign traders, who have committed breach of the terms of the contract, causing loss and injury to the plaintiff. But, if it appears to the Central Government that, any attempt on the part of the plaintiff, to sue a foreign State, including any company or corporation, is just to harass or to drag them in a frivolous litigation, then certainly the Central Government shall be justified in rejecting any such application for consent, because such motivated action on the part of the plaintiff, may strain the relations of this country with the foreign State12. In the present case, the appellant having been held to be a foreign State within the meaning of Section 86 and thenot having obtained the consent of the Central Government, as required by Section 86, the suit filed on its behalf was not rightly entertained by the trial court. The question whether a suit should be entertained, cannot be deferred, till the stage of the final disposal of he suit, because that will serve neither the interest of the plaintiff nor of the defendant. The object of Section 86 is to save foreign States from being harassed by defending suits in which there are hardly any merits. If the foreign State is required to file written statement and to contest the said suit and only at the state of final disposal, a verdict is given whether in the facts and circumstances of the particular case, such foreign State is entitled to the protection of Section 86 of the Code, the very object and purpose of Section 86 shall be frustrated. The bar of Section 86 can be taken at the earliest opportunity and the court concerned is expected to examine the same | 1 | 3,013 | 796 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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impossible to say - no doubt, our government would not wish to say - that the Crown had thereby deprived itself of the right to rely on that immunity if an attempt were made to sue it in a foreign country. One must look in every case at the facts to reach a conclusion whether the Crown has intended to give up its immunity generally or only for limited and defined purposes." * 9. In the case of Royal Nepal Airlines Corpn. v. Monorama Meher Singh Legha 1966 AIR(Cal) 319 : 69 CWN 767) a Division Bench of the Calcutta High court held that Nepal Airlines Corporation having its office at Calcutta shall be deemed to be department of the Government of Nepal on the basis of the documents produced before the court and as such was entitled to claim immunity from the process of the Indian Court to exercise its jurisdiction in respect of the claim for damages which had been brought by the plaintiff of the said suit. But, at the same time, it must be impressed that any plea of immunity raised by a corporate undertaking of a foreign State, has to be examined on the basis of materials produced on behalf of such undertaking or corporation. The initial onus of establishing that such corporation or undertaking had right to immunity, must be discharged. If it satisfies the court that because of any constitutional provision, although such corporation has its separate legal entity, still it shall be deemed to be a department of the State for purpose of immunity, then only the onus will shift to the plaintiff to disprove any such claim 10. In the present case, the appellant had produced the Constitution of the German Democratic Republic, Article 12 whereof has been reproduced above, which provides that larger industrial enterprises, banks, insurance companies, nationally-owned farms, means of transport of the railways, ocean shipping and civil aviation, post and telecommunication installations are nationally-owned property, private ownership thereof is inadmissible. In view of the aforesaid Article 12 of the Constitution and the certificate granted by the Counsel General of the German Democratic Republic, the appellant shall be deemed to be a department of the Government of German Democratic republic11. Sub-section (2) of Section 86 of the Code says that such consent shall not be given unless it appears to the Central Government that the suit in question has been filed under the conditions mentioned in clauses (a) to (d) of sub-section (2) of Section 86. clause (b) of sub-section (2) provides that consent shall be given, in respect of a suit, which has been filed against a foreign State, if such foreign State by itself or another, trades within the local limits of the jurisdiction of the Court. When sub-section (2) provides that such consent shall be given by the Central Government in respect of cases covered by clause (b) of sub-section (2), then a person who is to sue in any court of competent jurisdiction, against any such foreign State or any company or corporation, which can be held to be a foreign state in respect of any breach of contract, is entitled to apply for consent of the Central Government and the Central Government is expected to consider the said request taking into consideration the facts and circumstances of that particular case. While considering the question of grant or refusal of such consent, the Central Government is expected to examine that question objectively. Once the Central Government is satisfied that a cause of action has accrued to the applicant against any foreign company or corporation, which shall be deemed to be foreign State, such consent should be given. The immunity and protection extended to the foreign State on the basis of International Law should not be stretched to a limit, so that a foreign company and corporation, trading within the local limit of the jurisdiction of the court concerned, may take a plea of Section 86, although prima facie it appears that such company or corporation is liable to be sued for any act or omission on their part or for any breach of the terms of the contract entered on their behalf. It is neither the purpose not the scope of Section 86 to protect such foreign traders, who have committed breach of the terms of the contract, causing loss and injury to the plaintiff. But, if it appears to the Central Government that, any attempt on the part of the plaintiff, to sue a foreign State, including any company or corporation, is just to harass or to drag them in a frivolous litigation, then certainly the Central Government shall be justified in rejecting any such application for consent, because such motivated action on the part of the plaintiff, may strain the relations of this country with the foreign State12. In the present case, the appellant having been held to be a foreign State within the meaning of Section 86 and the plaintiff-respondent not having obtained the consent of the Central Government, as required by Section 86, the suit filed on its behalf was not rightly entertained by the trial court. The question whether a suit should be entertained, cannot be deferred, till the stage of the final disposal of he suit, because that will serve neither the interest of the plaintiff nor of the defendant. The object of Section 86 is to save foreign States from being harassed by defending suits in which there are hardly any merits. If the foreign State is required to file written statement and to contest the said suit and only at the state of final disposal, a verdict is given whether in the facts and circumstances of the particular case, such foreign State is entitled to the protection of Section 86 of the Code, the very object and purpose of Section 86 shall be frustrated. The bar of Section 86 can be taken at the earliest opportunity and the court concerned is expected to examine the same
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10. In the present case, the appellant had produced the Constitution of the German Democratic Republic, Article 12 whereof has been reproduced above, which provides that larger industrial enterprises, banks, insurance companies,farms, means of transport of the railways, ocean shipping and civil aviation, post and telecommunication installations areproperty, private ownership thereof is inadmissible. In view of the aforesaid Article 12 of the Constitution and the certificate granted by the Counsel General of the German Democratic Republic, the appellant shall be deemed to be a department of the Government of German Democratic republic11.(2) of Section 86 of the Code says that such consent shall not be given unless it appears to the Central Government that the suit in question has been filed under the conditions mentioned in clauses (a) to (d) of(2) of Section 86. clause (b) of(2) provides that consent shall be given, in respect of a suit, which has been filed against a foreign State, if such foreign State by itself or another, trades within the local limits of the jurisdiction of the Court. When(2) provides that such consent shall be given by the Central Government in respect of cases covered by clause (b) of(2), then a person who is to sue in any court of competent jurisdiction, against any such foreign State or any company or corporation, which can be held to be a foreign state in respect of any breach of contract, is entitled to apply for consent of the Central Government and the Central Government is expected to consider the said request taking into consideration the facts and circumstances of that particular case. While considering the question of grant or refusal of such consent, the Central Government is expected to examine that question objectively. Once the Central Government is satisfied that a cause of action has accrued to the applicant against any foreign company or corporation, which shall be deemed to be foreign State, such consent should be given. The immunity and protection extended to the foreign State on the basis of International Law should not be stretched to a limit, so that a foreign company and corporation, trading within the local limit of the jurisdiction of the court concerned, may take a plea of Section 86, although prima facie it appears that such company or corporation is liable to be sued for any act or omission on their part or for any breach of the terms of the contract entered on their behalf. It is neither the purpose not the scope of Section 86 to protect such foreign traders, who have committed breach of the terms of the contract, causing loss and injury to the plaintiff. But, if it appears to the Central Government that, any attempt on the part of the plaintiff, to sue a foreign State, including any company or corporation, is just to harass or to drag them in a frivolous litigation, then certainly the Central Government shall be justified in rejecting any such application for consent, because such motivated action on the part of the plaintiff, may strain the relations of this country with the foreign State12. In the present case, the appellant having been held to be a foreign State within the meaning of Section 86 and thenot having obtained the consent of the Central Government, as required by Section 86, the suit filed on its behalf was not rightly entertained by the trial court. The question whether a suit should be entertained, cannot be deferred, till the stage of the final disposal of he suit, because that will serve neither the interest of the plaintiff nor of the defendant. The object of Section 86 is to save foreign States from being harassed by defending suits in which there are hardly any merits. If the foreign State is required to file written statement and to contest the said suit and only at the state of final disposal, a verdict is given whether in the facts and circumstances of the particular case, such foreign State is entitled to the protection of Section 86 of the Code, the very object and purpose of Section 86 shall be frustrated. The bar of Section 86 can be taken at the earliest opportunity and the court concerned is expected to examine the same
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THE ESTATE OFFICER, EVICTION AUTHORITY, N.L.C. LTD., NEYVELI Vs. B. MANORANJITHAM | 1. This appeal is directed against order dated 22.06.2006 passed by the High Court of Madras in CRP NPD No. 1469 of 2005.2. The broad facts of the case are that the appellant had granted a licence to run a tea stall to one Sampath Kumar some time in October 1995.3. It appears that soon after the grant of licence, Sampath Kumar sold the tea stall to the respondent in November, 1995. When the appellant became aware of the fact that some unauthorized person was running the tea stall, a notice was issued to Sampath Kumar and pursuant thereto the licence granted to him was cancelled by an order dated 13.08.2004. The cancellation of the licence granted to Sampath Kumar is not an issue before us.4. Thereafter, a show-cause notice was issued to the respondent. In response to the show-cause notice, the respondent made submissions and that led to an order of eviction passed against him as an unauthorised occupant of the premises on 27.01.2005.5. Feeling aggrieved by the eviction order dated 27.01.2005, an appeal was filed by the respondent which came to be allowed by the District Judge on 29.06.2005. Against that order, the appellant preferred a writ petition which came to be dismissed by the impugned order.6. We may mention at this stage that during the pendency of the proceedings, the appellant had come out with a scheme some time in July 2001 with respect to regularization of the licence granted to some of the traders. According to the respondent, an application was filed by the respondent as well as Sampath Kumar for regularization of the transfer/sale of the licence by Sampath Kumar in favour of the respondent.7. While that application was pending, the respondent was evicted from the tea stall pursuant to the order of eviction dated 27.01.2005. The physical eviction of the respondent took place some time in February / March 2005.8. The appellant, thereafter, issued a tender for the allotment of the tea stall and through a process of selection, the tea stall was allotted to one Mr. S. Manoharan and Mr. V. Selvaraj and possession was handed over to them on or about 10.04.2005. We are told that the two allottees are in possession of the tea stall since then.9. It is submitted by learned counsel for the respondent that there is an implied licence granted to the respondent particularly in view of the conduct of the appellant which has been taking the licence fee from the respondent during the period that the respondent was in occupation of the tea stall. It is further submitted that the application filed by the respondent as well as Mr. Sampath Kumar has not yet been decided by the appellant and therefore this is an additional factor which indicates that an implied licence has been granted to the respondent. Reference has been made to Section 54 of the Indian Easements Act, 1882.10. In our opinion, the respondent has not made any case in his favour. There is no dispute about the fact that the licence was given by the appellant to Mr. Sampath Kumar and the licence was a non-transferable licence. Under these circumstances, the respondent could not have been put in possession of the tea stall.11. Undoubtedly, the premises were Public Premises as defined under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 and the respondent was an unauthorized occupant of the premises in terms of Section 2 (g) of the said Act.12. In so far as the present case is concerned, since eviction proceeding had been initiated against Sampath Kumar, it cannot be said that the respondent had an implied licence to continue in the premises. If that was so, the appellant would not have taken any steps for the eviction of Sampath Kumar nor would it have passed eviction order against Sampath Kumar.13. The appellant also by its conduct in having opened a tender of the tea stall and granting it to Mr. S. Manoharan and Mr. V. Selvaraj is a clear indication that there was no intention on the part of the appellant to grant a licence to the respondent either impliedly or expressly. All along the appellant had treated the respondent as an unauthorized occupant and therefore it cannot be said that any right accrued in favour of the respondent to continue in the premises in question. | 1[ds]We are told that the two allottees are in possession of the tea stall since then10. In our opinion, the respondent has not made any case in his favour. There is no dispute about the fact that the licence was given by the appellant to Mr. Sampath Kumar and the licence was a non-transferable licence. Under these circumstances, the respondent could not have been put in possession of the tea stall11. Undoubtedly, the premises were Public Premises as defined under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 and the respondent was an unauthorized occupant of the premises in terms of Section 2 (g) of the said Act12. In so far as the present case is concerned, since eviction proceeding had been initiated against Sampath Kumar, it cannot be said that the respondent had an implied licence to continue in the premises. If that was so, the appellant would not have taken any steps for the eviction of Sampath Kumar nor would it have passed eviction order against Sampath Kumar13. The appellant also by its conduct in having opened a tender of the tea stall and granting it to Mr. S. Manoharan and Mr. V. Selvaraj is a clear indication that there was no intention on the part of the appellant to grant a licence to the respondent either impliedly or expressly. All along the appellant had treated the respondent as an unauthorized occupant and therefore it cannot be said that any right accrued in favour of the respondent to continue in the premises in question. | 1 | 780 | 283 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
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1. This appeal is directed against order dated 22.06.2006 passed by the High Court of Madras in CRP NPD No. 1469 of 2005.2. The broad facts of the case are that the appellant had granted a licence to run a tea stall to one Sampath Kumar some time in October 1995.3. It appears that soon after the grant of licence, Sampath Kumar sold the tea stall to the respondent in November, 1995. When the appellant became aware of the fact that some unauthorized person was running the tea stall, a notice was issued to Sampath Kumar and pursuant thereto the licence granted to him was cancelled by an order dated 13.08.2004. The cancellation of the licence granted to Sampath Kumar is not an issue before us.4. Thereafter, a show-cause notice was issued to the respondent. In response to the show-cause notice, the respondent made submissions and that led to an order of eviction passed against him as an unauthorised occupant of the premises on 27.01.2005.5. Feeling aggrieved by the eviction order dated 27.01.2005, an appeal was filed by the respondent which came to be allowed by the District Judge on 29.06.2005. Against that order, the appellant preferred a writ petition which came to be dismissed by the impugned order.6. We may mention at this stage that during the pendency of the proceedings, the appellant had come out with a scheme some time in July 2001 with respect to regularization of the licence granted to some of the traders. According to the respondent, an application was filed by the respondent as well as Sampath Kumar for regularization of the transfer/sale of the licence by Sampath Kumar in favour of the respondent.7. While that application was pending, the respondent was evicted from the tea stall pursuant to the order of eviction dated 27.01.2005. The physical eviction of the respondent took place some time in February / March 2005.8. The appellant, thereafter, issued a tender for the allotment of the tea stall and through a process of selection, the tea stall was allotted to one Mr. S. Manoharan and Mr. V. Selvaraj and possession was handed over to them on or about 10.04.2005. We are told that the two allottees are in possession of the tea stall since then.9. It is submitted by learned counsel for the respondent that there is an implied licence granted to the respondent particularly in view of the conduct of the appellant which has been taking the licence fee from the respondent during the period that the respondent was in occupation of the tea stall. It is further submitted that the application filed by the respondent as well as Mr. Sampath Kumar has not yet been decided by the appellant and therefore this is an additional factor which indicates that an implied licence has been granted to the respondent. Reference has been made to Section 54 of the Indian Easements Act, 1882.10. In our opinion, the respondent has not made any case in his favour. There is no dispute about the fact that the licence was given by the appellant to Mr. Sampath Kumar and the licence was a non-transferable licence. Under these circumstances, the respondent could not have been put in possession of the tea stall.11. Undoubtedly, the premises were Public Premises as defined under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 and the respondent was an unauthorized occupant of the premises in terms of Section 2 (g) of the said Act.12. In so far as the present case is concerned, since eviction proceeding had been initiated against Sampath Kumar, it cannot be said that the respondent had an implied licence to continue in the premises. If that was so, the appellant would not have taken any steps for the eviction of Sampath Kumar nor would it have passed eviction order against Sampath Kumar.13. The appellant also by its conduct in having opened a tender of the tea stall and granting it to Mr. S. Manoharan and Mr. V. Selvaraj is a clear indication that there was no intention on the part of the appellant to grant a licence to the respondent either impliedly or expressly. All along the appellant had treated the respondent as an unauthorized occupant and therefore it cannot be said that any right accrued in favour of the respondent to continue in the premises in question.
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We are told that the two allottees are in possession of the tea stall since then10. In our opinion, the respondent has not made any case in his favour. There is no dispute about the fact that the licence was given by the appellant to Mr. Sampath Kumar and the licence was a non-transferable licence. Under these circumstances, the respondent could not have been put in possession of the tea stall11. Undoubtedly, the premises were Public Premises as defined under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 and the respondent was an unauthorized occupant of the premises in terms of Section 2 (g) of the said Act12. In so far as the present case is concerned, since eviction proceeding had been initiated against Sampath Kumar, it cannot be said that the respondent had an implied licence to continue in the premises. If that was so, the appellant would not have taken any steps for the eviction of Sampath Kumar nor would it have passed eviction order against Sampath Kumar13. The appellant also by its conduct in having opened a tender of the tea stall and granting it to Mr. S. Manoharan and Mr. V. Selvaraj is a clear indication that there was no intention on the part of the appellant to grant a licence to the respondent either impliedly or expressly. All along the appellant had treated the respondent as an unauthorized occupant and therefore it cannot be said that any right accrued in favour of the respondent to continue in the premises in question.
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Bhuvnesh Kumar Dwivedi Vs. M/S Hindalco Industries Ltd | substitute for reinstatement. The traditional rule has survived because of the sustenance it received from the law of contracts. From the contractual principle of mutuality of obligation, it was reasoned that if the employee can quit his job at will, then so too must the employer have the right to terminate the relationship for any or no reason. And there are a number of cases in which even contracts for permanent employment i.e. for indefinite terms, have been held unenforceable on the ground that they lack mutuality of obligation. But these cases demonstrate that mutuality is a high-sounding phrase of little use as an analytical tool and it would seem clear that mutuality of obligation is not an inexorable requirement and that lack of mutuality is simply, as many courts have come to recognise, an imperfect way of referring to the real obstacle to enforcing any kind of contractual limitation on the employers right of discharge i.e. lack of consideration. If there is anything in contract law which seems likely to advance the present inquiry, it is the growing tendency to protect individuals from contracts of adhesion from overreaching terms often found in standard forms of contract used by large commercial establishments. Judicial disfavour of contracts of adhesion has been said to reflect the assumed need to protect the weaker contracting part against the harshness of the common law and the abuses of freedom of contract. The same philosophy seems to provide an appropriate answer to the argument, which still seems to have some vitality, that the servant cannot complain, as he takes the employment on the terms which are offered to him. (emphasis added) 28. In Govt. Branch Press v. D.B. Belliappa, the employer invoked the theory of hire and fire by contending that the respondents appointment was purely temporary and his service could be terminated at any time in accordance with the terms and conditions of appointment which he had voluntarily accepted. While rejecting this plea as wholly misconceived, the Court observed: (SCC p. 486, para 25) 25. … It is borrowed from the archaic common law concept that employment was a matter between the master and servant only. In the first place, this rule in its original absolute form is not applicable to government servants. Secondly, even with regard to private employment, much of it has passed into the fossils of time. This rule held the field at the time when the master and servant were taken more literally than they are now and when, as in early Roman law, the rights of the servant, like the rights of any other member of the household, were not his own, but those of his paterfamilias. The overtones of this ancient doctrine are discernible in the Anglo-American jurisprudence of the 18th century and the first half of the 20th century, which rationalised the employers absolute right to discharge the employee. Such a philosophy, as pointed out by K.K. Mathew, J. (vide his treatise: Democracy, Equality and Freedom, p. 326), of the employers dominion over his employee may have been in tune with the rustic simplicity of bygone days. But that philosophy is incompatible with these days of large, impersonal, corporate employers. To bring it in tune with vastly changed and changing socio-economic conditions and mores of the day, much of this old, antiquated and unjust doctrine has been eroded by judicial decisions and legislation, particularly in its application to persons in public employment, to whom the constitutional protection of Articles 14, 15, 16 and 311 is available. The argument is therefore overruled. 29. The doctrine of laissez faire was again rejected in Glaxo Laboratories (I) Ltd. v. Presiding Officer, in the following words: 12. In the days of laissez faire when industrial relation was governed by the harsh weighted law of hire and fire the management was the supreme master, the relationship being referable to contract between unequals and the action of the management treated almost sacrosanct. The developing notions of social justice and the expanding horizon of socio-economic justice necessitated statutory protection to the unequal partner in the industry, namely, those who invest blood and flesh against those who bring in capital. Moving from the days when whim of the employer was suprema lex, the Act took a modest step to compel by statute the employer to prescribe minimum conditions of service subject to which employment is given. The Act was enacted as its long title shows to require employers in industrial establishments to define with sufficient precision the conditions of employment under them and to make the said conditions known to workmen employed by them. The movement was from status to contract, the contract being not left to be negotiated by two unequal persons but statutorily imposed. If this socially beneficial Act was enacted for ameliorating the conditions of the weaker partner, conditions of service prescribed thereunder must receive such interpretation as to advance the intendment underlying the Act and defeat the mischief. 35. We therefore conclude and hold that the Labour Court was correct on legal and factual principles in reinstating the appellant along with full back wages after setting aside the order of termination. The High Court on the other hand, has erred by exceeding its jurisdiction under Article 227 of the Constitution of India in holding that the appellant has in fact, resigned by not joining his duty as a Badly worker and also awarding that retrenchment compensation to the tune of [pic]1,00,000/- will do justice to the appellant without assigning reasons which is wholly unsustainable in law. 36. The learned counsel for the respondent had mentioned before this Court about a settlement between the parties in this matter after the judgment was reserved. Therefore, we have not taken into consideration such plea from the learned counsel of the respondent since it was taken up after the hearing was over. Also the documentary evidence on record produced by the parties required us to reject the subsequent plea made by the respondent in this case. | 1[ds]Answer to point No. 116. The appellant has claimed that the High Court has modified the award passed by the Labour Court which has awarded reinstatement of the appellant with full back wages and other consequential benefits to simply awarding compensation to the tune of [pic]1,00,000/- by the High Court in lieu of reinstatement with back wages and consequential benefits which order is bad in law in the light of the legal principles laid down by this Court in the catena of cases. In the case of Heinz India (P) Ltd. v. Union of India [(2012) 5 SCC 443] , this Court, on the issue of the power of the High Court for judicial review under Article 226, held as under:60. The power of judicial review is neither unqualified nor unlimited. It has its own limitations. The scope and extent of the power that is so very often invoked has been the subject-matter of several judicial pronouncements within and outside the country. When one talks of judicial review one is instantly reminded of the classic and oft quoted passage from Council of Civil Service Unions (CCSU) v. Minister for the Civil Service [1984] 3 All ER 935, where Lord Diplock summed up the permissible grounds of judicial review thus:Judicial Review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call illegality, the second irrationality and the third procedural impropriety. By illegality as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the State is exercisableBy irrationality I mean what can by now be succinctly referred to as Wednesbury unreasonableness. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer or else there would be something badly wrong with our judicial system...I have described the third head as procedural impropriety rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justiceFurther, in the case of Devinder Singh v. Municipal Council, Sanaur [(2011) 6 SCC 584] , it was held that :22. ……A careful analysis thereof reveals that the High Court neither found any jurisdictional infirmity in the award of the Labour Court nor it came to the conclusion that the same was vitiated by an error of law apparent on the face of the record. Notwithstanding this, the High Court set aside the direction given by the Labour Court for reinstatement of the Appellant by assuming that his initial appointment/engagement was contrary to law and that it would not be in public interest to approve the award of reinstatement after long lapse of time. In our view, the approach adopted by the High Court in dealing with the award of the Labour Court was ex facie erroneous and contrary to the law laid down in Syed Yakoob v. K.S. Radhakrishnan AIR (1964) SC 477 , Swaran Singh v. State of Punjab (1976) 2 SCC 868 P.G.I. of Medical Education & Research, Chandigarh v. Raj Kumar (2001) 2 SCC 54 , Surya Dev Rai v. Ram Chander Rai (2003) 6 SCC 675 and Shalini Shyam v. Rajendra Shankar Path (2010) 8 SCC 329 23. In Syed Yakoob v. K.S. Radhakrishnan (supra), this Court identified the limitations of certiorari jurisdiction of the High Court under Article 226 of the Constitution in the following words:The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the court or tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the court exercising it is not entitled to act as an appellate court. This limitation necessarily means that findings of fact reached by the inferior court or tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the tribunal, and the said points cannot be agitated before a writ court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercisedIn the second judgment - Swaran Singh v. State of Punjab (supra), this Court reiterated the limitations of certiorari jurisdiction indicated in Syed Yakoob v. Radhakrishnan (supra) and observed:In regard to a finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued only if in recording such a finding, the tribunal has acted on evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law. The writ jurisdiction extends only to cases where orders are passed by inferior courts or tribunals in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice17. The judgments mentioned above can be read with the judgment of this court in Harjinder Singhs case (supra), the relevant paragraph of which reads as under:21. Before concluding, we consider it necessary to observe that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution in matters like the present one, the High Courts are duty-bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the Preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43-A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to subserve the common good and also ensure that the workers get their dues. More than 41 years ago, Gajendragadkar, J. opined that:10. … The concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of welfare State(State of Mysore v. Workers of Gold Mines13, AIR p. 928, para 10.)18. A careful reading of the judgments reveals that the High Court can interfere with an Order of the Tribunal only on the procedural level and in cases, where the decision of the lower courts has been arrived at in gross violation of the legal principles. The High Court shall interfere with factual aspect placed before the Labour Courts only when it is convinced that the Labour Court has made patent mistakes in admitting evidence illegally or have made grave errors in law in coming to the conclusion on facts. The High Court granting contrary relief under Articles 226 and 227 of the Constitution amounts to exceeding its jurisdiction conferred upon it. Therefore, we accordingly answer the point No. 1 in favour of the appellantAnswer to point No. 219. No plea was made by the respondent in its written statement filed before the Labour Court with regard to the provision of Section 2(oo)(bb) of the I.D. Act. Nonetheless, this legal ground without any factual foundation was pressed into operation before the Labour Court by the learned counsel for the respondent. The same has been addressed by the Labour Court by rejecting the said contention by assigning its own reasons. Before we record our finding on this contention, it is pertinent to mention the provision of Section 2 (oo) (bb) of the I.D. Act, which reads thus:2 (oo) retrenchment means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include-[(bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under the stipulation in that behalf contained therein; or]20. It is argued by the learned counsel for the appellant that there is no provision in pari materia to this provision in the U.P. I.D. ActTherefore, even if the service of the appellant is terminated on expiry of the contract period of service, it would fall within the definition of retrenchment under the U.P. I.D. Act for non compliance of the mandatory requirement under Section 6-N of the U.P. I.D. Act. The order of termination against the appellant is rendered void ab initio in law, therefore, the appellant is entitled to be reinstated with back wages and consequential benefits. In support of this contention, the learned counsel has aptly relied upon the decision of this Court in U.P. State Sugar Corporation Ltd. v. Om Prakash Upadhyay [(2002) 10 SCC 89] , with regard to the applicability of the provision of Section 2(oo) (bb) of the I.D. Act which was amended provision after the U.P. I.D. Act, the relevant paragraphs of which read as under:5. The law is settled that under the Central Act every case of retrenchment would not include a case of contractual termination which came to be introduced under the Central Act by amending Act 49 of 1984 which purports to exclude from the ambit of definition retrenchment inter alia: (i) termination of service of a workman as a result of the non- renewal of contract of employment between the employer and the workman concerned on its expiry, or (ii) termination of the contract of employment in terms of a stipulation contained in the contract of employment in that behalf. Such a case is not available under the U.P. Industrial Disputes Act. If the U.P. Industrial Disputes Act covers the present case then termination of the services of the respondent would certainly result in retrenchment while it is not so under the Central Industrial Disputes Act in view of the exceptional clauses referred to above. While the former situation results in retrenchment, the latter situation does not amount to retrenchment if the same case would arise under the State Industrial Disputes Act. Thus operation of the two enactments would bring to the forefront the obvious repugnancy between them. In such a case as to how the question is to be resolved needs to be considered in the present case6. Inasmuch as the enactments, both by the State and the Centre, are under the Concurrent List, we are urged to look to Article 254(2) of the Constitution of India. If we view from that angle, the U.P. Industrial Disputes Act also covers the same field as the Central Industrial Disputes Act. However, Section 2 (oo) (bb) is obviously a special provision enacted under in order to understand the meaning of retrenchment and that is the law made by Parliament subsequent to State enactment and naturally falls within the proviso to Article 254(2). If that is so, the Central Industrial Disputes Act. Therefore, we would have taken that view but for the special provisions in the Central Act which we will advert to hereinafter7. Section 1(2) of the Central Act provides that the Act extends to the whole of India and this sub-section was substituted for the original sub- section (2) by the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956 (36 of 1956) with effect from 29-8-1956. Under that Act, Section 31 (which came into force from 7-10-1956) has been introduced which reads as follows:31.Act not to override State laws.- (1) If, immediately before the commencement of this Act, there is in force in any State any Provincial Act or State Act relating to the settlement or adjudication of disputes, the operation of such an Act in that State in relation to matters covered by that Act shall not be affected by the Industrial Disputes Act, 1947 as amended by this ActSub- section (1) of the said section makes it clear that the operation of the State Act will not be affected by the Central Act…21. The learned counsel for the appellant therefore, rightly submitted that Section 2 (oo) (bb) of the I.D. Act will not be attracted in the present case and on the other hand, the provision of Section 6-N of the U.P. I.D. Act is required to be fulfilled mandatorily by the respondent to retrench the appellant from his service22. The learned senior counsel for the respondent has not brought in his argument to counter the above legal contention except contending that the provision of Section 2(oo) (bb) of the I.D. Act would be applicable to the fact situation of the case as the appellant has been in contract employment in the project. But, we are inclined to hold that s. 2 (oo) (bb) of the I.D. Act is not attracted in the present case on two grounds: Firstly, in the light of the legal principle laid down by this Court in the case of U.P. State Sugar Corporation Ltd. (supra), the provisions of the U.P. I.D. Act remain unaffected by the provision of the I.D. Act because of the provision in s. 31 of the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956. Hence, s. 2 (oo) (bb) is not attracted in the present caseSecondly, the claim of the respondent that the appellant was a temporary worker is not acceptable to us. On perusal of facts, it is revealed that his service has been terminated several times and he was subsequently employed again till his service was finally terminated on 27.7.1998. His brief periods of contracts with the respondent have been from 28.12.1992 to 28.12. 1993 for the first time, from 3.4.1994 to 29.12.1994 for the second time, from 10.1.1995 to 5.1.1996 for the third time, from 16.1.1996 to 11.1.1997 for the fourth time, from 20.1.1997 to 21.1.1998 for the fifth time and from 27.1.1998 to 27.7.1998 for a final time at the end of which his service was terminated23. Very interestingly, the periods of service extends to close to 6 years save the artificial breaks made by the respondent with an oblique motive so as to retain the appellant as a temporary worker and deprive the appellant of his statutory right of permanent worker status. The aforesaid conduct of the respondent perpetuates unfair labour practice as defined under Section 2(ra) of the I.D. Act, which is not permissible in view of Sections 25T and 25U of the I.D. Act read with entry at Serial No. 10 in the Vth Schedule to the I.D. Act regarding unfair labour practicesSection 2 (ra) reads thus:unfair labour practice means any of the practices mentioned in the Vth ScheduleFurther, Entry 10 of Vth Schedule reads as under:(10). To employ workmen as badlis, casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen24. The respondent, in order to mitigate its conduct towards the appellant has claimed that the appellant was appointed solely on contract basis, and his service has been terminated in the manner permissible under Section 2 (oo) (bb) of the I.D. Act. However, we shall not accept this contention of the respondent for the following reasons:-(i) Firstly, the respondent has not produced any material evidence on record before the Labour Court to prove that it meets all the required criteria under the Contract Labour (Regulation and Abolition) Act, 1970, to be eligible to employ employees on contractual basis which includes license number etc(ii) Secondly, the respondent could not produce any material evidence on record before the Labour Court to show that the appellant was employed for any particular project(s) on the completion of which his service has been terminated through non-renewal of his contract of employment25. Therefore, we deem it fit to construe that the appellant has rendered continuous service for six continuous years (save the artificially imposed break) as provided under Section 25B of the I.D. Act and can therefore be subjected to retrenchment only through the procedure mentioned in the I.D. Act or the state Act in pari materia26. Therefore, we answer the point No. 2 in favour of the appellant holding that the Labour Court was correct in holding that the action of the respondent/employer is a clear case of retrenchment of the appellant, which action requires to comply with the mandatory requirement of the provision of Section 6-N of the U.P. I.D. Act. Undisputedly, the same has not been complied with and therefore, the order of retrenchment has rendered void ab initio in law27. Having answered point No. 2 in favour of the appellant, we also answer the point No. 3 in his favour since we construe that the appellant is a worker of the respondent Company providing continuous service for 6 years except for the artificial breaks imposed upon him with an oblique motive by the respondent Company. We hold that the termination of service of the appellant amounts to retrenchment in the light of the principle laid down by three judge bench decision of this Court in State Bank of India v. Shri N. Sundara Money [AIR 1976 SC 1111 ] and attracts the provision of S. 6-N of the U.P. I.D. Act. The case mentioned above illustrates the elements which constitute retrenchment. The relevant paragraphs read as under:9. A break-down of Section 2(oo) unmistakably expands the semantics of retrenchment. Termination...for any reason whatsoever are the keywords. Whatever the reason, every termination spells retrenchment. So the sole question is has the employees service been terminated?Verbal apparel apart, the substance is decisive. A termination takes place where a term expires either by the active step of the master or the running out of the stipulated term. To protect the weak against the strong this policy of comprehensive definition has been effectuated. Termination embraces not merely the act of termination by the employer, but the fact of termination howsoever produced. May be, the present may be a hard case, but we can visualise abuses by employers, by suitable verbal devices, circumventing the armour of Section 25F and Section 2(00). Without speculating on possibilities, we may agree that retrenchment is no longer terra incognita but area covered by an expansive definition. It meats to end, conclude, cease. In the present case the employment ceased, concluded, ended on the expiration of nine days automatically maybe, but cessation all the same. That to write into the order of appointment the date of termination confers no moksha from Section 25F(b) is inferable from the proviso to Section 25F(1). True, the section speaks of retrenchment by the employer and it is urged that some act of volition by the employer to bring about the termination is essential to attract Section 25F and automatic extinguishment of service by effluxion of time cannot be sufficient. An English case R.V. Secretary of State (1973) 2 ALL E.R. 103; was relied on, where Lord Denning, MR observed:I think the word terminate or termination is by itself ambiguous. It can refer to either of two things-either to termination by notice or termination by effluxion of time It is often used in that dual sense in landlord and tenant and in master and servant cases. But there are several indications in this paragraph to show that it refers here only to termination by noticeBuckley L. J, concurred and said:In my judgment the words are not capable of bearing that meaning. As counsel for the Secretary of State has pointed out, the verb terminate can be used either transitively or intransitively. A contract may be said to terminate when it comes to an end by effluxion of time, or it may be said to be terminated when it is determined at notice or otherwise by some act of one of the parties. Here in my judgment the word terminated is used in this passage in para 190 in the transitive sense, and it postulates some act by somebody which is to bring the appointment to an end, and is not applicable to a case in which the appointment comes to an end merely by effluxion of time Words of multiple import have to be winnowed judicially to suit the social philosophy of the statute. So screened, we hold that the transitive and intransitive senses are covered in the current context. Moreover, an employer terminates employment not merely by passing an order as the service runs. He can do so by writing a composite order one giving employment and the other ending or limiting it. A separate, subsequent determination is not the sole magnetic pull of the provision. A preemptive provision to terminate is struck by the same vice as the post-appointment termination. Dexterity of diction cannot defeat the articulated conscience of the provision28. Section 6N of the U.P. I.D. Act which is in pari materia to s. 25N of the I.D. Act reads thus:[6-N. Condition precedent to retrenchment of workmen.- No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until,-a) the workman has been given one months notice in writing indicating the reasons for retrenchment and the period of notice has expired or the workman has been paid in lieu of such notice wages for the period of the notice;Provided that no such notice shall be necessary if the retrenchment is under an agreement which specifies the date of termination of service;b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days average pay for every completed year of service or any part thereof in excess of six months; andc) notice in the prescribed manner is served on the State Government]Evidently, the above said mandatory procedure has not been followed in the present case. Further, it has been held by this Court in the case of Anoop Sharma v. Executive Engineer, Public Health Division No. 1 Panipat [(2010) 5 SCC 497] as under:13….. no workman employed in any industry who has been in continuous service for not less than one year under an employer can be retrenched by that employer until the conditions enumerated in Clauses (a) and (b) of Section 25F of the Act are satisfied. In terms of Clause (a), the employer is required to give to the workman one months notice in writing indicating the reasons for retrenchment or pay him wages in lieu of the notice. Clause (b) casts a duty upon the employer to pay to the workman at the time of retrenchment, compensation equivalent to fifteen days average pay for every completed year of continuous service or any part thereof in excess of six months. This Court has repeatedly held that Section 25F(a) and (b) of the Act is mandatory and non-compliance thereof renders the retrenchment of an employee nullity - State of Bombay v. Hospital Mazdoor Sabha AIR 1960 SC 610 , Bombay Union of Journalists v. State of Bombay (1964) 6 SCR 22 , State Bank of India v. N. Sundara Money (1976) 1 SCC 822 , Santosh Gupta v. State Bank of Patiala (1980) 3 SCC 340 , Mohan Lal v. Management of M/s. Bharat Electronics Ltd. (1981) 3 SCC 225 , L. Robert DSouza v. Executive Engineer, Southern Railway (1982) 1 SCC 645 , Surendra Kumar Verma v. Industrial Tribunal (1980) 4 SCC 443 , Gammon India Ltd. v. Niranjan Das (1984) 1 SCC 509 , Gurmail Singh v. State of Punjab (1991) 1 SCC 189 and Pramod Jha v. State of Bihar (2003) 4 SCC 619. This Court has used different expressions for describing the consequence of terminating a workmans service/employment/ engagement by way of retrenchment without complying with the mandate of Section 25F of the Act. Sometimes it has been termed as ab initio void, sometimes as illegal per se, sometimes as nullity and sometimes as non est. Leaving aside the legal semantics, we have no hesitation to hold that termination of service of an employee by way of retrenchment without complying with the requirement of giving one months notice or pay in lieu thereof and compensation in terms of Section 25F(a) and (b) has the effect of rendering the action of the employer as nullity and the employee is entitled to continue in employment as if his service was not terminated(Emphasis laid by this Court)Therefore, in the light of the law provided in the I.D. Act and its state counterpart through the U.P. I.D. Act and also on the basis of the legal principle laid down by this Court, we hold that the termination of service of the appellant was illegal and void ab initio29. Therefore, the Labour Court was correct on factual evidence on record and legal principles laid down by this Court in catena of cases in holding that the appellant is entitled to reinstatement with all consequential benefits. Therefore, we set aside the Order of the High Court and uphold the order of the Labour Court by holding that the appellant is entitled to reinstatement in the respondent-Company30. On the issue of back wages to be awarded in favour of the appellant, it has been held by this Court in the case of Shiv Nandan Mahto v. State of Bihar & Ors. [(2013) 11 SCC 626] that if a workman is kept out of service due to the fault or mistake of the establishment/ company he was working in, then the workman is entitled to full back wages for the period he was illegally kept out of service. The relevant paragraph of the judgment reads as under:5. …. In fact, a perusal of the aforesaid short order passed by the Division Bench would clearly show that the High Court had not even acquainted itself with the fact that the Appellant was kept out of service due to a mistake. He was not kept out of service on account of suspension, as wrongly recorded by the High Court. The conclusion is, therefore, obvious that the Appellant could not have been denied the benefit of backwages on the ground that he had not worked for the period when he was illegally kept out of service. In our opinion, the Appellant was entitled to be paid full backwages for the period he was kept out of service31. Further, in General Manager, Haryana Roadways v. Rudhan Singh [(2005) 5 SCC 591] , the three Judge Bench of this Court considered the question whether back wages should be awarded to the workman in each and every case of illegal retrenchment. The relevant paragraph reads as under:There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment i.e. whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period i.e. from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriateAnother important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily-wage employment though it may be for 240 days in a calendar year32. Subsequently, in the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya [(2013) 10 SCC 324] it was held by this Court as under:The propositions which can be culled out from the aforementioned judgments are:i) In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rulevi) In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalisedIt would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited (supra).…(Emphasis laid by this Court)33. In the present case, the respondent has made a vague submission to the extent that:the conduct of the workman throughout the proceedings before the High Court during 2002 to 2011 shows that he is continuously gainfully employed somewhere. Admittedly even in the counter affidavit in the said Writ Petition, it has not been stated that the workman was not employedTherefore, on the basis of the legal principle laid down by this Court in the Deepali Gundu Surwase case (supra), the submission of the respondent that the appellant did not aver in his plaint of not being employed, does not hold since the burden of proof that the appellant is gainfully employed post termination of his service is on the respondent. The claim of the respondent that the appellant is gainfully employed somewhere is vague and cannot be considered and accepted. Therefore, we hold that the appellant is entitled to full back wages from the date of termination of his service till the date of his reinstatement34. The present case is a clear case of violation of the constitutional principles expressly mentioned in the text. Before we make our concluding findings and reasons, we wish to revisit the Harjinder Singh case (supra) which made some pertinent points as under:22. In Y.A. Mamarde v. Authority under the Minimum Wages Act, this Court, while interpreting the provisions of the Minimum Wages Act, 1948, observed: (SCC pp. 109-10)The anxiety on the part of the society for improving the general economic condition of some of its less favoured members appears to be in supersession of the old principle of absolute freedom of contract and the doctrine of laissez faire and in recognition of the new principles of social welfare and common good. Prior to our Constitution this principle was advocated by the movement for liberal employment in civilised countries and the Act which is a pre-Constitution measure was the offspring of that movement. Under our present Constitution the State is now expressly directed to endeavour to secure to all workers (whether agricultural, industrial or otherwise) not only bare physical subsistence but a living wage and conditions of work ensuring a decent standard of life and full enjoyment of leisure. This directive principle of State policy being conducive to the general interest of the nation as a whole, merely lays down the foundation for appropriate social structure in which the labour will find its place of dignity, legitimately due to it in lieu of its contribution to the progress of national economic prosperity27. In 70s, 80s and early 90s, the courts repeatedly negated the doctrine of laissez faire and the theory of hire and fire. In his treatise: Democracy, Equality and Freedom, Justice Mathew wrote:The original concept of employment was that of master and servant. It was therefore held that a court will not specifically enforce a contract of employment. The law has adhered to the age-old rule that an employer may dismiss the employee at will. Certainly, an employee can never expect to be completely free to do what he likes to do. He must face the prospect of discharge for failing or refusing to do his work in accordance with his employers directions. Such control by the employer over the employee is fundamental to the employment relationship. But there are innumerable facets of the employees life that have little or no relevance to the employment relationship and over which the employer should not be allowed to exercise control. It is no doubt difficult to draw a line between reasonable demands of an employer and those which are unreasonable as having no relation to the employment itself. The rule that an employer can arbitrarily discharge an employee with or without regard to the actuating motive is a rule settled beyond doubt. But the rule became settled at a time when the words master and servant were taken more literally than they are now and when, as in early Roman Law, the rights of the servant, like the rights of any other member of the household, were not his own, but those of his paterfamilias. The overtones of this ancient doctrine are discernible in the judicial opinion which rationalised the employers absolute right to discharge the employee. Such a philosophy of the employers dominion over his employee may have been in tune with the rustic simplicity of bygone days. But that philosophy is incompatible with these days of large, impersonal, corporate employers. The conditions have now vastly changed and it is difficult to regard the contract of employment with large-scale industries and government enterprises conducted by bodies which are created under special statutes as mere contract of personal service. Where large number of people are unemployed and it is extremely difficult to find employment, an employee who is discharged from service might have to remain without means of subsistence for a considerably long time and damages in the shape of wages for a certain period may not be an adequate compensation to the employee for non-employment. In other words, damages would be a poor substitute for reinstatement. The traditional rule has survived because of the sustenance it received from the law of contracts. From the contractual principle of mutuality of obligation, it was reasoned that if the employee can quit his job at will, then so too must the employer have the right to terminate the relationship for any or no reason. And there are a number of cases in which even contracts for permanent employment i.e. for indefinite terms, have been held unenforceable on the ground that they lack mutuality of obligation. But these cases demonstrate that mutuality is a high-sounding phrase of little use as an analytical tool and it would seem clear that mutuality of obligation is not an inexorable requirement and that lack of mutuality is simply, as many courts have come to recognise, an imperfect way of referring to the real obstacle to enforcing any kind of contractual limitation on the employers right of discharge i.e. lack of consideration. If there is anything in contract law which seems likely to advance the present inquiry, it is the growing tendency to protect individuals from contracts of adhesion from overreaching terms often found in standard forms of contract used by large commercial establishments. Judicial disfavour of contracts of adhesion has been said to reflect the assumed need to protect the weaker contracting part against the harshness of the common law and the abuses of freedom of contract. The same philosophy seems to provide an appropriate answer to the argument, which still seems to have some vitality, that the servant cannot complain, as he takes the employment on the terms which are offered to him28. In Govt. Branch Press v. D.B. Belliappa, the employer invoked the theory of hire and fire by contending that the respondents appointment was purely temporary and his service could be terminated at any time in accordance with the terms and conditions of appointment which he had voluntarily accepted. While rejecting this plea as wholly misconceived, the Court observed: (SCC p. 486, para 25)25. … It is borrowed from the archaic common law concept that employment was a matter between the master and servant only. In the first place, this rule in its original absolute form is not applicable to government servants. Secondly, even with regard to private employment, much of it has passed into the fossils of time. This rule held the field at the time when the master and servant were taken more literally than they are now and when, as in early Roman law, the rights of the servant, like the rights of any other member of the household, were not his own, but those of his paterfamilias. The overtones of this ancient doctrine are discernible in the Anglo-American jurisprudence of the 18th century and the first half of the 20th century, which rationalised the employers absolute right to discharge the employee. Such a philosophy, as pointed out by K.K. Mathew, J. (vide his treatise: Democracy, Equality and Freedom, p. 326), of the employers dominion over his employee may have been in tune with the rustic simplicity of bygone days. But that philosophy is incompatible with these days of large, impersonal, corporate employers. To bring it in tune with vastly changed and changing socio-economic conditions and mores of the day, much of this old, antiquated and unjust doctrine has been eroded by judicial decisions and legislation, particularly in its application to persons in public employment, to whom the constitutional protection of Articles 14, 15, 16 and 311 is available. The argument is therefore overruled29. The doctrine of laissez faire was again rejected in Glaxo Laboratories (I) Ltd. v. Presiding Officer, in the following words:12. In the days of laissez faire when industrial relation was governed by the harsh weighted law of hire and fire the management was the supreme master, the relationship being referable to contract between unequals and the action of the management treated almost sacrosanct. The developing notions of social justice and the expanding horizon of socio-economic justice necessitated statutory protection to the unequal partner in the industry, namely, those who invest blood and flesh against those who bring in capital. Moving from the days when whim of the employer was suprema lex, the Act took a modest step to compel by statute the employer to prescribe minimum conditions of service subject to which employment is given. The Act was enacted as its long title shows to require employers in industrial establishments to define with sufficient precision the conditions of employment under them and to make the said conditions known to workmen employed by them. The movement was from status to contract, the contract being not left to be negotiated by two unequal persons but statutorily imposed. If this socially beneficial Act was enacted for ameliorating the conditions of the weaker partner, conditions of service prescribed thereunder must receive such interpretation as to advance the intendment underlying the Act and defeat the mischief35. We therefore conclude and hold that the Labour Court was correct on legal and factual principles in reinstating the appellant along with full back wages after setting aside the order of termination. The High Court on the other hand, has erred by exceeding its jurisdiction under Article 227 of the Constitution of India in holding that the appellant has in fact, resigned by not joining his duty as a Badly worker and also awarding that retrenchment compensation to the tune of [pic]1,00,000/- will do justice to the appellant without assigning reasons which is wholly unsustainable in law36. The learned counsel for the respondent had mentioned before this Court about a settlement between the parties in this matter after the judgment was reserved. Therefore, we have not taken into consideration such plea from the learned counsel of the respondent since it was taken up after the hearing was over. Also the documentary evidence on record produced by the parties required us to reject the subsequent plea made by the respondent in this case. | 1 | 12,410 | 8,087 | ### 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.
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substitute for reinstatement. The traditional rule has survived because of the sustenance it received from the law of contracts. From the contractual principle of mutuality of obligation, it was reasoned that if the employee can quit his job at will, then so too must the employer have the right to terminate the relationship for any or no reason. And there are a number of cases in which even contracts for permanent employment i.e. for indefinite terms, have been held unenforceable on the ground that they lack mutuality of obligation. But these cases demonstrate that mutuality is a high-sounding phrase of little use as an analytical tool and it would seem clear that mutuality of obligation is not an inexorable requirement and that lack of mutuality is simply, as many courts have come to recognise, an imperfect way of referring to the real obstacle to enforcing any kind of contractual limitation on the employers right of discharge i.e. lack of consideration. If there is anything in contract law which seems likely to advance the present inquiry, it is the growing tendency to protect individuals from contracts of adhesion from overreaching terms often found in standard forms of contract used by large commercial establishments. Judicial disfavour of contracts of adhesion has been said to reflect the assumed need to protect the weaker contracting part against the harshness of the common law and the abuses of freedom of contract. The same philosophy seems to provide an appropriate answer to the argument, which still seems to have some vitality, that the servant cannot complain, as he takes the employment on the terms which are offered to him. (emphasis added) 28. In Govt. Branch Press v. D.B. Belliappa, the employer invoked the theory of hire and fire by contending that the respondents appointment was purely temporary and his service could be terminated at any time in accordance with the terms and conditions of appointment which he had voluntarily accepted. While rejecting this plea as wholly misconceived, the Court observed: (SCC p. 486, para 25) 25. … It is borrowed from the archaic common law concept that employment was a matter between the master and servant only. In the first place, this rule in its original absolute form is not applicable to government servants. Secondly, even with regard to private employment, much of it has passed into the fossils of time. This rule held the field at the time when the master and servant were taken more literally than they are now and when, as in early Roman law, the rights of the servant, like the rights of any other member of the household, were not his own, but those of his paterfamilias. The overtones of this ancient doctrine are discernible in the Anglo-American jurisprudence of the 18th century and the first half of the 20th century, which rationalised the employers absolute right to discharge the employee. Such a philosophy, as pointed out by K.K. Mathew, J. (vide his treatise: Democracy, Equality and Freedom, p. 326), of the employers dominion over his employee may have been in tune with the rustic simplicity of bygone days. But that philosophy is incompatible with these days of large, impersonal, corporate employers. To bring it in tune with vastly changed and changing socio-economic conditions and mores of the day, much of this old, antiquated and unjust doctrine has been eroded by judicial decisions and legislation, particularly in its application to persons in public employment, to whom the constitutional protection of Articles 14, 15, 16 and 311 is available. The argument is therefore overruled. 29. The doctrine of laissez faire was again rejected in Glaxo Laboratories (I) Ltd. v. Presiding Officer, in the following words: 12. In the days of laissez faire when industrial relation was governed by the harsh weighted law of hire and fire the management was the supreme master, the relationship being referable to contract between unequals and the action of the management treated almost sacrosanct. The developing notions of social justice and the expanding horizon of socio-economic justice necessitated statutory protection to the unequal partner in the industry, namely, those who invest blood and flesh against those who bring in capital. Moving from the days when whim of the employer was suprema lex, the Act took a modest step to compel by statute the employer to prescribe minimum conditions of service subject to which employment is given. The Act was enacted as its long title shows to require employers in industrial establishments to define with sufficient precision the conditions of employment under them and to make the said conditions known to workmen employed by them. The movement was from status to contract, the contract being not left to be negotiated by two unequal persons but statutorily imposed. If this socially beneficial Act was enacted for ameliorating the conditions of the weaker partner, conditions of service prescribed thereunder must receive such interpretation as to advance the intendment underlying the Act and defeat the mischief. 35. We therefore conclude and hold that the Labour Court was correct on legal and factual principles in reinstating the appellant along with full back wages after setting aside the order of termination. The High Court on the other hand, has erred by exceeding its jurisdiction under Article 227 of the Constitution of India in holding that the appellant has in fact, resigned by not joining his duty as a Badly worker and also awarding that retrenchment compensation to the tune of [pic]1,00,000/- will do justice to the appellant without assigning reasons which is wholly unsustainable in law. 36. The learned counsel for the respondent had mentioned before this Court about a settlement between the parties in this matter after the judgment was reserved. Therefore, we have not taken into consideration such plea from the learned counsel of the respondent since it was taken up after the hearing was over. Also the documentary evidence on record produced by the parties required us to reject the subsequent plea made by the respondent in this case.
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In other words, damages would be a poor substitute for reinstatement. The traditional rule has survived because of the sustenance it received from the law of contracts. From the contractual principle of mutuality of obligation, it was reasoned that if the employee can quit his job at will, then so too must the employer have the right to terminate the relationship for any or no reason. And there are a number of cases in which even contracts for permanent employment i.e. for indefinite terms, have been held unenforceable on the ground that they lack mutuality of obligation. But these cases demonstrate that mutuality is a high-sounding phrase of little use as an analytical tool and it would seem clear that mutuality of obligation is not an inexorable requirement and that lack of mutuality is simply, as many courts have come to recognise, an imperfect way of referring to the real obstacle to enforcing any kind of contractual limitation on the employers right of discharge i.e. lack of consideration. If there is anything in contract law which seems likely to advance the present inquiry, it is the growing tendency to protect individuals from contracts of adhesion from overreaching terms often found in standard forms of contract used by large commercial establishments. Judicial disfavour of contracts of adhesion has been said to reflect the assumed need to protect the weaker contracting part against the harshness of the common law and the abuses of freedom of contract. The same philosophy seems to provide an appropriate answer to the argument, which still seems to have some vitality, that the servant cannot complain, as he takes the employment on the terms which are offered to him28. In Govt. Branch Press v. D.B. Belliappa, the employer invoked the theory of hire and fire by contending that the respondents appointment was purely temporary and his service could be terminated at any time in accordance with the terms and conditions of appointment which he had voluntarily accepted. While rejecting this plea as wholly misconceived, the Court observed: (SCC p. 486, para 25)25. … It is borrowed from the archaic common law concept that employment was a matter between the master and servant only. In the first place, this rule in its original absolute form is not applicable to government servants. Secondly, even with regard to private employment, much of it has passed into the fossils of time. This rule held the field at the time when the master and servant were taken more literally than they are now and when, as in early Roman law, the rights of the servant, like the rights of any other member of the household, were not his own, but those of his paterfamilias. The overtones of this ancient doctrine are discernible in the Anglo-American jurisprudence of the 18th century and the first half of the 20th century, which rationalised the employers absolute right to discharge the employee. Such a philosophy, as pointed out by K.K. Mathew, J. (vide his treatise: Democracy, Equality and Freedom, p. 326), of the employers dominion over his employee may have been in tune with the rustic simplicity of bygone days. But that philosophy is incompatible with these days of large, impersonal, corporate employers. To bring it in tune with vastly changed and changing socio-economic conditions and mores of the day, much of this old, antiquated and unjust doctrine has been eroded by judicial decisions and legislation, particularly in its application to persons in public employment, to whom the constitutional protection of Articles 14, 15, 16 and 311 is available. The argument is therefore overruled29. The doctrine of laissez faire was again rejected in Glaxo Laboratories (I) Ltd. v. Presiding Officer, in the following words:12. In the days of laissez faire when industrial relation was governed by the harsh weighted law of hire and fire the management was the supreme master, the relationship being referable to contract between unequals and the action of the management treated almost sacrosanct. The developing notions of social justice and the expanding horizon of socio-economic justice necessitated statutory protection to the unequal partner in the industry, namely, those who invest blood and flesh against those who bring in capital. Moving from the days when whim of the employer was suprema lex, the Act took a modest step to compel by statute the employer to prescribe minimum conditions of service subject to which employment is given. The Act was enacted as its long title shows to require employers in industrial establishments to define with sufficient precision the conditions of employment under them and to make the said conditions known to workmen employed by them. The movement was from status to contract, the contract being not left to be negotiated by two unequal persons but statutorily imposed. If this socially beneficial Act was enacted for ameliorating the conditions of the weaker partner, conditions of service prescribed thereunder must receive such interpretation as to advance the intendment underlying the Act and defeat the mischief35. We therefore conclude and hold that the Labour Court was correct on legal and factual principles in reinstating the appellant along with full back wages after setting aside the order of termination. The High Court on the other hand, has erred by exceeding its jurisdiction under Article 227 of the Constitution of India in holding that the appellant has in fact, resigned by not joining his duty as a Badly worker and also awarding that retrenchment compensation to the tune of [pic]1,00,000/- will do justice to the appellant without assigning reasons which is wholly unsustainable in law36. The learned counsel for the respondent had mentioned before this Court about a settlement between the parties in this matter after the judgment was reserved. Therefore, we have not taken into consideration such plea from the learned counsel of the respondent since it was taken up after the hearing was over. Also the documentary evidence on record produced by the parties required us to reject the subsequent plea made by the respondent in this case.
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Digyadarsan Rajendra Ramdassji Varu Vs. State Of Andhra Pradesh & Anr | amount to a violation of the right guaranteed under Clause (d) of Article 26.Now under Section 47 of the Act where a mathadhipathi is under suspension the Commissioner can make such arrangement as he thinks fit for the administration of the math until another mathadhipathi succeeds to the office and in making such arrangement he has to have due regard to the claims of the disciples of the math. It is maintained on behalf of the petitioner that the appointment of Assistant Commissioner, Endowments Department, Tirupathi as the day-to-day administrator of the math and its endowment has a two-fold effect. The first is that the complete autonomy which a religious denomination like the math in question enjoys in the matter of observance of rights and ceremonies essential to the tenets of the religion has been interfered with. The second is that the right of administration has been altogether taken away from the hands of the religious denomination by vesting it in the Assistant Commissioner. This clearly contravenes the provisions of Clauses (b) and (d) of Article 26 within the rule laid down in the first Shirur Math case, 1954 SCR 1005 = (AIR 1954 SC 282 ). By doing so in exercise of the powers under Section 47 the Commissioner has also debarred the petitioner from practising and propagating religion freely which he is entitled to do under Article 25 (1).10. The attack on the ground of violation of Article 25 (1) can be disposed of quite briefly. It has nowhere been established that the petitioner has been prohibited or debarred from professing, practising and propagating his religion.A good deal of material has been placed on the record to show that the entire math is being guarded by police constables but that does not mean that the petitioner cannot be allowed to enter the math premises and exercise the fundamental right conferred by Article 25 (1) of the Constitution. As regards the contravention of Clauses (b) and (d) of Article 26, there is nothing in Sections 46 and 47 which empowers the Commissioner to interfere with the autonomy of the religious denomination in the matter of deciding as to what rights and ceremonies are essential according to the tenets of the religion the denomination professes or practises or has it has been shown that any such order has been made by the Commissioner or that the Assistant Commissioner who has been put in charge of the day-to-day affairs is interfering in such matters. Section 47 of the Act deals only with a situation where there is a temporary vacancy in the office of the mathadhipathi by reason of any dispute in regard to the right of succession to the office or the other reasons stated therein as also because the mathadhipathi has been suspended pending an inquiry under Section 46. Its provisions do not take away the right of administration from the hands of a religious denomination altogether and vest it for all times in a person or authority who is not entitled to exercise that right under the customary rule and custom prevailing in the math.In the first Shirur Math case, 1954 SCR 1005 = (AIR 1954 SC 282 ) Section 56 of the repealed Act before its amendment by Act 12 of 1954 was struck down as power had been given to the Commissioner to require the trustee to appoint a manager for the administration of the secular affairs of the institution and the Commissioner himself could also make the appointment. It was pointed out that this power could be exercised at the mere option of the Commissioner without any justifying necessity whatsoever and no pre-requisites like mismanagement of property or maladministration of trust funds were necessary to enable the trustee to exercise such drastic power. The effect of the section really was that the Commissioner was at liberty, at any moment, to deprive the Mahant of his right to administer the trust property even if there was no negligence or maladministration on his part. Such a restriction was held to be opposed to the provisions of Article 26 (d) of the Constitution. Section 47 of the Act is not in pari materia with Section 56 of the repealed Act. On the contrary Section 47 indicates quite clearly the conditions and situations in which the Commissioner can appoint someone to carry on the administration of the math and its endowments. In the present case, the Assistant Commissioner has been appointed as a day-to-day administrator because of the inquiry which is pending against the petitioner and in which serious charges of misappropriation and defalcation of trust funds and leading an immoral life are being investigated. It cannot be said that Section 47 would be hit by Article 26 (d) of the Constitution as the powers under it will be exercised, inter alia, when mismanagement of property or maladministration of trust funds are involved.11. Counsel for the petitioner has not made any serious attempt to argue that in the view that we are inclined to take there would be any contravention of Article 31 (1) of the Constitution. He has, however, pressed for the petitioner being allowed to take the Padakanulas which are receivable by the Mahant of which he will keep an account as was directed by this court when disposing of the stay petition on December 13, 1968. Counsel for the respondent agrees to this and has also agreed to keep accounts of whatever amount is spent on feeding the sadhus and on the management of the math property. He has further given an undertaking that the inquiry which is being conducted under Section 46 of the Act will be concluded within a period of three months. It may be made clear that the Assistant Commissioner who is in charge of the day-to-day administration temporarily of the math and its endowments shall be fully entitled to take necessary steps for recovery of all debts and claims which could have been recovered by the Mahant from various debtors etc. | 0[ds]10. The attack on the ground of violation of Article 25 (1) can be disposed of quite briefly. It has nowhere been established that the petitioner has been prohibited or debarred from professing, practising and propagating his religion.A good deal of material has been placed on the record to show that the entire math is being guarded by police constables but that does not mean that the petitioner cannot be allowed to enter the math premises and exercise the fundamental right conferred by Article 25 (1) of the Constitution. As regards the contravention of Clauses (b) and (d) of Article 26, there is nothing in Sections 46 and 47 which empowers the Commissioner to interfere with the autonomy of the religious denomination in the matter of deciding as to what rights and ceremonies are essential according to the tenets of the religion the denomination professes or practises or has it has been shown that any such order has been made by the Commissioner or that the Assistant Commissioner who has been put in charge of the day-to-day affairs is interfering in such matters. Section 47 of the Act deals only with a situation where there is a temporary vacancy in the office of the mathadhipathi by reason of any dispute in regard to the right of succession to the office or the other reasons stated therein as also because the mathadhipathi has been suspended pending an inquiry under Section 46. Its provisions do not take away the right of administration from the hands of a religious denomination altogether and vest it for all times in a person or authority who is not entitled to exercise that right under the customary rule and custom prevailing in the math.In the first Shirur Math case, 1954 SCR 1005 = (AIR 1954 SC 282 ) Section 56 of the repealed Act before its amendment by Act 12 of 1954 was struck down as power had been given to the Commissioner to require the trustee to appoint a manager for the administration of the secular affairs of the institution and the Commissioner himself could also make the appointment. It was pointed out that this power could be exercised at the mere option of the Commissioner without any justifying necessity whatsoever and no pre-requisites like mismanagement of property or maladministration of trust funds were necessary to enable the trustee to exercise such drastic power. The effect of the section really was that the Commissioner was at liberty, at any moment, to deprive the Mahant of his right to administer the trust property even if there was no negligence or maladministration on his part. Such a restriction was held to be opposed to the provisions of Article 26 (d) of the Constitution. Section 47 of the Act is not in pari materia with Section 56 of the repealed Act. On the contrary Section 47 indicates quite clearly the conditions and situations in which the Commissioner can appoint someone to carry on the administration of the math and its endowments. In the present case, the Assistant Commissioner has been appointed as a day-to-day administrator because of the inquiry which is pending against the petitioner and in which serious charges of misappropriation and defalcation of trust funds and leading an immoral life are being investigated. It cannot be said that Section 47 would be hit by Article 26 (d) of the Constitution as the powers under it will be exercised, inter alia, when mismanagement of property or maladministration of trust funds aremay be made clear that the Assistant Commissioner who is in charge of the day-to-day administration temporarily of the math and its endowments shall be fully entitled to take necessary steps for recovery of all debts and claims which could have been recovered by the Mahant from various debtors etc.On the question whether Ss. 46 and 47 of the Act contravene Articles 25 and 26, a good deal of reliance has been placed on the observations in the first Shirur Math case, 1954 SCR 1005 = (AIR 1954 SC 282 ). Mukherjea, J. (as he then was) delivering the judgment of the court had examined the scope of the language of Article 25 and 26.It was indicated by him that freedom of religion in our Constitution is not confined to religious beliefs only;it extends to religious practice as well subject to the restrictions which the Constitution itself has laid down. Under Article 26 (b), therefore, a religious denomination or organisation enjoys complete autonomy in the matter of deciding as to what rights and ceremonies are essential according to the tenets of the religion and no outside authority has any jurisdiction to interfere with its decision in such matters. Moreover under Article 26 (d) it is the fundamental right of a religious denomination or its representative to administer its property in accordance with law; and the law, therefore, must leave the right of administration to the religious denomination, itself subject to such restrictions and regulations as it might choose to impose. It was further laid down that a law which takes away the right of administration from the hands of a religious denomination altogether and vests it in any other authority amount to a violation of the right guaranteed under Clause (d) of Article 26.Now under Section 47 of the Act where a mathadhipathi is under suspension the Commissioner can make such arrangement as he thinks fit for the administration of the math until another mathadhipathi succeeds to the office and in making such arrangement he has to have due regard to the claims of the disciples of the math. Itis maintained on behalf of the petitioner that the appointment of Assistant Commissioner, Endowments Department, Tirupathi as theadministrator of the math and its endowment has aeffect. The first is that the complete autonomy which a religious denomination like the math in question enjoys in the matter of observance of rights and ceremonies essential to the tenets of the religion has been interfered with. The second is that the right of administration has been altogether taken away from the hands of the religious denomination by vesting it in the AssistantCommissioner. This clearly contravenes the provisions of Clauses (b) and (d) of Article 26 within the rule laid down in the first Shirur Math case, 1954 SCR 1005 = (AIR 1954 SC 282 ). By doing so in exercise of the powers under Section 47 the Commissioner has also debarred the petitioner from practising and propagating religion freely which he is entitled to do under Article 25 (1). | 0 | 5,318 | 1,168 | ### 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:
amount to a violation of the right guaranteed under Clause (d) of Article 26.Now under Section 47 of the Act where a mathadhipathi is under suspension the Commissioner can make such arrangement as he thinks fit for the administration of the math until another mathadhipathi succeeds to the office and in making such arrangement he has to have due regard to the claims of the disciples of the math. It is maintained on behalf of the petitioner that the appointment of Assistant Commissioner, Endowments Department, Tirupathi as the day-to-day administrator of the math and its endowment has a two-fold effect. The first is that the complete autonomy which a religious denomination like the math in question enjoys in the matter of observance of rights and ceremonies essential to the tenets of the religion has been interfered with. The second is that the right of administration has been altogether taken away from the hands of the religious denomination by vesting it in the Assistant Commissioner. This clearly contravenes the provisions of Clauses (b) and (d) of Article 26 within the rule laid down in the first Shirur Math case, 1954 SCR 1005 = (AIR 1954 SC 282 ). By doing so in exercise of the powers under Section 47 the Commissioner has also debarred the petitioner from practising and propagating religion freely which he is entitled to do under Article 25 (1).10. The attack on the ground of violation of Article 25 (1) can be disposed of quite briefly. It has nowhere been established that the petitioner has been prohibited or debarred from professing, practising and propagating his religion.A good deal of material has been placed on the record to show that the entire math is being guarded by police constables but that does not mean that the petitioner cannot be allowed to enter the math premises and exercise the fundamental right conferred by Article 25 (1) of the Constitution. As regards the contravention of Clauses (b) and (d) of Article 26, there is nothing in Sections 46 and 47 which empowers the Commissioner to interfere with the autonomy of the religious denomination in the matter of deciding as to what rights and ceremonies are essential according to the tenets of the religion the denomination professes or practises or has it has been shown that any such order has been made by the Commissioner or that the Assistant Commissioner who has been put in charge of the day-to-day affairs is interfering in such matters. Section 47 of the Act deals only with a situation where there is a temporary vacancy in the office of the mathadhipathi by reason of any dispute in regard to the right of succession to the office or the other reasons stated therein as also because the mathadhipathi has been suspended pending an inquiry under Section 46. Its provisions do not take away the right of administration from the hands of a religious denomination altogether and vest it for all times in a person or authority who is not entitled to exercise that right under the customary rule and custom prevailing in the math.In the first Shirur Math case, 1954 SCR 1005 = (AIR 1954 SC 282 ) Section 56 of the repealed Act before its amendment by Act 12 of 1954 was struck down as power had been given to the Commissioner to require the trustee to appoint a manager for the administration of the secular affairs of the institution and the Commissioner himself could also make the appointment. It was pointed out that this power could be exercised at the mere option of the Commissioner without any justifying necessity whatsoever and no pre-requisites like mismanagement of property or maladministration of trust funds were necessary to enable the trustee to exercise such drastic power. The effect of the section really was that the Commissioner was at liberty, at any moment, to deprive the Mahant of his right to administer the trust property even if there was no negligence or maladministration on his part. Such a restriction was held to be opposed to the provisions of Article 26 (d) of the Constitution. Section 47 of the Act is not in pari materia with Section 56 of the repealed Act. On the contrary Section 47 indicates quite clearly the conditions and situations in which the Commissioner can appoint someone to carry on the administration of the math and its endowments. In the present case, the Assistant Commissioner has been appointed as a day-to-day administrator because of the inquiry which is pending against the petitioner and in which serious charges of misappropriation and defalcation of trust funds and leading an immoral life are being investigated. It cannot be said that Section 47 would be hit by Article 26 (d) of the Constitution as the powers under it will be exercised, inter alia, when mismanagement of property or maladministration of trust funds are involved.11. Counsel for the petitioner has not made any serious attempt to argue that in the view that we are inclined to take there would be any contravention of Article 31 (1) of the Constitution. He has, however, pressed for the petitioner being allowed to take the Padakanulas which are receivable by the Mahant of which he will keep an account as was directed by this court when disposing of the stay petition on December 13, 1968. Counsel for the respondent agrees to this and has also agreed to keep accounts of whatever amount is spent on feeding the sadhus and on the management of the math property. He has further given an undertaking that the inquiry which is being conducted under Section 46 of the Act will be concluded within a period of three months. It may be made clear that the Assistant Commissioner who is in charge of the day-to-day administration temporarily of the math and its endowments shall be fully entitled to take necessary steps for recovery of all debts and claims which could have been recovered by the Mahant from various debtors etc.
### Response:
0
### Explanation:
and (d) of Article 26, there is nothing in Sections 46 and 47 which empowers the Commissioner to interfere with the autonomy of the religious denomination in the matter of deciding as to what rights and ceremonies are essential according to the tenets of the religion the denomination professes or practises or has it has been shown that any such order has been made by the Commissioner or that the Assistant Commissioner who has been put in charge of the day-to-day affairs is interfering in such matters. Section 47 of the Act deals only with a situation where there is a temporary vacancy in the office of the mathadhipathi by reason of any dispute in regard to the right of succession to the office or the other reasons stated therein as also because the mathadhipathi has been suspended pending an inquiry under Section 46. Its provisions do not take away the right of administration from the hands of a religious denomination altogether and vest it for all times in a person or authority who is not entitled to exercise that right under the customary rule and custom prevailing in the math.In the first Shirur Math case, 1954 SCR 1005 = (AIR 1954 SC 282 ) Section 56 of the repealed Act before its amendment by Act 12 of 1954 was struck down as power had been given to the Commissioner to require the trustee to appoint a manager for the administration of the secular affairs of the institution and the Commissioner himself could also make the appointment. It was pointed out that this power could be exercised at the mere option of the Commissioner without any justifying necessity whatsoever and no pre-requisites like mismanagement of property or maladministration of trust funds were necessary to enable the trustee to exercise such drastic power. The effect of the section really was that the Commissioner was at liberty, at any moment, to deprive the Mahant of his right to administer the trust property even if there was no negligence or maladministration on his part. Such a restriction was held to be opposed to the provisions of Article 26 (d) of the Constitution. Section 47 of the Act is not in pari materia with Section 56 of the repealed Act. On the contrary Section 47 indicates quite clearly the conditions and situations in which the Commissioner can appoint someone to carry on the administration of the math and its endowments. In the present case, the Assistant Commissioner has been appointed as a day-to-day administrator because of the inquiry which is pending against the petitioner and in which serious charges of misappropriation and defalcation of trust funds and leading an immoral life are being investigated. It cannot be said that Section 47 would be hit by Article 26 (d) of the Constitution as the powers under it will be exercised, inter alia, when mismanagement of property or maladministration of trust funds aremay be made clear that the Assistant Commissioner who is in charge of the day-to-day administration temporarily of the math and its endowments shall be fully entitled to take necessary steps for recovery of all debts and claims which could have been recovered by the Mahant from various debtors etc.On the question whether Ss. 46 and 47 of the Act contravene Articles 25 and 26, a good deal of reliance has been placed on the observations in the first Shirur Math case, 1954 SCR 1005 = (AIR 1954 SC 282 ). Mukherjea, J. (as he then was) delivering the judgment of the court had examined the scope of the language of Article 25 and 26.It was indicated by him that freedom of religion in our Constitution is not confined to religious beliefs only;it extends to religious practice as well subject to the restrictions which the Constitution itself has laid down. Under Article 26 (b), therefore, a religious denomination or organisation enjoys complete autonomy in the matter of deciding as to what rights and ceremonies are essential according to the tenets of the religion and no outside authority has any jurisdiction to interfere with its decision in such matters. Moreover under Article 26 (d) it is the fundamental right of a religious denomination or its representative to administer its property in accordance with law; and the law, therefore, must leave the right of administration to the religious denomination, itself subject to such restrictions and regulations as it might choose to impose. It was further laid down that a law which takes away the right of administration from the hands of a religious denomination altogether and vests it in any other authority amount to a violation of the right guaranteed under Clause (d) of Article 26.Now under Section 47 of the Act where a mathadhipathi is under suspension the Commissioner can make such arrangement as he thinks fit for the administration of the math until another mathadhipathi succeeds to the office and in making such arrangement he has to have due regard to the claims of the disciples of the math. Itis maintained on behalf of the petitioner that the appointment of Assistant Commissioner, Endowments Department, Tirupathi as theadministrator of the math and its endowment has aeffect. The first is that the complete autonomy which a religious denomination like the math in question enjoys in the matter of observance of rights and ceremonies essential to the tenets of the religion has been interfered with. The second is that the right of administration has been altogether taken away from the hands of the religious denomination by vesting it in the AssistantCommissioner. This clearly contravenes the provisions of Clauses (b) and (d) of Article 26 within the rule laid down in the first Shirur Math case, 1954 SCR 1005 = (AIR 1954 SC 282 ). By doing so in exercise of the powers under Section 47 the Commissioner has also debarred the petitioner from practising and propagating religion freely which he is entitled to do under Article 25 (1).
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Auto Tractors Limited, Pratapgarh Vs. Collector Of Customs (Appeal), Bombay | Notification No. 81/81 and 82/81 both dated 28.3.1981." 3. This supersedes the earlier duty concession certificate issued by this office vide Notification No. 179/F. No. 370/99/79-Cus. I dated 4.9.1980 under this office letter No. DD-II/5(49)/79 Ag dated 16.1.1981."These amended certificates were also produced before the Customs authorities.4. The assessees prayer for refund was however rejected by the Assistant Collector of Customs on the ground that the assessee had failed to produce "end-use" certificates. The assessees appeals to the Collector of Customs (Appeals) also failed. There were further appeals to the Customs, Excise and Gold (Control) Appellate Tribunal, which by its order dated 23.10.1987, dismissed the appeals of the Appellants and hence the present appeals. 5. The Tribunal disposed of the assessees claim by a short order. It observed that the Notification No. 200/79 entitled an assessee to the concessions therein mentioned on the fulfilment of three conditions : (i) A manufacturing programme as duly approved by the Director General of Technical Development (D.G.T.D.) should be produced at the time of clearance of the goods;(ii) The list of components and goods should be produced duly certified by the D.G.T.D.; and(iii) An Enduse certificate from the same Directorate to be produced in due course in regard to the consumption of goods in the manufacture of the motor vehicles or tractors, etc. The Tribunal proceeded to observe : "The first statutory condition of the notification that the manufacturing programme of the appellants as approved by the D.G.T.D. should have been produced before the Assistant Collector at the time of clearance of the goods was not fulfilled by the appellants. As a matter of fact at the time of clearance of the goods there was no claim even by the appellants under Notification Nos. 200 and 201/79- Cus. Their claim at that time under a different Notification No. 179/80-Cus. which contained no requirement to produce an approved manufacturing programme. Since the statutory wording of the notification made it imperative for the appellants that the approved manufacturing programme should have been produced at the time of clearance and since this condition was not fulfilled, the entitlement of the appellants to the exemption is not accepted.5. The approved manufacturing programme was available all along with the appellants yet they did not produce it at the time of clearance before the Assistant Collector." 6. We have heard the learned counsel for the appellant as well as learned Additional Solicitor General and we are of the opinion that the Tribunal has erred in denying the appellant the benefit of the Notification No. 200 of 1979. This notification made the availability of the concession thereunder subject to three conditions of which one alone is relevant for our purposes. The Tribunal though that this condition was that the the approved manufacturing programme should have been produced at the time of clearance and it has denied the assessee the benefit of the concession, even though satisfied that the approved manufacturing programme was all along available with the assessee, because such programme was not produced at the time of the clearance. The Tribunal has committed an errors in its reading of the relevant condition of the notification. The condition is not that the manufacturing programme should be produced but that "the importer should produce evidence to the Assistant Collector of Customs at the time of clearance of the components or the goods that they have a programme duly approved by the Ministry of Industry and the Industrial Adviser or Additional Industrial Adviser of the Directorate General of Technical Development of the Ministry of Industry for the manufacture of such motor vehicles..... or of tractors". In other words, the importer had only to satisfy the customs authorities that it had an approved industrial programme for the manufacture of tractors by production of a certificate from the DGTD. It is indeed common ground before us that the second set of certificates issued by the DGTD constitutes sufficient evidence that would entitle the appellant to the concession under Notification No. 200/1979. But the argument is that the amended certificates were produced not at the time of the clearance of the goods but only much later and that therefore the appellant is not entitled to the concession under the said notification. There is a fallacy in this approach, for, even ignoring the subsequent amendment of the certificates, we are of the opinion that the production of the original set of certificates at the time of clearance of the goods was sufficient compliance with the terms of the notification in question. We have extracted the terms of this certificate earlier. It is an unequivocal certificate by the DGTD that the appellant holds a valid industrial licence for the manufacture of agricultural tractors and that it is also has an approved manufacturing programme. This is all the second set also says. There is therefore no doubt that the assessee had produced evidence, in the form of the said certificate, of the fact that the appellant had an approved industrial programme. This was the only requirement of the notification and this requirement has, in our opinion, been complied with. The further words in the first set of certificates that the assessee was eligible for the concession under of the 1980 notification were mere surplusage. The omission of the assessee to request the DGTD to refer to the assessees entitlement under the 1979 notification or the omission of the DGTD to refer to the assessees entitlement under the 1979 notification cannot take away the assessees rights. The grant concession depends on a certificate that the assessee had an approved manufacturing programme - which is there - and not the reference therein to the notifications that can be availed of by the assessee. 7. We are therefore of the opinion that the order of the Tribunal should be set aside and that the assessee should be held entitled, in respect of the three consignments referred to earlier, to the concession available under Notification No. 200 of 79. 8. We direct accordingly. | 1[ds]There is a fallacy in this approach, for, even ignoring the subsequent amendment of the certificates, we are of the opinion that the production of the original set of certificates at the time of clearance of the goods was sufficient compliance with the terms of the notification in question. We have extracted the terms of this certificate earlier. It is an unequivocal certificate by the DGTD that the appellant holds a valid industrial licence for the manufacture of agricultural tractors and that it is also has an approved manufacturing programme. This is all the second set also says. There is therefore no doubt that the assessee had produced evidence, in the form of the said certificate, of the fact that the appellant had an approved industrial programme. This was the only requirement of the notification and this requirement has, in our opinion, been complied with. The further words in the first set of certificates that the assessee was eligible for the concession under of the 1980 notification were mere surplusage. The omission of the assessee to request the DGTD to refer to the assessees entitlement under the 1979 notification or the omission of the DGTD to refer to the assessees entitlement under the 1979 notification cannot take away the assessees rights. The grant concession depends on a certificate that the assessee had an approved manufacturing programme - which is there - and not the reference therein to the notifications that can be availed of by the assessee.We are therefore of the opinion that the order of the Tribunal should be set aside and that the assessee should be held entitled, in respect of the three consignments referred to earlier, to the concession available under Notification No. 200 of 79.We direct accordingly. The appeals are allowed but having regard to the circumstances we make no order as to costs. | 1 | 1,825 | 333 | ### 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:
Notification No. 81/81 and 82/81 both dated 28.3.1981." 3. This supersedes the earlier duty concession certificate issued by this office vide Notification No. 179/F. No. 370/99/79-Cus. I dated 4.9.1980 under this office letter No. DD-II/5(49)/79 Ag dated 16.1.1981."These amended certificates were also produced before the Customs authorities.4. The assessees prayer for refund was however rejected by the Assistant Collector of Customs on the ground that the assessee had failed to produce "end-use" certificates. The assessees appeals to the Collector of Customs (Appeals) also failed. There were further appeals to the Customs, Excise and Gold (Control) Appellate Tribunal, which by its order dated 23.10.1987, dismissed the appeals of the Appellants and hence the present appeals. 5. The Tribunal disposed of the assessees claim by a short order. It observed that the Notification No. 200/79 entitled an assessee to the concessions therein mentioned on the fulfilment of three conditions : (i) A manufacturing programme as duly approved by the Director General of Technical Development (D.G.T.D.) should be produced at the time of clearance of the goods;(ii) The list of components and goods should be produced duly certified by the D.G.T.D.; and(iii) An Enduse certificate from the same Directorate to be produced in due course in regard to the consumption of goods in the manufacture of the motor vehicles or tractors, etc. The Tribunal proceeded to observe : "The first statutory condition of the notification that the manufacturing programme of the appellants as approved by the D.G.T.D. should have been produced before the Assistant Collector at the time of clearance of the goods was not fulfilled by the appellants. As a matter of fact at the time of clearance of the goods there was no claim even by the appellants under Notification Nos. 200 and 201/79- Cus. Their claim at that time under a different Notification No. 179/80-Cus. which contained no requirement to produce an approved manufacturing programme. Since the statutory wording of the notification made it imperative for the appellants that the approved manufacturing programme should have been produced at the time of clearance and since this condition was not fulfilled, the entitlement of the appellants to the exemption is not accepted.5. The approved manufacturing programme was available all along with the appellants yet they did not produce it at the time of clearance before the Assistant Collector." 6. We have heard the learned counsel for the appellant as well as learned Additional Solicitor General and we are of the opinion that the Tribunal has erred in denying the appellant the benefit of the Notification No. 200 of 1979. This notification made the availability of the concession thereunder subject to three conditions of which one alone is relevant for our purposes. The Tribunal though that this condition was that the the approved manufacturing programme should have been produced at the time of clearance and it has denied the assessee the benefit of the concession, even though satisfied that the approved manufacturing programme was all along available with the assessee, because such programme was not produced at the time of the clearance. The Tribunal has committed an errors in its reading of the relevant condition of the notification. The condition is not that the manufacturing programme should be produced but that "the importer should produce evidence to the Assistant Collector of Customs at the time of clearance of the components or the goods that they have a programme duly approved by the Ministry of Industry and the Industrial Adviser or Additional Industrial Adviser of the Directorate General of Technical Development of the Ministry of Industry for the manufacture of such motor vehicles..... or of tractors". In other words, the importer had only to satisfy the customs authorities that it had an approved industrial programme for the manufacture of tractors by production of a certificate from the DGTD. It is indeed common ground before us that the second set of certificates issued by the DGTD constitutes sufficient evidence that would entitle the appellant to the concession under Notification No. 200/1979. But the argument is that the amended certificates were produced not at the time of the clearance of the goods but only much later and that therefore the appellant is not entitled to the concession under the said notification. There is a fallacy in this approach, for, even ignoring the subsequent amendment of the certificates, we are of the opinion that the production of the original set of certificates at the time of clearance of the goods was sufficient compliance with the terms of the notification in question. We have extracted the terms of this certificate earlier. It is an unequivocal certificate by the DGTD that the appellant holds a valid industrial licence for the manufacture of agricultural tractors and that it is also has an approved manufacturing programme. This is all the second set also says. There is therefore no doubt that the assessee had produced evidence, in the form of the said certificate, of the fact that the appellant had an approved industrial programme. This was the only requirement of the notification and this requirement has, in our opinion, been complied with. The further words in the first set of certificates that the assessee was eligible for the concession under of the 1980 notification were mere surplusage. The omission of the assessee to request the DGTD to refer to the assessees entitlement under the 1979 notification or the omission of the DGTD to refer to the assessees entitlement under the 1979 notification cannot take away the assessees rights. The grant concession depends on a certificate that the assessee had an approved manufacturing programme - which is there - and not the reference therein to the notifications that can be availed of by the assessee. 7. We are therefore of the opinion that the order of the Tribunal should be set aside and that the assessee should be held entitled, in respect of the three consignments referred to earlier, to the concession available under Notification No. 200 of 79. 8. We direct accordingly.
### Response:
1
### Explanation:
There is a fallacy in this approach, for, even ignoring the subsequent amendment of the certificates, we are of the opinion that the production of the original set of certificates at the time of clearance of the goods was sufficient compliance with the terms of the notification in question. We have extracted the terms of this certificate earlier. It is an unequivocal certificate by the DGTD that the appellant holds a valid industrial licence for the manufacture of agricultural tractors and that it is also has an approved manufacturing programme. This is all the second set also says. There is therefore no doubt that the assessee had produced evidence, in the form of the said certificate, of the fact that the appellant had an approved industrial programme. This was the only requirement of the notification and this requirement has, in our opinion, been complied with. The further words in the first set of certificates that the assessee was eligible for the concession under of the 1980 notification were mere surplusage. The omission of the assessee to request the DGTD to refer to the assessees entitlement under the 1979 notification or the omission of the DGTD to refer to the assessees entitlement under the 1979 notification cannot take away the assessees rights. The grant concession depends on a certificate that the assessee had an approved manufacturing programme - which is there - and not the reference therein to the notifications that can be availed of by the assessee.We are therefore of the opinion that the order of the Tribunal should be set aside and that the assessee should be held entitled, in respect of the three consignments referred to earlier, to the concession available under Notification No. 200 of 79.We direct accordingly. The appeals are allowed but having regard to the circumstances we make no order as to costs.
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State Of Punjab Vs. Modern Cultivators, Ladwa | the trial Court.4. In its appeal the State of Punjab first contended that the plaintiff could not succeed as it had failed to prove that the breach had been caused by the defendants negligence. I am unable to accept this contention. The trial Court inferred negligence against the defendant as it had failed to produce the relevant documents and with this view I agree. The defendant had produced no documents to show how the breach was caused. I had been asked by the trial Court to do so by an order made on May 12, 1949 but failed to produce them. The defendant had a large number of canal officers and according to Mr. Malhotra, the Executive Engineer in charge of the canal at the relevant time there was a regular office and various reports concerning the breach had been made. None of these was produced at the hearing. It is obvious that in an organisation like the canal office, reports and other documents must have been kept to show how the breach occurred and what was done to stop it. If such documents are not produced an inference can be legitimately made that if produced, they would have gone against the case of the defendant, that is they would have proved that the defendant had been negligint cp. Murugesam Pillai v. Gnansambhandha Pandara Sannadhi, 44 Ind App 98 : (AIR 1917 PC 6). It was suggested in this Court that the documents had been destroyed. It may be that they are now destroyed. One of the defendants officers called by the High Court in view of the unsatisfactory nature of the documentary evidence said that documents were destroyed after three to seven years. The breach occurred in August 1947, the suit was filed in October 1948 and the trial was held about August 1949. So it would appear that at the time of the trial the relevant documents had not been destroyed. Nor was it said that they had then been destroyed. Furthermore, in view of the pendency of the suit the documents must have been preserved. It is clear that they had not been produced deliberately. An inference that the defendant was neligent in the management of the canal arises from the non-production of the documents. There is, therefore, evidence that the defendant was neligent.5. Furthermore it seems to me that the rule of res ipsa loqitur applies to this case. The canal was admittedly in the management of the defendant and canal banks art not breached if those in management take proper care. In such cases the rule would apply and the breach itself would be prima facie proof of negligence : see Scott v. London Dock Co.,(1865) 3 H and C 596 (601). No doubt the defendant can show that the breach was due to act of God or to act of a third party or any other thing which would show that it had not been negligent, but it did not do so. It may be that the rule of res ipsa loquitor may not apply where it is known how the thing which caused the damage happened as was held in Barkway v. South Wales Transport Co. Ltd., 1950-1 All ER 392. But that is not the case here. No reason has been advanced why the rule should not apply. Therefore I think that the first contention of the defendant that there is no evidence of negligence must be rejected.6. I do not think it necessary in the present case to consider whether the rule in Rylands v. Fletcher, (1868) 3 HL 330 applies to make the defendant liable for I have already held that it is liable as negligence has been proved.7. The second point raised by the defendant was one of limitation. It was contended on behalf of the defendant that the case was governed by Art. 2 of the first schedule of the Limitation Act. It is not in dispute that if that article applied, the suit would be out of time. That article relates to a suit "for compensation for doing or omitting to do an act alleged to be in pursuance of any enactment". It was said that the Northern India Canal and Drainage Act, 1873 imposed a duty on the defendant to take care of the canal banks and its failure to do so was the omission to do an act in pursuance of an enactment within the article. I have very grave doubt if this interpretation of Art. 2 is correct. There is authority against it : see Mohammad Sadaat Ali Khan v. Administrator Corporation of City of Lahore, ILR (1945) 26 Lah 523 : (AIR l945 Lah 324) (FB). But apart from that I find nothing in the Canal Act imposing any duty on the defendant to take care of the banks. We were referred to Ss. 6 and 15 of that Act. Both are enabling sections giving power to the State Government to do certain acts. Under S. 6 it has power to enter on any land and remove any obstruction and close any channels or do any other thing necessary for the application or use of the water to be taken into the canal. This obviously does not impose any duty in connection with the canal bank. Section 15 gives the power to the canal authorities in case of accident happening or being apprehended to a canal to enter upon lands of others and to do all things necessary to repair the accident or prevent it. This section again has nothing to do with taking care of the canal banks. Therefore, even assuming that the defendants interpretation of Art. 2 is correct, this is not a case to which it may apply. I wish however to make it clear that nothing that I have said here is to be read as in any way approving the defendants interpretation of Art. 2. Therefore the defendants contention that the suit was barred by limitation also fails. | 0[ds]3. In regard to the appeal by the Modern cultivators I have nothing to add to what has been said by Hidayatullah J. For the reasons mentioned by him I agree that the damages had been correctly assessed by the trialam unable to accept this contention. The trial Court inferred negligence against the defendant as it had failed to produce the relevant documents and with this view I agree. The defendant had produced no documents to show how the breach was caused. I had been asked by the trial Court to do so by an order made on May 12, 1949 but failed to produce them. The defendant had a large number of canal officers and according to Mr. Malhotra, the Executive Engineer in charge of the canal at the relevant time there was a regular office and various reports concerning the breach had been made. None of these was produced at the hearing. It is obvious that in an organisation like the canal office, reports and other documents must have been kept to show how the breach occurred and what was done to stop it. If such documents are not produced an inference can be legitimately made that if produced, they would have gone against the case of the defendant, that is they would have proved that the defendant had been negligint cp. Murugesam Pillai v. Gnansambhandha Pandara Sannadhi, 44 Ind App 98 : (AIR 1917 PC 6). It was suggested in this Court that the documents had been destroyed. It may be that they are now destroyed. One of the defendants officers called by the High Court in view of the unsatisfactory nature of the documentary evidence said that documents were destroyed after three to seven years. The breach occurred in August 1947, the suit was filed in October 1948 and the trial was held about August 1949. So it would appear that at the time of the trial the relevant documents had not been destroyed. Nor was it said that they had then been destroyed. Furthermore, in view of the pendency of the suit the documents must have been preserved. It is clear that they had not been produced deliberately. An inference that the defendant was neligent in the management of the canal arises from theof the documents. There is, therefore, evidence that the defendant was neligent.5. Furthermore it seems to me that the rule of res ipsa loqitur applies to this case. The canal was admittedly in the management of the defendant and canal banks art not breached if those in management take proper care. In such cases the rule would apply and the breach itself would be prima facie proof of negligence : see Scott v. London Dock Co.,(1865) 3 H and C 596 (601). No doubt the defendant can show that the breach was due to act of God or to act of a third party or any other thing which would show that it had not been negligent, but it did not do so. It may be that the rule of res ipsa loquitor may not apply where it is known how the thing which caused the damage happened as was held in Barkway v. South Wales Transport Co. Ltd.,All ER 392. But that is not the case here. No reason has been advanced why the rule should not apply. Therefore I think that the first contention of the defendant that there is no evidence of negligence must be rejected.6. I do not think it necessary in the present case to consider whether the rule in Rylands v. Fletcher, (1868) 3 HL 330 applies to make the defendant liable for I have already held that it is liable as negligence has beenis not in dispute that if that article applied, the suit would be out of time. That article relates to a suit "for compensation for doing or omitting to do an act alleged to be in pursuance of any enactment". It was said that the Northern India Canal and Drainage Act, 1873 imposed a duty on the defendant to take care of the canal banks and its failure to do so was the omission to do an act in pursuance of an enactment within the article. I have very grave doubt if this interpretation of Art. 2 is correct. There is authority against it : see Mohammad Sadaat Ali Khan v. Administrator Corporation of City of Lahore, ILR (1945) 26 Lah 523 : (AIR l945 Lah 324) (FB). But apart from that I find nothing in the Canal Act imposing any duty on the defendant to take care of the banks. We were referred to Ss. 6 and 15 of that Act. Both are enabling sections giving power to the State Government to do certain acts. Under S. 6 it has power to enter on any land and remove any obstruction and close any channels or do any other thing necessary for the application or use of the water to be taken into the canal. This obviously does not impose any duty in connection with the canal bank. Section 15 gives the power to the canal authorities in case of accident happening or being apprehended to a canal to enter upon lands of others and to do all things necessary to repair the accident or prevent it. This section again has nothing to do with taking care of the canal banks. Therefore, even assuming that the defendants interpretation of Art. 2 is correct, this is not a case to which it may apply. I wish however to make it clear that nothing that I have said here is to be read as in any way approving the defendants interpretation of Art. 2. Therefore the defendants contention that the suit was barred by limitation alsoon behalf of the plaintiff established that water continued pouring out as late as the month of October. This was apparently an exaggeration. There is no evidence to show that the flow of water in the canal was reduced from thewhen the breach occurred. It apparently continued on full supply. The High Court attempted to secure the documents from the Canal Office which had not been produced earlier. The Executive Engineer, then in charge was summoned to bring all the papers in his office and he produced the telegrams received by and copies of telegrams issued from the head office between August 16, 1947 and September 5, 1947. From these documents it is now established that the breach was not repaired at least up to August 27, 1947 and the evidence that it was repaired on the 18th was therefore not accurate. It has also been established that the case of the plaintiff that water continued to flow right up to October was also false. It may thus be assumed that repairs were completed by the 27th August but notis obvious that the crop must have been entirely destroyed and the allowance of 1/4 was because the destroyed crop had some value as chari. On the facts, as found, there was hardly any justification for reducing the amount of the decree for damages passed by the court of first instance. The High Court itself, in more than one place, stated in its judgment that the maize and urud crops were completely destroyed. It is, therefore, clear that unless Government succeeds in its appeal the decree of the court of first instance must be restored in this case. Mr. Vishwanatha Sastri on behalf of Government asked for a remit, but in view of the slight difference and the fact that the High Court itself remarked that the maize and urud crops were completely destroyed there would not be any necessity to order a remit in case the appeal of the Government fails. I shall now turn to thatprinciple which I consider reasonable to apply where fault has to be inferred from circumstances was best stated by Lord Porter and I respectfully adopt it. Speaking of res ipsa loquitur it was observed by Lord Porter inAll ER 392 at pp. 394,doctrine is independent on the absence of explanation, and, although it is the duty of the defendants, if they desire to protect themselves, to give an adequate explanation of the cause of the accident, yet, if the facts are sufficiently known, the question ceases to be one where the facts speak for themselves, and the solution is to be found by determining whether, on the facts as established, negligence is to be inferred or not.I have made these observations so that the principle may not be applied too liberally. It must also be remembered that what is said in relation to it in one case cannot indiscriminately be applied to another case. It should not be applied as legal rule but only as an aid to an inference when it is reasonable to think that there are no further facts tois thus sufficient evidence, in the absence of reasonable explanation (which there is not), to establish negligence. Further, there was inordinate delay and negligence in sealing the breach. Even the flow in the canal was not reduced for repairs to be carried out quickly. In such circumstances, the facts prove negligence and government was rightly held responsible. Whether the defect was patent or latent is not much to the purpose. It was not an inevitable accident, and the Government must be held liable.In regard to section 6 it is sufficient to say that it has no application here. It refers to the day named in S. 5 and that section provides for a notification to be issued declaring that water would be applied after a particular date for purpose of any existing or projected canal or drainage work or for purposes of Government. On such notification issuing any Canal Officer, acting under the order of the State Government, may enter on any land and remove obstructions or close any channels so that water may be applied to those purposes. This is an entirely different matter and it is no wonder that Mr. Vishwanatha Sastri did not rely upon S. 6.24. Section 15 no doubt confers a power to enter lands and property of others to effect repairs or to prevent accidents. One can hardly dispute that it is the normal duty of canal authorities to make repairs and execute works, to prevent accidents. But Art. 2 cannot apply to omissions in following the statutory duties because it cannot be suggested that they are in pursuance of any enactment. Cases of malfeasance, misfeasance ormay or may not have statutory protection. Act or omission which can claim statutory protection or is alleged to be in pursuance of a statutory command may attract Art. 2 but the act or omission must be one which can be said to be in pursuance of an enactment. Here the suit was for compensation for damages consequent on a break in the canal on August 15, 1947. The only act or omission could be the opening and closing of the channel for silting operations. That was before June 1946. The third column of Art. 2 provides the start of the limitation of 90 days "when the act or omission takes place." The period of limitation in this case would be over even before the injury if that were the startingto the presence of the words "purporting or professing to be done in pursuance of this Act" and observed that they regarded the words as of pivotal importance and that their presence postulated that work which is not done in pursuance of the statute may nevertheless be accorded its protection if the work professes or purports to be done in pursuance of the statute". But they were giving protection to an act which could legitimately claim to be in pursuance of the Port Act. Here the break in the bank was not that kind of act or omission. It could not claim to be in pursuance of the Canal Act. Nor could the opening or closing of the channel for silting operations, though in pursuance of the Canal Act, be the relevant act or omission because they were more than a year before the cause of action and to apply a limitation of 96 days to that cause of action is not only impossible but also absurd. Art. 2, therefore, does not apply here.I wish to add nothing with regard to the plaintiffs appeal to what has been said by my brother Hidayatullah nor to what he or my brother Sarkar had said regarding the question of limitation raised on behalf of the defendant. They have both held that Art. 2 of the Limitation Act is not attracted to a case like the present where the damages sustained by the plaintiff are not the result of anything done by the State in pursuance of a statutory power exercised by it or by reason of an act which could properly be said to have been performed in the purported exercise of a statutory power. If Art. 2 is out of the way, it is not disputed on behalf of the State that the suit will be within time.The sole ground upon which the liability of the State could be established in this case would be negligence of the State in properly maintaining the banks of the canal. For this purpose it would be relevant to consider whether there were periodical inspections, whether any breaches or the development of cracks were noticed along the banks of the canal and in particular at the place where the breach ultimately occurred or whether any erosion of the banks particularly at place where one of the banks had been plugged had been noticed and no action or timely action had been taken thereon. There is evidence to show that the canals were being regularly inspected. That, however, is not the end of the matter. Immediately after the breach occurred some reports were made and as pointed out by my brethren in their judgments they were not placed before the court despite its order requiring their production. When the matter went up before the High Court it was said that the records had been destroyed in the year 1958 or so and therefore they could not be furnished. This action on the part of the State is manifestly unreasonable and the legitimate inference that could be drawn from it is that if the documents had been produced they would have gone against the State and would establish its negligence. In these circumstances I would hold that though the plaintiffs have been enabled to adduce positive evidence of negligence it could legitimately be presumed that the State was negligence inasmuch as it had deliberately suppressed evidence in its possession which could have established negligence. | 0 | 1,273 | 2,653 | ### Instruction:
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the trial Court.4. In its appeal the State of Punjab first contended that the plaintiff could not succeed as it had failed to prove that the breach had been caused by the defendants negligence. I am unable to accept this contention. The trial Court inferred negligence against the defendant as it had failed to produce the relevant documents and with this view I agree. The defendant had produced no documents to show how the breach was caused. I had been asked by the trial Court to do so by an order made on May 12, 1949 but failed to produce them. The defendant had a large number of canal officers and according to Mr. Malhotra, the Executive Engineer in charge of the canal at the relevant time there was a regular office and various reports concerning the breach had been made. None of these was produced at the hearing. It is obvious that in an organisation like the canal office, reports and other documents must have been kept to show how the breach occurred and what was done to stop it. If such documents are not produced an inference can be legitimately made that if produced, they would have gone against the case of the defendant, that is they would have proved that the defendant had been negligint cp. Murugesam Pillai v. Gnansambhandha Pandara Sannadhi, 44 Ind App 98 : (AIR 1917 PC 6). It was suggested in this Court that the documents had been destroyed. It may be that they are now destroyed. One of the defendants officers called by the High Court in view of the unsatisfactory nature of the documentary evidence said that documents were destroyed after three to seven years. The breach occurred in August 1947, the suit was filed in October 1948 and the trial was held about August 1949. So it would appear that at the time of the trial the relevant documents had not been destroyed. Nor was it said that they had then been destroyed. Furthermore, in view of the pendency of the suit the documents must have been preserved. It is clear that they had not been produced deliberately. An inference that the defendant was neligent in the management of the canal arises from the non-production of the documents. There is, therefore, evidence that the defendant was neligent.5. Furthermore it seems to me that the rule of res ipsa loqitur applies to this case. The canal was admittedly in the management of the defendant and canal banks art not breached if those in management take proper care. In such cases the rule would apply and the breach itself would be prima facie proof of negligence : see Scott v. London Dock Co.,(1865) 3 H and C 596 (601). No doubt the defendant can show that the breach was due to act of God or to act of a third party or any other thing which would show that it had not been negligent, but it did not do so. It may be that the rule of res ipsa loquitor may not apply where it is known how the thing which caused the damage happened as was held in Barkway v. South Wales Transport Co. Ltd., 1950-1 All ER 392. But that is not the case here. No reason has been advanced why the rule should not apply. Therefore I think that the first contention of the defendant that there is no evidence of negligence must be rejected.6. I do not think it necessary in the present case to consider whether the rule in Rylands v. Fletcher, (1868) 3 HL 330 applies to make the defendant liable for I have already held that it is liable as negligence has been proved.7. The second point raised by the defendant was one of limitation. It was contended on behalf of the defendant that the case was governed by Art. 2 of the first schedule of the Limitation Act. It is not in dispute that if that article applied, the suit would be out of time. That article relates to a suit "for compensation for doing or omitting to do an act alleged to be in pursuance of any enactment". It was said that the Northern India Canal and Drainage Act, 1873 imposed a duty on the defendant to take care of the canal banks and its failure to do so was the omission to do an act in pursuance of an enactment within the article. I have very grave doubt if this interpretation of Art. 2 is correct. There is authority against it : see Mohammad Sadaat Ali Khan v. Administrator Corporation of City of Lahore, ILR (1945) 26 Lah 523 : (AIR l945 Lah 324) (FB). But apart from that I find nothing in the Canal Act imposing any duty on the defendant to take care of the banks. We were referred to Ss. 6 and 15 of that Act. Both are enabling sections giving power to the State Government to do certain acts. Under S. 6 it has power to enter on any land and remove any obstruction and close any channels or do any other thing necessary for the application or use of the water to be taken into the canal. This obviously does not impose any duty in connection with the canal bank. Section 15 gives the power to the canal authorities in case of accident happening or being apprehended to a canal to enter upon lands of others and to do all things necessary to repair the accident or prevent it. This section again has nothing to do with taking care of the canal banks. Therefore, even assuming that the defendants interpretation of Art. 2 is correct, this is not a case to which it may apply. I wish however to make it clear that nothing that I have said here is to be read as in any way approving the defendants interpretation of Art. 2. Therefore the defendants contention that the suit was barred by limitation also fails.
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rule but only as an aid to an inference when it is reasonable to think that there are no further facts tois thus sufficient evidence, in the absence of reasonable explanation (which there is not), to establish negligence. Further, there was inordinate delay and negligence in sealing the breach. Even the flow in the canal was not reduced for repairs to be carried out quickly. In such circumstances, the facts prove negligence and government was rightly held responsible. Whether the defect was patent or latent is not much to the purpose. It was not an inevitable accident, and the Government must be held liable.In regard to section 6 it is sufficient to say that it has no application here. It refers to the day named in S. 5 and that section provides for a notification to be issued declaring that water would be applied after a particular date for purpose of any existing or projected canal or drainage work or for purposes of Government. On such notification issuing any Canal Officer, acting under the order of the State Government, may enter on any land and remove obstructions or close any channels so that water may be applied to those purposes. This is an entirely different matter and it is no wonder that Mr. Vishwanatha Sastri did not rely upon S. 6.24. Section 15 no doubt confers a power to enter lands and property of others to effect repairs or to prevent accidents. One can hardly dispute that it is the normal duty of canal authorities to make repairs and execute works, to prevent accidents. But Art. 2 cannot apply to omissions in following the statutory duties because it cannot be suggested that they are in pursuance of any enactment. Cases of malfeasance, misfeasance ormay or may not have statutory protection. Act or omission which can claim statutory protection or is alleged to be in pursuance of a statutory command may attract Art. 2 but the act or omission must be one which can be said to be in pursuance of an enactment. Here the suit was for compensation for damages consequent on a break in the canal on August 15, 1947. The only act or omission could be the opening and closing of the channel for silting operations. That was before June 1946. The third column of Art. 2 provides the start of the limitation of 90 days "when the act or omission takes place." The period of limitation in this case would be over even before the injury if that were the startingto the presence of the words "purporting or professing to be done in pursuance of this Act" and observed that they regarded the words as of pivotal importance and that their presence postulated that work which is not done in pursuance of the statute may nevertheless be accorded its protection if the work professes or purports to be done in pursuance of the statute". But they were giving protection to an act which could legitimately claim to be in pursuance of the Port Act. Here the break in the bank was not that kind of act or omission. It could not claim to be in pursuance of the Canal Act. Nor could the opening or closing of the channel for silting operations, though in pursuance of the Canal Act, be the relevant act or omission because they were more than a year before the cause of action and to apply a limitation of 96 days to that cause of action is not only impossible but also absurd. Art. 2, therefore, does not apply here.I wish to add nothing with regard to the plaintiffs appeal to what has been said by my brother Hidayatullah nor to what he or my brother Sarkar had said regarding the question of limitation raised on behalf of the defendant. They have both held that Art. 2 of the Limitation Act is not attracted to a case like the present where the damages sustained by the plaintiff are not the result of anything done by the State in pursuance of a statutory power exercised by it or by reason of an act which could properly be said to have been performed in the purported exercise of a statutory power. If Art. 2 is out of the way, it is not disputed on behalf of the State that the suit will be within time.The sole ground upon which the liability of the State could be established in this case would be negligence of the State in properly maintaining the banks of the canal. For this purpose it would be relevant to consider whether there were periodical inspections, whether any breaches or the development of cracks were noticed along the banks of the canal and in particular at the place where the breach ultimately occurred or whether any erosion of the banks particularly at place where one of the banks had been plugged had been noticed and no action or timely action had been taken thereon. There is evidence to show that the canals were being regularly inspected. That, however, is not the end of the matter. Immediately after the breach occurred some reports were made and as pointed out by my brethren in their judgments they were not placed before the court despite its order requiring their production. When the matter went up before the High Court it was said that the records had been destroyed in the year 1958 or so and therefore they could not be furnished. This action on the part of the State is manifestly unreasonable and the legitimate inference that could be drawn from it is that if the documents had been produced they would have gone against the State and would establish its negligence. In these circumstances I would hold that though the plaintiffs have been enabled to adduce positive evidence of negligence it could legitimately be presumed that the State was negligence inasmuch as it had deliberately suppressed evidence in its possession which could have established negligence.
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M/s. R.N. Ganekar & Company Vs. M/s. Hindustan Wires Limited | more tons of steel wire were delivered in pursuance of this original contract although the appellants were required to pay a higher price owing to the respondents refusal to make the deliveries at the price originally fixed. Even in January, 1970 when the respondents refused to make any further supply it was not because there was no contract between them but because, the appellants, though requested for a long time to formally confirm in writing the price variation clause referred to above, had not done so. The respondents letter dated January 28, 1970 puts the whole controversy beyond the pale of doubt. The relevant portions of that letter are as follows."Your order was subject to the terms and conditions as per our letter No. W/8/11 dated 16th May 1969, according to which the prices of wires were subject to price variation.... "As and when we have informed you regarding the increase in price on account of above said condition you have not accepted the increase and every time you raised objections and given clearance partially for some quantities. To keep business relationship with you we had all the times kept your requests even though you have given your confirmation for partial quantity although under no circumstances, we were obliged to accept the same and could treat your order as cancelled, in the absence of confirmation regarding increase in the price.... "Even the last confirmation which you gave vide letter No. DLW/53/69 dated 22-11-1969 was only for 2 wagons and naturally we have taken it as granted that you are not interested in the balance quantity against your order. However, even vide your letter No. DLW/653/69 dated 30-12-1969, you had confirmed the increase in price only in respect of 3 wagons. This clearly shows that at no stage you had been interested in confirming the increase in price as per price variation clause, in spite of the fact that the price variation clause was accepted by you. "We regret at this stage it is not feasible for us to supply the balance quantity of your order and till writing of this letter, you have not confirmed the increase in price which we have asked for from time to time as per price variation clause and as such we are treating the balance quantity of your order as cancelled. The word order in the above letter clearly refers to the original agreement for the supply of 400 metric tons of steel wire. The letter charges the appellants that they had accepted the price variation clause and still for some reason or the other they were not confirming in writing the acceptance of the increase in price as per the price variation clause. Therefore, the respondents thought that they were entitled to "treat the balance quantity of your order as cancelled that is to say that the respondents were relieved of the necessity of supplying the balance quantity of steel wire under the original contract. It is evident that the respondents accepted the main contract for the supply of 400 tons of steel wire as recorded in the letter of the appellants dated 7-5-1969, but put forward the plea that the original price of Rs. 2450/- fixed between the parties as the firm price was subject to the price variation clause mentioned in Annexure G dated May 16, 1969 and which, the respondents alleged in their petition, had been accepted by the appellants on or about May 22, 1969. See para 6 of the respondents petition in the High Court. In other words, it was common ground that there was a completed contract for the sale and delivery of 400 metric tons of steel wire, but whereas the appellants said that the price per ton was Rs. 2450/- the respondents countered that that price was subject to variation. The respondents had refused to deliver the remaining portion of goods under the contract only because the appellants, though they had orally agreed to accept the price variation clause, had not formally accepted that clause in writing. The respondents petition in the High Court shows at every step that there was a concluded contract and in fact they wanted a declaration from the court in the following terms:"that the court may be pleased to determine that a contract was concluded between your petitioner and the respondent on the terms and conditions mentioned in the correspondence consisting of the letter dated May 7, 1969 written by the respondent to your petitioner, telegram dated May 10, 1969 from your petitioner to the respondent, letter dated May 13, 1969 from the respondent to your petitioner and the two letters both dated May 16, 1969 and copy of works order dated May 16, 1969 written by your petitioner to the respondent and accepted by and between the petitioner and respondent and that an arbitration agreement exists between your petitioner and the respondent on the basis of such contract having been concluded between the parties in terms of cl. 14. of the said works order. This clearly goes to show that there was really no difference as to the subject matter of the contract between the parties except that while the respondents alleged that the appellants had agreed to the price variation clause the appellants alleged that they had not. Apart from this there was no dispute between the parties whatsoever with regard to the terms of the contract. Both parties agreed that in accordance with the works order there was an arbitration clause and this arbitration clause was binding on both. In these circumstances it is difficult to see how the respondents were entitled to approach the court under Section 33 of the Arbitration Act. There is no challenge to the existence or validity of the arbitration agreement, nor was the application made with a desire to have the effect of the arbitration agreement determined. The learned Judge, with respect, was in error in thinking that the respondents petition was competent under Section 33 of the Arbitration Act, 1940. | 1[ds]It is clear from the provision that the court had jurisdiction under this Section (i) when it is desired to challenge the existence of an arbitration agreement;(ii) when it is desired to challenge the validity of that agreement and (iii) when it is desired to have the effect of the arbitration agreement determined. In all these cases it is the arbitration agreement only which is the subject matter for consideration before the court. Indeed if an arbitration agreement forms one of the clauses in a contract and that contract is for some reason invalid in law ort in law, it would automatically follow that the arbitration agreement also was invalid ort in the eye of the law. But when it is not the case that the arbitration agreement has becomet or invalid for that reason, the court under Section 33 is merely concerned with the three questions relating to the arbitration agreement onlyThe word order in the above letter clearly refers to the original agreement for the supply of 400 metric tons of steel wire. The letter charges the appellants that they had accepted the price variation clause and still for some reason or the other they were not confirming in writing the acceptance of the increase in price as per the price variation clause. Therefore, the respondents thought that they were entitled to "treat the balance quantity of your order as cancelled that is to say that the respondents were relieved of the necessity of supplying the balance quantity of steel wire under the original contract. It is evident that the respondents accepted the main contract for the supply of 400 tons of steel wire as recorded in the letter of the appellants dated, but put forward the plea that the original price of Rs. 2450/fixed between the parties as the firm price was subject to the price variation clause mentioned in Annexure G dated May 16, 1969 and which, the respondents alleged in their petition, had been accepted by the appellants on or about May 22, 1969. See para 6 of the respondents petition in the High Court. In other words, it was common ground that there was a completed contract for the sale and delivery of 400 metric tons of steel wire, but whereas the appellants said that the price per ton was Rs. 2450/the respondents countered that that price was subject to variation. The respondents had refused to deliver the remaining portion of goods under the contract only because the appellants, though they had orally agreed to accept the price variation clause, had not formally accepted that clause in writingThis clearly goes to show that there was really no difference as to the subject matter of the contract between the parties except that while the respondents alleged that the appellants had agreed to the price variation clause the appellants alleged that they had not. Apart from this there was no dispute between the parties whatsoever with regard to the terms of the contract. Both parties agreed that in accordance with the works order there was an arbitration clause and this arbitration clause was binding on both. In these circumstances it is difficult to see how the respondents were entitled to approach the court under Section 33 of the Arbitration Act. There is no challenge to the existence or validity of the arbitration agreement, nor was the application made with a desire to have the effect of the arbitration agreement determined. The learned Judge, with respect, was in error in thinking that the respondents petition was competent under Section 33 of the Arbitration Act, 1940 | 1 | 3,699 | 643 | ### 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:
more tons of steel wire were delivered in pursuance of this original contract although the appellants were required to pay a higher price owing to the respondents refusal to make the deliveries at the price originally fixed. Even in January, 1970 when the respondents refused to make any further supply it was not because there was no contract between them but because, the appellants, though requested for a long time to formally confirm in writing the price variation clause referred to above, had not done so. The respondents letter dated January 28, 1970 puts the whole controversy beyond the pale of doubt. The relevant portions of that letter are as follows."Your order was subject to the terms and conditions as per our letter No. W/8/11 dated 16th May 1969, according to which the prices of wires were subject to price variation.... "As and when we have informed you regarding the increase in price on account of above said condition you have not accepted the increase and every time you raised objections and given clearance partially for some quantities. To keep business relationship with you we had all the times kept your requests even though you have given your confirmation for partial quantity although under no circumstances, we were obliged to accept the same and could treat your order as cancelled, in the absence of confirmation regarding increase in the price.... "Even the last confirmation which you gave vide letter No. DLW/53/69 dated 22-11-1969 was only for 2 wagons and naturally we have taken it as granted that you are not interested in the balance quantity against your order. However, even vide your letter No. DLW/653/69 dated 30-12-1969, you had confirmed the increase in price only in respect of 3 wagons. This clearly shows that at no stage you had been interested in confirming the increase in price as per price variation clause, in spite of the fact that the price variation clause was accepted by you. "We regret at this stage it is not feasible for us to supply the balance quantity of your order and till writing of this letter, you have not confirmed the increase in price which we have asked for from time to time as per price variation clause and as such we are treating the balance quantity of your order as cancelled. The word order in the above letter clearly refers to the original agreement for the supply of 400 metric tons of steel wire. The letter charges the appellants that they had accepted the price variation clause and still for some reason or the other they were not confirming in writing the acceptance of the increase in price as per the price variation clause. Therefore, the respondents thought that they were entitled to "treat the balance quantity of your order as cancelled that is to say that the respondents were relieved of the necessity of supplying the balance quantity of steel wire under the original contract. It is evident that the respondents accepted the main contract for the supply of 400 tons of steel wire as recorded in the letter of the appellants dated 7-5-1969, but put forward the plea that the original price of Rs. 2450/- fixed between the parties as the firm price was subject to the price variation clause mentioned in Annexure G dated May 16, 1969 and which, the respondents alleged in their petition, had been accepted by the appellants on or about May 22, 1969. See para 6 of the respondents petition in the High Court. In other words, it was common ground that there was a completed contract for the sale and delivery of 400 metric tons of steel wire, but whereas the appellants said that the price per ton was Rs. 2450/- the respondents countered that that price was subject to variation. The respondents had refused to deliver the remaining portion of goods under the contract only because the appellants, though they had orally agreed to accept the price variation clause, had not formally accepted that clause in writing. The respondents petition in the High Court shows at every step that there was a concluded contract and in fact they wanted a declaration from the court in the following terms:"that the court may be pleased to determine that a contract was concluded between your petitioner and the respondent on the terms and conditions mentioned in the correspondence consisting of the letter dated May 7, 1969 written by the respondent to your petitioner, telegram dated May 10, 1969 from your petitioner to the respondent, letter dated May 13, 1969 from the respondent to your petitioner and the two letters both dated May 16, 1969 and copy of works order dated May 16, 1969 written by your petitioner to the respondent and accepted by and between the petitioner and respondent and that an arbitration agreement exists between your petitioner and the respondent on the basis of such contract having been concluded between the parties in terms of cl. 14. of the said works order. This clearly goes to show that there was really no difference as to the subject matter of the contract between the parties except that while the respondents alleged that the appellants had agreed to the price variation clause the appellants alleged that they had not. Apart from this there was no dispute between the parties whatsoever with regard to the terms of the contract. Both parties agreed that in accordance with the works order there was an arbitration clause and this arbitration clause was binding on both. In these circumstances it is difficult to see how the respondents were entitled to approach the court under Section 33 of the Arbitration Act. There is no challenge to the existence or validity of the arbitration agreement, nor was the application made with a desire to have the effect of the arbitration agreement determined. The learned Judge, with respect, was in error in thinking that the respondents petition was competent under Section 33 of the Arbitration Act, 1940.
### Response:
1
### Explanation:
It is clear from the provision that the court had jurisdiction under this Section (i) when it is desired to challenge the existence of an arbitration agreement;(ii) when it is desired to challenge the validity of that agreement and (iii) when it is desired to have the effect of the arbitration agreement determined. In all these cases it is the arbitration agreement only which is the subject matter for consideration before the court. Indeed if an arbitration agreement forms one of the clauses in a contract and that contract is for some reason invalid in law ort in law, it would automatically follow that the arbitration agreement also was invalid ort in the eye of the law. But when it is not the case that the arbitration agreement has becomet or invalid for that reason, the court under Section 33 is merely concerned with the three questions relating to the arbitration agreement onlyThe word order in the above letter clearly refers to the original agreement for the supply of 400 metric tons of steel wire. The letter charges the appellants that they had accepted the price variation clause and still for some reason or the other they were not confirming in writing the acceptance of the increase in price as per the price variation clause. Therefore, the respondents thought that they were entitled to "treat the balance quantity of your order as cancelled that is to say that the respondents were relieved of the necessity of supplying the balance quantity of steel wire under the original contract. It is evident that the respondents accepted the main contract for the supply of 400 tons of steel wire as recorded in the letter of the appellants dated, but put forward the plea that the original price of Rs. 2450/fixed between the parties as the firm price was subject to the price variation clause mentioned in Annexure G dated May 16, 1969 and which, the respondents alleged in their petition, had been accepted by the appellants on or about May 22, 1969. See para 6 of the respondents petition in the High Court. In other words, it was common ground that there was a completed contract for the sale and delivery of 400 metric tons of steel wire, but whereas the appellants said that the price per ton was Rs. 2450/the respondents countered that that price was subject to variation. The respondents had refused to deliver the remaining portion of goods under the contract only because the appellants, though they had orally agreed to accept the price variation clause, had not formally accepted that clause in writingThis clearly goes to show that there was really no difference as to the subject matter of the contract between the parties except that while the respondents alleged that the appellants had agreed to the price variation clause the appellants alleged that they had not. Apart from this there was no dispute between the parties whatsoever with regard to the terms of the contract. Both parties agreed that in accordance with the works order there was an arbitration clause and this arbitration clause was binding on both. In these circumstances it is difficult to see how the respondents were entitled to approach the court under Section 33 of the Arbitration Act. There is no challenge to the existence or validity of the arbitration agreement, nor was the application made with a desire to have the effect of the arbitration agreement determined. The learned Judge, with respect, was in error in thinking that the respondents petition was competent under Section 33 of the Arbitration Act, 1940
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Associated Cement Companies Ltd Vs. Cement Workers Kamdar Union & Others | shall not insist upon production of medical certificate for obtaining sick leave when the illness of the workman is of the duration of a day and expressed its hope that the workman will not abuse this concession and that it will be open to the appellant to take disciplinary action against any workman when there is satisfactory proof that the concession has been abused.5. It is not necessary to refer to the finding of the Tribunal on the second question referred, as this appeal is concerned only with the correctness of the finding on the first question.6. In support of the appeal, it was contended that there is provision for 15 days casual leave in the appellants company and if a workman is indisposed and cannot attend to work for that reason, it is open to him to take casual leave, that sick leave with full pay can be availed of only for real sickness and there is nothing wrong in the appellant insisting upon medical certificate for obtaining sick leave even if it be for a day and that to dispense with a requirement of medical certificate would lead to grave abuses. It was further argued that, if for illness of the duration of a day, no medical certificate is insisted upon, it will be open to the workmen to avail of all the 15 days sick leave without producing any medical certificate, if sick leave for a day is taken at intervals. Counsel for the appellant, in the course of his argument, referred to several awards passed by Industrial Tribunals, holding that there are strong grounds for rejecting the demand of workmen for grant of sick leave even for two or three days without the production of medical certificate. He also referred to a passage from "Better Employment Relation" by Foenonder reading as under :It is usual provision in an Australian industrial award that up to one week per year leave without deduction of pay shall be allowed where, by reason of some ailment, the worker is unable to attend the factory. There is reason to believe, however, that the privilege has been shamefully abused at times, and sick leave successfully claimed in situations that are not genuine, or that do not qualify for the benefit. Cases indeed have been brought to notice where workers, by report to frequent change of employment and deceit, have been able to draw no less than three weeks sick pay in a year for time that was not worked. The extra burden imposed on industry by these frauds on awards does not stop short at the additional monetary charges that are involved; there is the further count of waste, and inefficiency, that are the inevitable accompaniments of a high labour mobility, or quick employee turnover. Unfortunately, one Australian trade union at least has counseled its members by circular to exhaust any unclaimed sick leave before the expiration of relevant year"and to the following observations in a publication entitled "The Management of Labour Relations" by Watkins and Dodd :"The provisions of sickness benefits or insurance entails serious difficulties, because of the necessity of guarding against feigned illness by astute malingers and the danger of making the slightest illness an excuse for absence from work."Counsel said that it is because sick leave provisions are abused by workmen that no benefit is given under the Employees State Insurance Act, 1948, for the first two days of illness.7. Generally speaking, no workman will get himself treated by a doctor on the very first day of an illness. For minor ailments, no workman would go to a doctor for treatment and it would be a great hardship to the workman if a medical certificate from a qualified doctor is insisted upon for sick leave for a days illness. From a practical point of view, we do not think that it would be expedient to insist that a workman should produce a medical certificate from a qualified doctor to avail himself of sick leave for a day on the ground of illness. We do not say that the apprehension entertained by the appellant that the workmen would abuse the provision for sick leave with full pay in some cases at least, if no medical certificate is insisted upon for the leave even if the duration of the illness is for a day, is unfounded. But, at the same time one has to consider the practical inconvenience and the hardship to the workmen if a medical certificate is insisted upon for availing of sick leave for illness of the duration of a day.8. The Tribunal has taken into account the pros and cons of the matter and on a balance of the relevant considerations, has arrived at a conclusion. Should we interfere with that conclusion in an appeal under Art. 136 of the Constitution ?9. In Bengal Chemical and Pharmaceutical Works Ltd., Calcutta v. Their workmen, [1959 - I L.L.J. 413]; (1959) Suppl. 2 S.C.R. 136, at 140, this court observed :"Though Art. 136 is couched in widest terms, it is necessary for this Court to exercise its discretionary jurisdiction only in cases where awards are made in violation of the principles of natural justice, causing substantial and grave injustice to parties or raising an important principle of industrial law requiring elucidation and final decision by this Court or disclosing such other exceptional or special circumstances which merit the consideration of this Court."See also Hindustan antibiotics, Ltd. v. The Workmen and others, [1967 - I L.L.J. 114]; (1967) 1 S.C.R. 652.10. The portion of the award with which we are concerned does not raise any important principle of law requiring elucidation and final decision by this Court. Nor does it disclose any exceptional or special circumstances which merit decision by this Court. On a question like this, where the Tribunal, on a consideration of all the materials placed before it an having regard to the overall picture, came to the conclusion, we do not think this Court should interfere. | 0[ds]5. It is not necessary to refer to the finding of the Tribunal on the second question referred, as this appeal is concerned only with the correctness of the finding on the first question.Generally speaking, no workman will get himself treated by a doctor on the very first day of an illness. For minor ailments, no workman would go to a doctor for treatment and it would be a great hardship to the workman if a medical certificate from a qualified doctor is insisted upon for sick leave for a days illness. From a practical point of view, we do not think that it would be expedient to insist that a workman should produce a medical certificate from a qualified doctor to avail himself of sick leave for a day on the ground of illness. We do not say that the apprehension entertained by the appellant that the workmen would abuse the provision for sick leave with full pay in some cases at least, if no medical certificate is insisted upon for the leave even if the duration of the illness is for a day, is unfounded. But, at the same time one has to consider the practical inconvenience and the hardship to the workmen if a medical certificate is insisted upon for availing of sick leave for illness of the duration of a day.8. The Tribunal has taken into account the pros and cons of the matter and on a balance of the relevant considerations, has arrived at a conclusion.The portion of the award with which we are concerned does not raise any important principle of law requiring elucidation and final decision by this Court. Nor does it disclose any exceptional or special circumstances which merit decision by this Court. On a question like this, where the Tribunal, on a consideration of all the materials placed before it an having regard to the overall picture, came to the conclusion, we do not think this Court should interfere. | 0 | 1,593 | 353 | ### 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:
shall not insist upon production of medical certificate for obtaining sick leave when the illness of the workman is of the duration of a day and expressed its hope that the workman will not abuse this concession and that it will be open to the appellant to take disciplinary action against any workman when there is satisfactory proof that the concession has been abused.5. It is not necessary to refer to the finding of the Tribunal on the second question referred, as this appeal is concerned only with the correctness of the finding on the first question.6. In support of the appeal, it was contended that there is provision for 15 days casual leave in the appellants company and if a workman is indisposed and cannot attend to work for that reason, it is open to him to take casual leave, that sick leave with full pay can be availed of only for real sickness and there is nothing wrong in the appellant insisting upon medical certificate for obtaining sick leave even if it be for a day and that to dispense with a requirement of medical certificate would lead to grave abuses. It was further argued that, if for illness of the duration of a day, no medical certificate is insisted upon, it will be open to the workmen to avail of all the 15 days sick leave without producing any medical certificate, if sick leave for a day is taken at intervals. Counsel for the appellant, in the course of his argument, referred to several awards passed by Industrial Tribunals, holding that there are strong grounds for rejecting the demand of workmen for grant of sick leave even for two or three days without the production of medical certificate. He also referred to a passage from "Better Employment Relation" by Foenonder reading as under :It is usual provision in an Australian industrial award that up to one week per year leave without deduction of pay shall be allowed where, by reason of some ailment, the worker is unable to attend the factory. There is reason to believe, however, that the privilege has been shamefully abused at times, and sick leave successfully claimed in situations that are not genuine, or that do not qualify for the benefit. Cases indeed have been brought to notice where workers, by report to frequent change of employment and deceit, have been able to draw no less than three weeks sick pay in a year for time that was not worked. The extra burden imposed on industry by these frauds on awards does not stop short at the additional monetary charges that are involved; there is the further count of waste, and inefficiency, that are the inevitable accompaniments of a high labour mobility, or quick employee turnover. Unfortunately, one Australian trade union at least has counseled its members by circular to exhaust any unclaimed sick leave before the expiration of relevant year"and to the following observations in a publication entitled "The Management of Labour Relations" by Watkins and Dodd :"The provisions of sickness benefits or insurance entails serious difficulties, because of the necessity of guarding against feigned illness by astute malingers and the danger of making the slightest illness an excuse for absence from work."Counsel said that it is because sick leave provisions are abused by workmen that no benefit is given under the Employees State Insurance Act, 1948, for the first two days of illness.7. Generally speaking, no workman will get himself treated by a doctor on the very first day of an illness. For minor ailments, no workman would go to a doctor for treatment and it would be a great hardship to the workman if a medical certificate from a qualified doctor is insisted upon for sick leave for a days illness. From a practical point of view, we do not think that it would be expedient to insist that a workman should produce a medical certificate from a qualified doctor to avail himself of sick leave for a day on the ground of illness. We do not say that the apprehension entertained by the appellant that the workmen would abuse the provision for sick leave with full pay in some cases at least, if no medical certificate is insisted upon for the leave even if the duration of the illness is for a day, is unfounded. But, at the same time one has to consider the practical inconvenience and the hardship to the workmen if a medical certificate is insisted upon for availing of sick leave for illness of the duration of a day.8. The Tribunal has taken into account the pros and cons of the matter and on a balance of the relevant considerations, has arrived at a conclusion. Should we interfere with that conclusion in an appeal under Art. 136 of the Constitution ?9. In Bengal Chemical and Pharmaceutical Works Ltd., Calcutta v. Their workmen, [1959 - I L.L.J. 413]; (1959) Suppl. 2 S.C.R. 136, at 140, this court observed :"Though Art. 136 is couched in widest terms, it is necessary for this Court to exercise its discretionary jurisdiction only in cases where awards are made in violation of the principles of natural justice, causing substantial and grave injustice to parties or raising an important principle of industrial law requiring elucidation and final decision by this Court or disclosing such other exceptional or special circumstances which merit the consideration of this Court."See also Hindustan antibiotics, Ltd. v. The Workmen and others, [1967 - I L.L.J. 114]; (1967) 1 S.C.R. 652.10. The portion of the award with which we are concerned does not raise any important principle of law requiring elucidation and final decision by this Court. Nor does it disclose any exceptional or special circumstances which merit decision by this Court. On a question like this, where the Tribunal, on a consideration of all the materials placed before it an having regard to the overall picture, came to the conclusion, we do not think this Court should interfere.
### Response:
0
### Explanation:
5. It is not necessary to refer to the finding of the Tribunal on the second question referred, as this appeal is concerned only with the correctness of the finding on the first question.Generally speaking, no workman will get himself treated by a doctor on the very first day of an illness. For minor ailments, no workman would go to a doctor for treatment and it would be a great hardship to the workman if a medical certificate from a qualified doctor is insisted upon for sick leave for a days illness. From a practical point of view, we do not think that it would be expedient to insist that a workman should produce a medical certificate from a qualified doctor to avail himself of sick leave for a day on the ground of illness. We do not say that the apprehension entertained by the appellant that the workmen would abuse the provision for sick leave with full pay in some cases at least, if no medical certificate is insisted upon for the leave even if the duration of the illness is for a day, is unfounded. But, at the same time one has to consider the practical inconvenience and the hardship to the workmen if a medical certificate is insisted upon for availing of sick leave for illness of the duration of a day.8. The Tribunal has taken into account the pros and cons of the matter and on a balance of the relevant considerations, has arrived at a conclusion.The portion of the award with which we are concerned does not raise any important principle of law requiring elucidation and final decision by this Court. Nor does it disclose any exceptional or special circumstances which merit decision by this Court. On a question like this, where the Tribunal, on a consideration of all the materials placed before it an having regard to the overall picture, came to the conclusion, we do not think this Court should interfere.
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Mohd. Yasin Shah Vs. Ali Akbar Khan | 5 who was the counsel for the petitioner and in whose presence the proposer Ghulam Mohiuddi n had signed the nomination form was actually present at the time of the scrutiny and yet, for reasons best known to him, he did not choose to stand up and point out to the Returning Officer that the objection raised by the appellant was not tenable because the proposer had signed the nomination form in his presence. Lastly the signature which contains the overwriting ex facie shows that it was not genuine. In these circumstances. therefore, the only irresistible inference that could be drawn would be that the signature containing the overwriting in the present form, which was in existence even at the time of the scrutiny, could not have been the signature of P. W. 1 Ghulam Mohiuddin. To add to this is the fact that P.W. 1 himself clearly admitted that in the present form, namely, the signature containing the overwriting, he was not in a position to admit that it was his signature. This assertion was fully supported by P.W. 5 Girdhari Lal counsel for t he petitioner in whose presence P.W. 1 is said to have signed the nomination form. The learned Judge appears to have entered into the domain of speculation by brushing aside the clear and categorical admission made by P.W. 1 on the ground that the question put to him had placed him on the horns of a dilemma. Once it is proved that the signature in the present form existed even at the time of the scrutiny, then the question put to the witness P.W. 1 was most relevant and the answer given by the witness was both clear and unambiguous. We do not see any vagueness or ambiguity in the answer given by the witness. Instead of taking the clear admission of P.W. 1 on its face value the learned Judge tried to brush it aside on purely speculative grounds. In these circumstances we are unable to agree with the view taken by the learned Judge which is based on a misreading and misinterpretation of the evidence of P.W. 1. For the same reason, we reject the contention of Mr. Pathak that the admission of P.W. 1 was vague. In these circumstances, therefore, we hold that it has been proved to the satisfaction of the Court that the signature of P.W. 1 Ghulam Mohiuddin which contained the overwriting was not his genuine signature . The nomination paper of the petitioner, therefore, could have been properly rejected on the ground that the signature of the proposer was not genuine. Thus the rejection of the nomination paper by the Returning Officer could be supported even on a ground different from the one which may have been taken by the Returning Officer. This being the position the rejection of the nomination paper was proper, and the election of the appellant could not be assailed under s. 108(1)(c) of the Act under which the election could be declared void only if there was an improper rejection of the nomination paper. In the instant case, the rejection of the nomination paper by the Returning Officer being proper one, s. 108(1)(c) was not at all attracted.It was lastly contended by counsel for the petitioner that this Court ought not to interfere with the decision of the learned Judge unless there were special reasons for doing so. In support of his contention the learned counsel relied upon a decision of this Court in Laxminarayan and another v. Returning Officer and others(1) where this Court observed as follows:"Section 116A of the Act provides for an appeal to this Court from an order of the High Court dismissing an election petition. The appeal lies both on issues of law and of facts ................... The power of the appellate Court is very wide. It can reappraise the evidence and reverse the trial courts findings of fact. But like any other power it is not unconfined: it is subject to certain inherent limitations in relation to a conclusion of fact. While the trial court has not only read the evidence of witnesses on record but has also read their evidence in their faces, looks and demeanour. The appellate Court is confined to their evidence on record appellate Court is confined to their evidence on record. bility lies is entitled to great weight." (See Saraveeraswami v. Talluri-A.I.R. 1949 P.C. 32). However, the appellate court may interfere with a finding of fact if the trial court is shown to have overlooked any material feature in the evidence of a witness or if the balance of probabilities as to the credibility of the witness is inclined against the opinion of the trial Court."27. The propositions enunciated by the Court are well established and there can be no dispute with the propositions mentioned above. In the instant case, however, we find that the approach of the learned Judge was not correct. We have already pointed out a number of salient features appearing in the evidence which have rendered t he case of the petitioner inherently improbable. The learned Judge appears to have overlooked these essential features. Further, the learned Judge himself had observed that issue No. 1 which he had framed was wide enough to include the plea of the appellant, and even if the order of the Returning Officer in rejecting the nomination paper on the ground of the absence of the candidate or his proposer was wrong, it could still be supported on the ground that the signature of the proposer was not genuine. The learned Judge has not determined this aspect of the matter. In these circumstances, therefore, we feel that the judgment of the High Court is erroneous both on fact and in law and although the appellate Court is extremely slow in disturbing the findings of fact, in the instant case, we are satisfied that the judgment of the High Court is against the weight of the evidence on record and preponderance of probabilities. | 0[ds]12. In view of our finding that neither the petitioner P.W. 6 nor Ghulam Mohiuddin P.W. 1 were present on February 9, 1972 when the nomination paper of the petitioner was taken up for scrutiny by the Returning Officer, these two witnesses are not at all competent to depose as to whether or not on that date there was any overwriting in the signature of P.W. 1. In these circumstances, therefore, the evidence of P.W. 1 and 6 will have to be excluded on this point. Even so it will be interesting to note that the petitioner P.W. 6 does not say that there was any overwriting on the signature of P.W. 1 Ghulam Mohiuddin on the nomination form but he states that on a perusal of the nomination paper it appears that some ink was spread over his signature. An examination of the signature of Ghulam Mohiuddin would reveal to the naked eye that there is no question of the spreading of any ink over the signature but what has been done is that there is clear overwriting on the signature.P.W. 2 Qazi Mohammad Abdullah appear s to be a close acquaintance of the petitioner and had helped him in engaging the services of Girdhari Lal for the purpose of filling up the nomination paper which was also done at his own house. This witness also states that Ghulam Mohi uddin had affixed his signature in his presence with theof the petitioner. He further asserts that on the date of his deposition he found that there was an overwriting over the signature of Ghulam Mohiuddin. This witness was one of the proposers of Mohd. Yunis who had set up the petitioner as his dummy candidate as held by us. In these circumstances, therefore, this witness was interested and has tried to help the petitioner. Moreover he does not say that on February 9 , 1972 when the scrutiny of the nomination paper of the petitioner was taken up by the Returning Officer he had an opportunity to inspect the nomination paper in order to find out whether there was any overwriting on the signature. His evidence, therefore, does not exclude the possibility of the over writing having been made after Ghulam Mohiuddin had signed the nomination paper at the residence of the witness and before the nomination paper was filed or its scrutiny taken up. Further more, the witness admits that he is also a Congress worker and knew the petitioner for the last four years. For these reasons, therefore, in the first place the evidence of this witness is interested, and secondly it does not appear to be of any assistance to thehave perused the original order passed by the Returning officer very carefully, but we find that the entire order has been written in the same ink with the same pen and appears to have been written in one sitting. There is nothing to show that the second part of the order was added subsequently because the strokes of the letters, the ink which has been used and the general tenor of the writing appears to be the same throughout. In these circumstances, therefore, we reject the contention of the petitioner that the second part of the order was added subsequently. We accordingly hold that the allegations made by the petitioner against the Returning Officer in paragraph 26 of the election petition are totally unfounded and the petitioner has miserably failed to prove the same. The entire order of the Returning Officer was written in one sitting and there can be no question of any interpolation having been made by him nor had the Returning Officer any motive to do so. Nevertheless it is true that after having written the order "Hence rejected", the Returning officer appears to have recorded the fact that an objection was raised regarding the genuineness of the proposers signature.We have, however, examined the various aspects o f this question and from the facts found by us it is clear that the overwriting in the signature which was present at the date of the scrutiny also throws considerable doubt on the genuineness of the signature of the proposer Ghulam Mohiuddin as clearly admitted by him and the lawyer of the petitioner himself. The fact that the proposer and the petitioner were both absent on the date of the scrutiny lends sufficient support to the inference that the signature of the proposer Ghulam Mohiuddin on the nomination form does not appear to be genuine. It is also clearly established as found by us that the appellant did raise an objection regarding the genuineness of the signature of the proposer Ghulam Mohiuddin on the nomination form and that there was no one present on behalf of the candidate to rebut or refute the objection taken by the appellant. On the other hand P.W. 5 who was the counsel for the petitioner and in whose presence the proposer Ghulam Mohiuddi n had signed the nomination form was actually present at the time of the scrutiny and yet, for reasons best known to him, he did not choose to stand up and point out to the Returning Officer that the objection raised by the appellant was not tenable because the proposer had signed the nomination form in his presence. Lastly the signature which contains the overwriting ex facie shows that it was not genuine. In these circumstances. therefore, the only irresistible inference that could be drawn would be that the signature containing the overwriting in the present form, which was in existence even at the time of the scrutiny, could not have been the signature of P. W. 1 Ghulam Mohiuddin. To add to this is the fact that P.W. 1 himself clearly admitted that in the present form, namely, the signature containing the overwriting, he was not in a position to admit that it was his signature. This assertion was fully supported by P.W. 5 Girdhari Lal counsel for t he petitioner in whose presence P.W. 1 is said to have signed the nomination form. The learned Judge appears to have entered into the domain of speculation by brushing aside the clear and categorical admission made by P.W. 1 on the ground that the question put to him had placed him on the horns of a dilemma. Once it is proved that the signature in the present form existed even at the time of the scrutiny, then the question put to the witness P.W. 1 was most relevant and the answer given by the witness was both clear and unambiguous. We do not see any vagueness or ambiguity in the answer given by the witness. Instead of taking the clear admission of P.W. 1 on its face value the learned Judge tried to brush it aside on purely speculative grounds. In these circumstances we are unable to agree with the view taken by the learned Judge which is based on a misreading and misinterpretation of the evidence of P.W. 1. For the same reason, we reject the contention of Mr. Pathak that the admission of P.W. 1 was vague. In these circumstances, therefore, we hold that it has been proved to the satisfaction of the Court that the signature of P.W. 1 Ghulam Mohiuddin which contained the overwriting was not his genuine signature . The nomination paper of the petitioner, therefore, could have been properly rejected on the ground that the signature of the proposer was not genuine. Thus the rejection of the nomination paper by the Returning Officer could be supported even on a ground different from the one which may have been taken by the Returning Officer. This being the position the rejection of the nomination paper was proper, and the election of the appellant could not be assailed under s. 108(1)(c) of the Act under which the election could be declared void only if there was an improper rejection of the nomination paper. In the instant case, the rejection of the nomination paper by the Returning Officer being proper one, s. 108(1)(c) was not at all attracted.The propositions enunciated by the Court are well established and there can be no dispute with the propositions mentioned above. In the instant case, however, we find that the approach of the learned Judge was not correct. We have already pointed out a number of salient features appearing in the evidence which have rendered t he case of the petitioner inherently improbable. The learned Judge appears to have overlooked these essential features. Further, the learned Judge himself had observed that issue No. 1 which he had framed was wide enough to include the plea of the appellant, and even if the order of the Returning Officer in rejecting the nomination paper on the ground of the absence of the candidate or his proposer was wrong, it could still be supported on the ground that the signature of the proposer was not genuine. The learned Judge has not determined this aspect of the matter. In these circumstances, therefore, we feel that the judgment of the High Court is erroneous both on fact and in law and although the appellate Court is extremely slow in disturbing the findings of fact, in the instant case, we are satisfied that the judgment of the High Court is against the weight of the evidence on record and preponderance of probabilities. | 0 | 14,190 | 1,682 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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5 who was the counsel for the petitioner and in whose presence the proposer Ghulam Mohiuddi n had signed the nomination form was actually present at the time of the scrutiny and yet, for reasons best known to him, he did not choose to stand up and point out to the Returning Officer that the objection raised by the appellant was not tenable because the proposer had signed the nomination form in his presence. Lastly the signature which contains the overwriting ex facie shows that it was not genuine. In these circumstances. therefore, the only irresistible inference that could be drawn would be that the signature containing the overwriting in the present form, which was in existence even at the time of the scrutiny, could not have been the signature of P. W. 1 Ghulam Mohiuddin. To add to this is the fact that P.W. 1 himself clearly admitted that in the present form, namely, the signature containing the overwriting, he was not in a position to admit that it was his signature. This assertion was fully supported by P.W. 5 Girdhari Lal counsel for t he petitioner in whose presence P.W. 1 is said to have signed the nomination form. The learned Judge appears to have entered into the domain of speculation by brushing aside the clear and categorical admission made by P.W. 1 on the ground that the question put to him had placed him on the horns of a dilemma. Once it is proved that the signature in the present form existed even at the time of the scrutiny, then the question put to the witness P.W. 1 was most relevant and the answer given by the witness was both clear and unambiguous. We do not see any vagueness or ambiguity in the answer given by the witness. Instead of taking the clear admission of P.W. 1 on its face value the learned Judge tried to brush it aside on purely speculative grounds. In these circumstances we are unable to agree with the view taken by the learned Judge which is based on a misreading and misinterpretation of the evidence of P.W. 1. For the same reason, we reject the contention of Mr. Pathak that the admission of P.W. 1 was vague. In these circumstances, therefore, we hold that it has been proved to the satisfaction of the Court that the signature of P.W. 1 Ghulam Mohiuddin which contained the overwriting was not his genuine signature . The nomination paper of the petitioner, therefore, could have been properly rejected on the ground that the signature of the proposer was not genuine. Thus the rejection of the nomination paper by the Returning Officer could be supported even on a ground different from the one which may have been taken by the Returning Officer. This being the position the rejection of the nomination paper was proper, and the election of the appellant could not be assailed under s. 108(1)(c) of the Act under which the election could be declared void only if there was an improper rejection of the nomination paper. In the instant case, the rejection of the nomination paper by the Returning Officer being proper one, s. 108(1)(c) was not at all attracted.It was lastly contended by counsel for the petitioner that this Court ought not to interfere with the decision of the learned Judge unless there were special reasons for doing so. In support of his contention the learned counsel relied upon a decision of this Court in Laxminarayan and another v. Returning Officer and others(1) where this Court observed as follows:"Section 116A of the Act provides for an appeal to this Court from an order of the High Court dismissing an election petition. The appeal lies both on issues of law and of facts ................... The power of the appellate Court is very wide. It can reappraise the evidence and reverse the trial courts findings of fact. But like any other power it is not unconfined: it is subject to certain inherent limitations in relation to a conclusion of fact. While the trial court has not only read the evidence of witnesses on record but has also read their evidence in their faces, looks and demeanour. The appellate Court is confined to their evidence on record appellate Court is confined to their evidence on record. bility lies is entitled to great weight." (See Saraveeraswami v. Talluri-A.I.R. 1949 P.C. 32). However, the appellate court may interfere with a finding of fact if the trial court is shown to have overlooked any material feature in the evidence of a witness or if the balance of probabilities as to the credibility of the witness is inclined against the opinion of the trial Court."27. The propositions enunciated by the Court are well established and there can be no dispute with the propositions mentioned above. In the instant case, however, we find that the approach of the learned Judge was not correct. We have already pointed out a number of salient features appearing in the evidence which have rendered t he case of the petitioner inherently improbable. The learned Judge appears to have overlooked these essential features. Further, the learned Judge himself had observed that issue No. 1 which he had framed was wide enough to include the plea of the appellant, and even if the order of the Returning Officer in rejecting the nomination paper on the ground of the absence of the candidate or his proposer was wrong, it could still be supported on the ground that the signature of the proposer was not genuine. The learned Judge has not determined this aspect of the matter. In these circumstances, therefore, we feel that the judgment of the High Court is erroneous both on fact and in law and although the appellate Court is extremely slow in disturbing the findings of fact, in the instant case, we are satisfied that the judgment of the High Court is against the weight of the evidence on record and preponderance of probabilities.
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in paragraph 26 of the election petition are totally unfounded and the petitioner has miserably failed to prove the same. The entire order of the Returning Officer was written in one sitting and there can be no question of any interpolation having been made by him nor had the Returning Officer any motive to do so. Nevertheless it is true that after having written the order "Hence rejected", the Returning officer appears to have recorded the fact that an objection was raised regarding the genuineness of the proposers signature.We have, however, examined the various aspects o f this question and from the facts found by us it is clear that the overwriting in the signature which was present at the date of the scrutiny also throws considerable doubt on the genuineness of the signature of the proposer Ghulam Mohiuddin as clearly admitted by him and the lawyer of the petitioner himself. The fact that the proposer and the petitioner were both absent on the date of the scrutiny lends sufficient support to the inference that the signature of the proposer Ghulam Mohiuddin on the nomination form does not appear to be genuine. It is also clearly established as found by us that the appellant did raise an objection regarding the genuineness of the signature of the proposer Ghulam Mohiuddin on the nomination form and that there was no one present on behalf of the candidate to rebut or refute the objection taken by the appellant. On the other hand P.W. 5 who was the counsel for the petitioner and in whose presence the proposer Ghulam Mohiuddi n had signed the nomination form was actually present at the time of the scrutiny and yet, for reasons best known to him, he did not choose to stand up and point out to the Returning Officer that the objection raised by the appellant was not tenable because the proposer had signed the nomination form in his presence. Lastly the signature which contains the overwriting ex facie shows that it was not genuine. In these circumstances. therefore, the only irresistible inference that could be drawn would be that the signature containing the overwriting in the present form, which was in existence even at the time of the scrutiny, could not have been the signature of P. W. 1 Ghulam Mohiuddin. To add to this is the fact that P.W. 1 himself clearly admitted that in the present form, namely, the signature containing the overwriting, he was not in a position to admit that it was his signature. This assertion was fully supported by P.W. 5 Girdhari Lal counsel for t he petitioner in whose presence P.W. 1 is said to have signed the nomination form. The learned Judge appears to have entered into the domain of speculation by brushing aside the clear and categorical admission made by P.W. 1 on the ground that the question put to him had placed him on the horns of a dilemma. Once it is proved that the signature in the present form existed even at the time of the scrutiny, then the question put to the witness P.W. 1 was most relevant and the answer given by the witness was both clear and unambiguous. We do not see any vagueness or ambiguity in the answer given by the witness. Instead of taking the clear admission of P.W. 1 on its face value the learned Judge tried to brush it aside on purely speculative grounds. In these circumstances we are unable to agree with the view taken by the learned Judge which is based on a misreading and misinterpretation of the evidence of P.W. 1. For the same reason, we reject the contention of Mr. Pathak that the admission of P.W. 1 was vague. In these circumstances, therefore, we hold that it has been proved to the satisfaction of the Court that the signature of P.W. 1 Ghulam Mohiuddin which contained the overwriting was not his genuine signature . The nomination paper of the petitioner, therefore, could have been properly rejected on the ground that the signature of the proposer was not genuine. Thus the rejection of the nomination paper by the Returning Officer could be supported even on a ground different from the one which may have been taken by the Returning Officer. This being the position the rejection of the nomination paper was proper, and the election of the appellant could not be assailed under s. 108(1)(c) of the Act under which the election could be declared void only if there was an improper rejection of the nomination paper. In the instant case, the rejection of the nomination paper by the Returning Officer being proper one, s. 108(1)(c) was not at all attracted.The propositions enunciated by the Court are well established and there can be no dispute with the propositions mentioned above. In the instant case, however, we find that the approach of the learned Judge was not correct. We have already pointed out a number of salient features appearing in the evidence which have rendered t he case of the petitioner inherently improbable. The learned Judge appears to have overlooked these essential features. Further, the learned Judge himself had observed that issue No. 1 which he had framed was wide enough to include the plea of the appellant, and even if the order of the Returning Officer in rejecting the nomination paper on the ground of the absence of the candidate or his proposer was wrong, it could still be supported on the ground that the signature of the proposer was not genuine. The learned Judge has not determined this aspect of the matter. In these circumstances, therefore, we feel that the judgment of the High Court is erroneous both on fact and in law and although the appellate Court is extremely slow in disturbing the findings of fact, in the instant case, we are satisfied that the judgment of the High Court is against the weight of the evidence on record and preponderance of probabilities.
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A.R. MADANA GOPAL ETC.ETC Vs. M/S RAMNATH PUBLICATIONS PVT. LTD. AND ANR | of MOUs. A plain reading of clause 3 in the MOUs would show that the Appellants were required to pay the balance sale consideration at the time of the registration of the sale deeds immediately when the Writ Petition is disposed of upholding the sale agreement. The High Court further found fault with the Appellants in waiting for 2 years and 3 months after the disposal of the Writ Petition for filing the suits. The High Court refused to grant relief of specific performance to the Appellants on the ground that there was total inaction on the part of the Appellants for more than two years after the parties entered into the MOU. Though, it was pleaded by the Appellants in the suits that they were always ready and willing to perform their part of the agreement, the High Court was of the opinion that they did not prove the same as they did not pay the balance sale consideration immediately after the disposal of the Writ petition. We find force in the submission made on behalf of the Appellants that payment of balance consideration has to be done only at the time of the registration of the sale deeds. Admittedly, no steps were taken for the registration of the sale deeds. The finding of the Division Bench of the High Court that the Appellants were not ready and willing to perform their part of the contract by not paying the balance consideration immediately after disposal of the Writ Petition is erroneous. 12. The Division Bench of the High Court agreed with the contention of the Appellants that mere fixation of time within which the contract was to be performed does not make the stipulation as to time being of the essence of the contract. However, the Appellants were found guilty of total inaction on their part. The sole ground for denial of relief to the Appellants is non payment of balance consideration immediately after disposal of the Writ Petition. The said conclusion is the result of a faulty interpretation of clause 3 of the MOUs as stated earlier. 13. The High Court highlighted the conduct of the Appellants to deny relief. The failure of the Appellants in not pleading and proving how they were put in possession of a part of the property, the frivolous complaint about vacant possession not being given by the Respondents and the attempt made by the Appellants to take forcible possession of a part of the property were commented upon to hold that the Appellants were disentitled to equitable relief. There is not dispute that the Appellants were in possession of the first floor of the property. Details about the manner in which possession was given to the Appellants not being pleaded cannot be a ground to deny relief. The contention of the Appellants before the High Court was that the Respondents should demolish the super structure and hand over vacant possession of the land. The High Court observed that the Appellants who were in possession of a part of the property cannot make such an inane plea. According to the terms of the agreement, the Respondents had to hand over vacant possession of the land. The Appellants submitted that no steps were taken to demolish the structure to highlight the inaction on the part of the Respondents. By no stretch of imagination, can it be said that the Appellants can be denied relief on this account. Yet another reason given by the Division Bench of the High Court is that the Appellants made an attempt to trespass into the ground floor where the Indian Bank was a tenant. The contention of the Appellants is that the Indian Bank was not a tenant in the ground floor but only a creditor of the Respondents. Admittedly, the Indian Bank sued the Respondents for recovery of the loan by the sale of the hypothecated goods stored in the ground floor. It was also contended on behalf of the Appellants that a police complaint was preferred by them against the Respondents for causing disturbance to their possession. The Appellants cannot be said to be disentitled for a relief of specific performance on the ground that their conduct on this count is blameworthy. 14. A suit for specific performance cannot be dismissed on the sole ground of delay or laches. However, an exception to this rule is where an immovable property is to be sold within a certain period, time being of the essence, and it is not found that owing to some default on the part of the plaintiff, the sale could not take place within the stipulated time. Once a suit for specific performance has been filed, any delay as a result of the Court process cannot be put against the plaintiff as a matter of law in decreeing specific performance. However, it is within the discretion of the Court, regard being had to the facts of each case, as to whether some additional amount ought or ought not to be paid by the plaintiff once a decree of specific performance is passed in its favour even at the appellate stage (Ferrodous Estates (Pvt) Ltd. v. P. Gopirathnam (Dead) and Others, 2020 SCC OnLine SC 825) . We are in agreement with the Appellants that they did not file the civil suits immediately after the disposal of the Writ Petition in 1998 due to the pendency of Writ Appeals. Escalation of prices cannot be the sole ground to deny specific performance (Nirmala Anand v. Advent Corpn. (P) Ltd ., (2002) 8 SCC 146 ) . We are of the considered view that the Respondents are not entitled for any additional amount as 90 per cent of the sale consideration was paid by the Appellants before 1994. It is not necessary for us to deal with the submission of the Appellants regarding the applicability of the amendment to the Specific Relief Act, 1963, in view of the conclusion that we have reached in favour of the Appellants. | 1[ds]11. There is no dispute about the agreements dated 20.03.1991 and the MOUs between the parties. It is also a fact that Income Tax Department wanted to compulsorily acquire the property, due to which Writ Petitions were filed which were disposed of on 11.09.1998. Writ Appeals filed by the Department were pending on the date of filing of the suit. The relevant clause in the MOU is that the Appellants shall pay the balance sale consideration at the time of registration of sale deeds immediately after the disposal of the Writ Petition. The Division Bench of the High Court in the impugned judgment held that the Appellants were not ready and willing to perform their part of the agreement by not depositing the balance sale consideration immediately after the disposal of the Writ Petition. The High Court lost sight of the words at the time of registration of sale in clause 3 of MOUs. A plain reading of clause 3 in the MOUs would show that the Appellants were required to pay the balance sale consideration at the time of the registration of the sale deeds immediately when the Writ Petition is disposed of upholding the sale agreement. The High Court further found fault with the Appellants in waiting for 2 years and 3 months after the disposal of the Writ Petition for filing the suits. The High Court refused to grant relief of specific performance to the Appellants on the ground that there was total inaction on the part of the Appellants for more than two years after the parties entered into the MOU. Though, it was pleaded by the Appellants in the suits that they were always ready and willing to perform their part of the agreement, the High Court was of the opinion that they did not prove the same as they did not pay the balance sale consideration immediately after the disposal of the Writ petition. We find force in the submission made on behalf of the Appellants that payment of balance consideration has to be done only at the time of the registration of the sale deeds. Admittedly, no steps were taken for the registration of the sale deeds. The finding of the Division Bench of the High Court that the Appellants were not ready and willing to perform their part of the contract by not paying the balance consideration immediately after disposal of the Writ Petition is erroneous.12. The Division Bench of the High Court agreed with the contention of the Appellants that mere fixation of time within which the contract was to be performed does not make the stipulation as to time being of the essence of the contract. However, the Appellants were found guilty of total inaction on their part. The sole ground for denial of relief to the Appellants is non payment of balance consideration immediately after disposal of the Writ Petition. The said conclusion is the result of a faulty interpretation of clause 3 of the MOUs as stated earlier.13. The High Court highlighted the conduct of the Appellants to deny relief. The failure of the Appellants in not pleading and proving how they were put in possession of a part of the property, the frivolous complaint about vacant possession not being given by the Respondents and the attempt made by the Appellants to take forcible possession of a part of the property were commented upon to hold that the Appellants were disentitled to equitable relief. There is not dispute that the Appellants were in possession of the first floor of the property. Details about the manner in which possession was given to the Appellants not being pleaded cannot be a ground to deny relief. The contention of the Appellants before the High Court was that the Respondents should demolish the super structure and hand over vacant possession of the land. The High Court observed that the Appellants who were in possession of a part of the property cannot make such an inane plea. According to the terms of the agreement, the Respondents had to hand over vacant possession of the land. The Appellants submitted that no steps were taken to demolish the structure to highlight the inaction on the part of the Respondents. By no stretch of imagination, can it be said that the Appellants can be denied relief on this account. Yet another reason given by the Division Bench of the High Court is that the Appellants made an attempt to trespass into the ground floor where the Indian Bank was a tenant. The contention of the Appellants is that the Indian Bank was not a tenant in the ground floor but only a creditor of the Respondents. Admittedly, the Indian Bank sued the Respondents for recovery of the loan by the sale of the hypothecated goods stored in the ground floor. It was also contended on behalf of the Appellants that a police complaint was preferred by them against the Respondents for causing disturbance to their possession. The Appellants cannot be said to be disentitled for a relief of specific performance on the ground that their conduct on this count is blameworthy.14. A suit for specific performance cannot be dismissed on the sole ground of delay or laches. However, an exception to this rule is where an immovable property is to be sold within a certain period, time being of the essence, and it is not found that owing to some default on the part of the plaintiff, the sale could not take place within the stipulated time. Once a suit for specific performance has been filed, any delay as a result of the Court process cannot be put against the plaintiff as a matter of law in decreeing specific performance. However, it is within the discretion of the Court, regard being had to the facts of each case, as to whether some additional amount ought or ought not to be paid by the plaintiff once a decree of specific performance is passed in its favour even at the appellate stage (Ferrodous Estates (Pvt) Ltd. v. P. Gopirathnam (Dead) and Others, 2020 SCC OnLine SC 825) . We are in agreement with the Appellants that they did not file the civil suits immediately after the disposal of the Writ Petition in 1998 due to the pendency of Writ Appeals. Escalation of prices cannot be the sole ground to deny specific performance (Nirmala Anand v. Advent Corpn. (P) Ltd ., (2002) 8 SCC 146 ) . We are of the considered view that the Respondents are not entitled for any additional amount as 90 per cent of the sale consideration was paid by the Appellants before 1994. It is not necessary for us to deal with the submission of the Appellants regarding the applicability of the amendment to the Specific Relief Act, 1963, in view of the conclusion that we have reached in favour of the Appellants. | 1 | 3,420 | 1,230 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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of MOUs. A plain reading of clause 3 in the MOUs would show that the Appellants were required to pay the balance sale consideration at the time of the registration of the sale deeds immediately when the Writ Petition is disposed of upholding the sale agreement. The High Court further found fault with the Appellants in waiting for 2 years and 3 months after the disposal of the Writ Petition for filing the suits. The High Court refused to grant relief of specific performance to the Appellants on the ground that there was total inaction on the part of the Appellants for more than two years after the parties entered into the MOU. Though, it was pleaded by the Appellants in the suits that they were always ready and willing to perform their part of the agreement, the High Court was of the opinion that they did not prove the same as they did not pay the balance sale consideration immediately after the disposal of the Writ petition. We find force in the submission made on behalf of the Appellants that payment of balance consideration has to be done only at the time of the registration of the sale deeds. Admittedly, no steps were taken for the registration of the sale deeds. The finding of the Division Bench of the High Court that the Appellants were not ready and willing to perform their part of the contract by not paying the balance consideration immediately after disposal of the Writ Petition is erroneous. 12. The Division Bench of the High Court agreed with the contention of the Appellants that mere fixation of time within which the contract was to be performed does not make the stipulation as to time being of the essence of the contract. However, the Appellants were found guilty of total inaction on their part. The sole ground for denial of relief to the Appellants is non payment of balance consideration immediately after disposal of the Writ Petition. The said conclusion is the result of a faulty interpretation of clause 3 of the MOUs as stated earlier. 13. The High Court highlighted the conduct of the Appellants to deny relief. The failure of the Appellants in not pleading and proving how they were put in possession of a part of the property, the frivolous complaint about vacant possession not being given by the Respondents and the attempt made by the Appellants to take forcible possession of a part of the property were commented upon to hold that the Appellants were disentitled to equitable relief. There is not dispute that the Appellants were in possession of the first floor of the property. Details about the manner in which possession was given to the Appellants not being pleaded cannot be a ground to deny relief. The contention of the Appellants before the High Court was that the Respondents should demolish the super structure and hand over vacant possession of the land. The High Court observed that the Appellants who were in possession of a part of the property cannot make such an inane plea. According to the terms of the agreement, the Respondents had to hand over vacant possession of the land. The Appellants submitted that no steps were taken to demolish the structure to highlight the inaction on the part of the Respondents. By no stretch of imagination, can it be said that the Appellants can be denied relief on this account. Yet another reason given by the Division Bench of the High Court is that the Appellants made an attempt to trespass into the ground floor where the Indian Bank was a tenant. The contention of the Appellants is that the Indian Bank was not a tenant in the ground floor but only a creditor of the Respondents. Admittedly, the Indian Bank sued the Respondents for recovery of the loan by the sale of the hypothecated goods stored in the ground floor. It was also contended on behalf of the Appellants that a police complaint was preferred by them against the Respondents for causing disturbance to their possession. The Appellants cannot be said to be disentitled for a relief of specific performance on the ground that their conduct on this count is blameworthy. 14. A suit for specific performance cannot be dismissed on the sole ground of delay or laches. However, an exception to this rule is where an immovable property is to be sold within a certain period, time being of the essence, and it is not found that owing to some default on the part of the plaintiff, the sale could not take place within the stipulated time. Once a suit for specific performance has been filed, any delay as a result of the Court process cannot be put against the plaintiff as a matter of law in decreeing specific performance. However, it is within the discretion of the Court, regard being had to the facts of each case, as to whether some additional amount ought or ought not to be paid by the plaintiff once a decree of specific performance is passed in its favour even at the appellate stage (Ferrodous Estates (Pvt) Ltd. v. P. Gopirathnam (Dead) and Others, 2020 SCC OnLine SC 825) . We are in agreement with the Appellants that they did not file the civil suits immediately after the disposal of the Writ Petition in 1998 due to the pendency of Writ Appeals. Escalation of prices cannot be the sole ground to deny specific performance (Nirmala Anand v. Advent Corpn. (P) Ltd ., (2002) 8 SCC 146 ) . We are of the considered view that the Respondents are not entitled for any additional amount as 90 per cent of the sale consideration was paid by the Appellants before 1994. It is not necessary for us to deal with the submission of the Appellants regarding the applicability of the amendment to the Specific Relief Act, 1963, in view of the conclusion that we have reached in favour of the Appellants.
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clause 3 of MOUs. A plain reading of clause 3 in the MOUs would show that the Appellants were required to pay the balance sale consideration at the time of the registration of the sale deeds immediately when the Writ Petition is disposed of upholding the sale agreement. The High Court further found fault with the Appellants in waiting for 2 years and 3 months after the disposal of the Writ Petition for filing the suits. The High Court refused to grant relief of specific performance to the Appellants on the ground that there was total inaction on the part of the Appellants for more than two years after the parties entered into the MOU. Though, it was pleaded by the Appellants in the suits that they were always ready and willing to perform their part of the agreement, the High Court was of the opinion that they did not prove the same as they did not pay the balance sale consideration immediately after the disposal of the Writ petition. We find force in the submission made on behalf of the Appellants that payment of balance consideration has to be done only at the time of the registration of the sale deeds. Admittedly, no steps were taken for the registration of the sale deeds. The finding of the Division Bench of the High Court that the Appellants were not ready and willing to perform their part of the contract by not paying the balance consideration immediately after disposal of the Writ Petition is erroneous.12. The Division Bench of the High Court agreed with the contention of the Appellants that mere fixation of time within which the contract was to be performed does not make the stipulation as to time being of the essence of the contract. However, the Appellants were found guilty of total inaction on their part. The sole ground for denial of relief to the Appellants is non payment of balance consideration immediately after disposal of the Writ Petition. The said conclusion is the result of a faulty interpretation of clause 3 of the MOUs as stated earlier.13. The High Court highlighted the conduct of the Appellants to deny relief. The failure of the Appellants in not pleading and proving how they were put in possession of a part of the property, the frivolous complaint about vacant possession not being given by the Respondents and the attempt made by the Appellants to take forcible possession of a part of the property were commented upon to hold that the Appellants were disentitled to equitable relief. There is not dispute that the Appellants were in possession of the first floor of the property. Details about the manner in which possession was given to the Appellants not being pleaded cannot be a ground to deny relief. The contention of the Appellants before the High Court was that the Respondents should demolish the super structure and hand over vacant possession of the land. The High Court observed that the Appellants who were in possession of a part of the property cannot make such an inane plea. According to the terms of the agreement, the Respondents had to hand over vacant possession of the land. The Appellants submitted that no steps were taken to demolish the structure to highlight the inaction on the part of the Respondents. By no stretch of imagination, can it be said that the Appellants can be denied relief on this account. Yet another reason given by the Division Bench of the High Court is that the Appellants made an attempt to trespass into the ground floor where the Indian Bank was a tenant. The contention of the Appellants is that the Indian Bank was not a tenant in the ground floor but only a creditor of the Respondents. Admittedly, the Indian Bank sued the Respondents for recovery of the loan by the sale of the hypothecated goods stored in the ground floor. It was also contended on behalf of the Appellants that a police complaint was preferred by them against the Respondents for causing disturbance to their possession. The Appellants cannot be said to be disentitled for a relief of specific performance on the ground that their conduct on this count is blameworthy.14. A suit for specific performance cannot be dismissed on the sole ground of delay or laches. However, an exception to this rule is where an immovable property is to be sold within a certain period, time being of the essence, and it is not found that owing to some default on the part of the plaintiff, the sale could not take place within the stipulated time. Once a suit for specific performance has been filed, any delay as a result of the Court process cannot be put against the plaintiff as a matter of law in decreeing specific performance. However, it is within the discretion of the Court, regard being had to the facts of each case, as to whether some additional amount ought or ought not to be paid by the plaintiff once a decree of specific performance is passed in its favour even at the appellate stage (Ferrodous Estates (Pvt) Ltd. v. P. Gopirathnam (Dead) and Others, 2020 SCC OnLine SC 825) . We are in agreement with the Appellants that they did not file the civil suits immediately after the disposal of the Writ Petition in 1998 due to the pendency of Writ Appeals. Escalation of prices cannot be the sole ground to deny specific performance (Nirmala Anand v. Advent Corpn. (P) Ltd ., (2002) 8 SCC 146 ) . We are of the considered view that the Respondents are not entitled for any additional amount as 90 per cent of the sale consideration was paid by the Appellants before 1994. It is not necessary for us to deal with the submission of the Appellants regarding the applicability of the amendment to the Specific Relief Act, 1963, in view of the conclusion that we have reached in favour of the Appellants.
|
A. Madan Mohan Vs. Kalavakunta Chandrasekhara | Civil Procedure and where a corrupt practice is alleged the petition should also be accompanied by an affidavit in the prescribed form, giving the particulars of the corrupt practice, and(d) any schedule or annexure to the petition should also be signed and verified by the petitioner.These conditions have also been fulfilled in the present case.6. The counsel for the petitioner vehemently contended that as the schedules and other documents formed an integral part of the petition, the same should have been served on the petitioner (respondent in the High Court) before it could be said that the provisions of ss. 81 and 82 of the Act had been complied with. It was further argued that in the absence of such a compliance, the petition was liable to be rejected in limine under s. 86 of the Act. We are, however, unable to agree with this contention which does not at all flow from the plain and simple requirements of ss. 81 and 82. As indicated above, all that was necessary was done in this case and there was no requirement that the documents or the schedules should also have been served on the petitioner because if they were filed in the Court it was always open to the petitioner to inspect them and find out the allegations made in the petition. We are unable to hold that the documents or the schedules formed an integral part of the petition.An identical question came up for consideration before this Court in Sahodrabais case (supra) where while repelling a similar argument the following observations were made:"The only provision to which our attention has been drawn is sub-s. (3) of s. 81 and sub-s. (2) of s. 83. The first provides that every election petition shall be accompanied by as many copies t hereof as there are respondents mentioned in the petition and that every such copy shall be an authenticated true copy. The words used here are only "the election petition." There is no mention of any document accompanying the election petition.........Assistance is however taken from the provisions of sub-s. (2) of s. 83 which provides that any schedule or any annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition. It is contended that since the pamphlet was an annexure to the petition it was not only necessary to sign and verify it, but that it should have been treated as a part of the election petition itself and a copy served upon the respondents. In this way, non-compliance with the provisions of s. 86 (1) is made out. In our opinion, this is too strict a reading of the provisions. We have already pointed out that s. 81 (3) speaks only of the election petition............Even if this be not the case, we are quite clear that sub-s. (2) of s. 83 has reference not to a document which is produced as evidence of the averments o f the election petition but to averments of the election petition which are put, not in the election petition but in the accompanying schedules or annexures.... ... ...But what we have said here does not apply to documents which are merely evidence in the case but which for reasons of clarity and to lend force to the petition are not kept back but produced or filed with the election petitions. They are in no sense an integral part of the averments of the petition but are only evidence of those averments and in proof thereof. The pamphlet therefore must be treated as a document and not as a part of the election petition in so far as averments a re concerned.........It would be stretching the words of sub-s. (2) of s. 83 too far to think that every document produced as evidence in the election petition becomes a part of the election petition proper."It is a well settled principle of interpretation of statute that wherever a statute contains stringent provisions they must be literally and strictly construed so as to promote the object of the Act. As extracted above, this Court clearly held that if the arguments of the appellant (in that case) were to be accepted, it would be stretching and straining the language of ss. 81 and 82 and we are in complete agreement with the view taken by this Court which has decided the issue once for all.7. The learned counsel relied on a latter decision of this Court in the case of M. Karunanidhi v. H. V. Hande(1) where a Division Bench while considering a similar question made the following observations:"The Preliminary issue and the appeal turn on a short point of construction. The question that arises is whether the words "copies thereof" in sub-section (3) of Section 81 comprehend the election petition proper or do they also include a schedule or annexure in terms of sub-section (2) of Section 83 or merely a document only in proof of the allegations in paragraph 18 (b) must turn on a construction of sub-section (3) of Section 81 read with sub-section (2) of Section 83. It now appears to be well settled by Sahodrabais case, (1968 (3) SCR 13 ) that sub-section (2) of section 83 applies only to a schedule or annexure which is an integral part of the election petition and not to a document which is produced as evidence of the averments of the election petition."8. This decision in no way departs from the ratio laid down in Sahodrabais case (supra). The aforesaid case however, rested on the ground that the document (pamphlet) was expressly referred to in the election petition and thus became an integral part of the same and ought to have been served on the respondent. It is, therefore, manifest that the facts of the case cited above are clearly distinguishable from the facts of the present case. Furthermore, the decision in M. Karunanidhis case (supra) has noticed the previous decision and has fully endorsed the same.Fo | 1[ds]There is no mention of any document accompanying the election petition.........Assistance is however taken from the provisions of sub-s. (2) of s. 83 which provides that any schedule or any annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition. It is contended that since the pamphlet was an annexure to the petition it was not only necessary to sign and verify it, but that it should have been treated as a part of the election petition itself and a copy served upon the respondents. In this way, non-compliance with the provisions of s. 86 (1) is made out. In our opinion, this is too strict a reading of the provisions. We have already pointed out that s. 81 (3) speaks only of the election petition............Even if this be not the case, we are quite clear that sub-s. (2) of s. 83 has reference not to a document which is produced as evidence of the averments o f the election petition but to averments of the election petition which are put, not in the election petition but in the accompanying schedules or annexures.... ... ...But what we have said here does not apply to documents which are merely evidence in the case but which for reasons of clarity and to lend force to the petition are not kept back but produced or filed with the election petitions. They are in no sense an integral part of the averments of the petition but are only evidence of those averments and in proof thereof. The pamphlet therefore must be treated as a document and not as a part of the election petition in so far as averments a re concerned.........It would be stretching the words of sub-s. (2) of s. 83 too far to think that every document produced as evidence in the election petition becomes a part of the election petitionis a well settled principle of interpretation of statute that wherever a statute contains stringent provisions they must be literally and strictly construed so as to promote the object of the Act. As extracted above, this Court clearly held that if the arguments of the appellant (in that case) were to be accepted, it would be stretching and straining the language of ss. 81 and 82 and we are in complete agreement with the view taken by this Court which has decided the issue once fordecision in no way departs from the ratio laid down in Sahodrabais case (supra). The aforesaid case however, rested on the ground that the document (pamphlet) was expressly referred to in the election petition and thus became an integral part of the same and ought to have been served on the respondent. It is, therefore, manifest that the facts of the case cited above are clearly distinguishable from the facts of the present case. Furthermore, the decision in M. Karunanidhis case (supra) has noticed the previous decision and has fully endorsed the same.For these reasons, therefore, we are clearly of t he opinion that the view taken by the High Court was correct and no interference is called for with the judgment of the High Court. As the matter was clearly concluded by authorities of this Court we did not think it necessary to grant special leave and hearing the parties at length we disposed of and dismiss the petition in terms of the aforesaidare, however, unable to agree with this contention which does not at all flow from the plain and simple requirements of ss. 81 and 82. As indicated above, all that was necessary was done in this case and there was no requirement that the documents or the schedules should also have been served on the petitioner because if they were filed in the Court it was always open to the petitioner to inspect them and find out the allegations made in the petition. We are unable to hold that the documents or the schedules formed an integral part of the petition. | 1 | 1,706 | 731 | ### 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:
Civil Procedure and where a corrupt practice is alleged the petition should also be accompanied by an affidavit in the prescribed form, giving the particulars of the corrupt practice, and(d) any schedule or annexure to the petition should also be signed and verified by the petitioner.These conditions have also been fulfilled in the present case.6. The counsel for the petitioner vehemently contended that as the schedules and other documents formed an integral part of the petition, the same should have been served on the petitioner (respondent in the High Court) before it could be said that the provisions of ss. 81 and 82 of the Act had been complied with. It was further argued that in the absence of such a compliance, the petition was liable to be rejected in limine under s. 86 of the Act. We are, however, unable to agree with this contention which does not at all flow from the plain and simple requirements of ss. 81 and 82. As indicated above, all that was necessary was done in this case and there was no requirement that the documents or the schedules should also have been served on the petitioner because if they were filed in the Court it was always open to the petitioner to inspect them and find out the allegations made in the petition. We are unable to hold that the documents or the schedules formed an integral part of the petition.An identical question came up for consideration before this Court in Sahodrabais case (supra) where while repelling a similar argument the following observations were made:"The only provision to which our attention has been drawn is sub-s. (3) of s. 81 and sub-s. (2) of s. 83. The first provides that every election petition shall be accompanied by as many copies t hereof as there are respondents mentioned in the petition and that every such copy shall be an authenticated true copy. The words used here are only "the election petition." There is no mention of any document accompanying the election petition.........Assistance is however taken from the provisions of sub-s. (2) of s. 83 which provides that any schedule or any annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition. It is contended that since the pamphlet was an annexure to the petition it was not only necessary to sign and verify it, but that it should have been treated as a part of the election petition itself and a copy served upon the respondents. In this way, non-compliance with the provisions of s. 86 (1) is made out. In our opinion, this is too strict a reading of the provisions. We have already pointed out that s. 81 (3) speaks only of the election petition............Even if this be not the case, we are quite clear that sub-s. (2) of s. 83 has reference not to a document which is produced as evidence of the averments o f the election petition but to averments of the election petition which are put, not in the election petition but in the accompanying schedules or annexures.... ... ...But what we have said here does not apply to documents which are merely evidence in the case but which for reasons of clarity and to lend force to the petition are not kept back but produced or filed with the election petitions. They are in no sense an integral part of the averments of the petition but are only evidence of those averments and in proof thereof. The pamphlet therefore must be treated as a document and not as a part of the election petition in so far as averments a re concerned.........It would be stretching the words of sub-s. (2) of s. 83 too far to think that every document produced as evidence in the election petition becomes a part of the election petition proper."It is a well settled principle of interpretation of statute that wherever a statute contains stringent provisions they must be literally and strictly construed so as to promote the object of the Act. As extracted above, this Court clearly held that if the arguments of the appellant (in that case) were to be accepted, it would be stretching and straining the language of ss. 81 and 82 and we are in complete agreement with the view taken by this Court which has decided the issue once for all.7. The learned counsel relied on a latter decision of this Court in the case of M. Karunanidhi v. H. V. Hande(1) where a Division Bench while considering a similar question made the following observations:"The Preliminary issue and the appeal turn on a short point of construction. The question that arises is whether the words "copies thereof" in sub-section (3) of Section 81 comprehend the election petition proper or do they also include a schedule or annexure in terms of sub-section (2) of Section 83 or merely a document only in proof of the allegations in paragraph 18 (b) must turn on a construction of sub-section (3) of Section 81 read with sub-section (2) of Section 83. It now appears to be well settled by Sahodrabais case, (1968 (3) SCR 13 ) that sub-section (2) of section 83 applies only to a schedule or annexure which is an integral part of the election petition and not to a document which is produced as evidence of the averments of the election petition."8. This decision in no way departs from the ratio laid down in Sahodrabais case (supra). The aforesaid case however, rested on the ground that the document (pamphlet) was expressly referred to in the election petition and thus became an integral part of the same and ought to have been served on the respondent. It is, therefore, manifest that the facts of the case cited above are clearly distinguishable from the facts of the present case. Furthermore, the decision in M. Karunanidhis case (supra) has noticed the previous decision and has fully endorsed the same.Fo
### Response:
1
### Explanation:
There is no mention of any document accompanying the election petition.........Assistance is however taken from the provisions of sub-s. (2) of s. 83 which provides that any schedule or any annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition. It is contended that since the pamphlet was an annexure to the petition it was not only necessary to sign and verify it, but that it should have been treated as a part of the election petition itself and a copy served upon the respondents. In this way, non-compliance with the provisions of s. 86 (1) is made out. In our opinion, this is too strict a reading of the provisions. We have already pointed out that s. 81 (3) speaks only of the election petition............Even if this be not the case, we are quite clear that sub-s. (2) of s. 83 has reference not to a document which is produced as evidence of the averments o f the election petition but to averments of the election petition which are put, not in the election petition but in the accompanying schedules or annexures.... ... ...But what we have said here does not apply to documents which are merely evidence in the case but which for reasons of clarity and to lend force to the petition are not kept back but produced or filed with the election petitions. They are in no sense an integral part of the averments of the petition but are only evidence of those averments and in proof thereof. The pamphlet therefore must be treated as a document and not as a part of the election petition in so far as averments a re concerned.........It would be stretching the words of sub-s. (2) of s. 83 too far to think that every document produced as evidence in the election petition becomes a part of the election petitionis a well settled principle of interpretation of statute that wherever a statute contains stringent provisions they must be literally and strictly construed so as to promote the object of the Act. As extracted above, this Court clearly held that if the arguments of the appellant (in that case) were to be accepted, it would be stretching and straining the language of ss. 81 and 82 and we are in complete agreement with the view taken by this Court which has decided the issue once fordecision in no way departs from the ratio laid down in Sahodrabais case (supra). The aforesaid case however, rested on the ground that the document (pamphlet) was expressly referred to in the election petition and thus became an integral part of the same and ought to have been served on the respondent. It is, therefore, manifest that the facts of the case cited above are clearly distinguishable from the facts of the present case. Furthermore, the decision in M. Karunanidhis case (supra) has noticed the previous decision and has fully endorsed the same.For these reasons, therefore, we are clearly of t he opinion that the view taken by the High Court was correct and no interference is called for with the judgment of the High Court. As the matter was clearly concluded by authorities of this Court we did not think it necessary to grant special leave and hearing the parties at length we disposed of and dismiss the petition in terms of the aforesaidare, however, unable to agree with this contention which does not at all flow from the plain and simple requirements of ss. 81 and 82. As indicated above, all that was necessary was done in this case and there was no requirement that the documents or the schedules should also have been served on the petitioner because if they were filed in the Court it was always open to the petitioner to inspect them and find out the allegations made in the petition. We are unable to hold that the documents or the schedules formed an integral part of the petition.
|
Krishna Coconut Co. & Another Vs. East Godavari Coconut & Tobacco Market Committee | According to him it is only when a person bought goods and sold those identical goods within the notified area that the fee under, S. 11 (1) could be levied. According to him, the transactions effected by the appellants consisted in their purchasing the said goods; they stopped at the stage of goods "bought". Therefore, the other ingredient for a valid levy of the fee not being present the fee levied in the present case was not in accordance with the requirements of S. 11 (1) and was unwarranted. This contention raises the question as to the meaning of the words "bought and sold" in S. 11 (1). At first sight they would appear to be susceptible of three meanings; viz.? (1) that they mean duality of transactions where the same person buys goods and sells these identical goods in the notified area, (2) that they mean "bought" or "sold" the conjunctive "and" meaning in the context of the sub-section the disjunctive "or" and (3) that they apply to a transaction of purchase as the concept of purchase includes a corresponding sale. When a person buys an article from another person, that other person at the same time sells him that article and it is in that sense that S. 11 (1) uses the words "bought and sold". The incidence of the fee under S. 11 (1) is on the goods thus bought and sold". This last interpretation was favoured by the High Court of Madras in Louis Dreyfus and Co. v. South Arcot Groundout Market Committee AIR 1945 Mad 383 , which has been accepted by the High Court in the present case.13. If the construction commended to us for acceptance by Mr. Agarwala were to be correct, viz. that the appellants transactions stopped at the stage of goods "bought", they would not be transactions in respect of goods "bought and sold". If the fee was vied on sales effected by the appellants with their customers its levy would not be valid under S. 11 (1) and would also be repugnant to Art. 286 where goods were delivered outside the State. But it is a well settled rule of construction that the Court should endeavour as far as possible to construe a statute in such a manner that the construction results in validity rather than its invalidity and gives effect to the manifest intention of the legislature enacting that statute. The object in passing the Act was to prevent the mischief of exploitation of producers of commercial crops such as coconuts and copra and to see that such producers got a fair price for their goods. The mischief to prevent which the Act was enacted was the exploitation of these producer by middlemen and those buying goods from them and therefore, the Act provided facilities such as a market place, place for storage, correct weighment etc., so that the producers and his purchasers come face to face in a regulated and controlled market and a fair price was obtained by them. If the construction suggested by Mr. Agarwala were to he accepted and the section were to be construed as being applicable to those transactions only which have a dual aspect, that is, buying by a dealer from a producer end the dealer selling those identical goods within the notified area, the object of the Act would be defeated, for in a large number of cases the transactions would halt at the stage of buying and the Committee in those cases would have no power to levy the fee on them. Why is a buyer or a seller or a buyer and seller required to be registered and why does the Act prevent those who have not registered themselves from effecting transactions in commercial crops unless the object was to regulate and control transactions in those commodities at all stages and in a manner preventing the exploitation of the producer. The legislature had thus principally the producer in mind who should have a proper market where he can bring his goods for sale and where he can secure a fair deal and a fair price. The Act thus aims at transactions which such a producer would enter into with those who buy from him. The words "bought and sold" used in S. 11 (1) aim at those transactions whereunder a dealer buys from a producer who brings to the market his goods for sale. The transactions aimed at must be viewed in the sense in which the legislature intended it to be viewed, that is, as one transaction resulting in buying on the one hand and selling on the other. Such a construction is commendable because it is not only in consonance with the words used in S. 11 (1) but is consistent with the object of the Act as expressed through its various provisions. The construction on the other hand canvassed by the appellants is defeative of the purpose of the Act and should, unless we are compelled to accept it, be avoided. The construction which we are inclined to accept acquires some support from the fact that S. 11 (1) makes the purchaser and not the seller primarily responsible for payment of the fee and it is only when the purchaser cannot be identified that the seller is made liable.14. Mr. Agarwala at first also urged that the fee under S. 11 (1) amounted to a tax and that it was in fact a sales tax. But at the last moment he stated that he did not wish to press that contention and requested us not to express any opinion thereon. Since the contention is not pressed we need not express any opinion on that question and confine ourselves to the question as to the interpretation of the words "bought and sold" in that section.15. In our view the construction placed by the High Court on S. 11. (1) was a correct construction and, therefore, the respondent committee had rightly charged the appellants with the said fee.16. | 0[ds]It is true that in Para. 3 of their plaint the appellants averred that their business activities consisted of buying coconuts and copra in East Godavari District and selling them to customers outside the notified area and even the State and that those sales were completed at the respective places of those customers. The appellants case, therefore, was that in respect of these sales with customers some of whom were outside the notified area and the rest outside the State, the levy of fee was in the former case beyond the ken of S. 11 (1) and in the latter case repugnant to Art. 286 of the Constitution. The written statement of the respondent committee denied these allegations. The Committee asserted that both the purchases and sales took place in the notified area and that though the fee levied by it was on sales by the appellants and though delivery of the said goods thereunder took place outside the notified area the sales in respect thereof were made within the notified area and, therefore, the question of the levy under S. 11 (1) being repugnant to Art. 286 of the Constitution did not arise.Besides these pleadings Mr. Agarwala drew our attention to certain notices of demand and circulars issued by the Committee in which it was stated that the said fee was being levied on goods exported outside East Godavari District and that the traders were liable to pay it both on coconuts exported to outsiders and also consumed internally. That presumably was stated because if the goods were "bought and sold" within the notified area, even if they were subsequently exported outside, S. 11(1) would apply. The practice followed by the appellants and not denied by the Committee was that they used to despatch these goods by rail to their customers. Railway receipts and hundies were then sent to their bankers at the destination and railway receipts were delivered to the customers on their honouring the hundies. Thus the goods were delivered outside the notified area and the sales effected by the appellants to their customers were also completed at places outside the notified area and in some cases outside the State.If the construction commended to us for acceptance by Mr. Agarwala were to be correct, viz. that the appellants transactions stopped at the stage of goods "bought", they would not be transactions in respect of goods "bought and sold". If the fee was vied on sales effected by the appellants with their customers its levy would not be valid under S. 11 (1) and would also be repugnant to Art. 286 where goods were delivered outside the State. But it is a well settled rule of construction that the Court should endeavour as far as possible to construe a statute in such a manner that the construction results in validity rather than its invalidity and gives effect to the manifest intention of the legislature enacting that statute. The object in passing the Act was to prevent the mischief of exploitation of producers of commercial crops such as coconuts and copra and to see that such producers got a fair price for their goods. The mischief to prevent which the Act was enacted was the exploitation of these producer by middlemen and those buying goods from them and therefore, the Act provided facilities such as a market place, place for storage, correct weighment etc., so that the producers and his purchasers come face to face in a regulated and controlled market and a fair price was obtained by them. If the construction suggested by Mr. Agarwala were to he accepted and the section were to be construed as being applicable to those transactions only which have a dual aspect, that is, buying by a dealer from a producer end the dealer selling those identical goods within the notified area, the object of the Act would be defeated, for in a large number of cases the transactions would halt at the stage of buying and the Committee in those cases would have no power to levy the fee on them. Why is a buyer or a seller or a buyer and seller required to be registered and why does the Act prevent those who have not registered themselves from effecting transactions in commercial crops unless the object was to regulate and control transactions in those commodities at all stages and in a manner preventing the exploitation of the producer. The legislature had thus principally the producer in mind who should have a proper market where he can bring his goods for sale and where he can secure a fair deal and a fair price. The Act thus aims at transactions which such a producer would enter into with those who buy from him. The words "bought and sold" used in S. 11 (1) aim at those transactions whereunder a dealer buys from a producer who brings to the market his goods for sale. The transactions aimed at must be viewed in the sense in which the legislature intended it to be viewed, that is, as one transaction resulting in buying on the one hand and selling on the other. Such a construction is commendable because it is not only in consonance with the words used in S. 11 (1) but is consistent with the object of the Act as expressed through its various provisions. The construction on the other hand canvassed by the appellants is defeative of the purpose of the Act and should, unless we are compelled to accept it, be avoided. The construction which we are inclined to accept acquires some support from the fact that S. 11 (1) makes the purchaser and not the seller primarily responsible for payment of the fee and it is only when the purchaser cannot be identified that the seller is made liable.In our view the construction placed by the High Court on S. 11. (1) was a correct construction and, therefore, the respondent committee had rightly charged the appellants with the said fee. | 0 | 4,297 | 1,082 | ### 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:
According to him it is only when a person bought goods and sold those identical goods within the notified area that the fee under, S. 11 (1) could be levied. According to him, the transactions effected by the appellants consisted in their purchasing the said goods; they stopped at the stage of goods "bought". Therefore, the other ingredient for a valid levy of the fee not being present the fee levied in the present case was not in accordance with the requirements of S. 11 (1) and was unwarranted. This contention raises the question as to the meaning of the words "bought and sold" in S. 11 (1). At first sight they would appear to be susceptible of three meanings; viz.? (1) that they mean duality of transactions where the same person buys goods and sells these identical goods in the notified area, (2) that they mean "bought" or "sold" the conjunctive "and" meaning in the context of the sub-section the disjunctive "or" and (3) that they apply to a transaction of purchase as the concept of purchase includes a corresponding sale. When a person buys an article from another person, that other person at the same time sells him that article and it is in that sense that S. 11 (1) uses the words "bought and sold". The incidence of the fee under S. 11 (1) is on the goods thus bought and sold". This last interpretation was favoured by the High Court of Madras in Louis Dreyfus and Co. v. South Arcot Groundout Market Committee AIR 1945 Mad 383 , which has been accepted by the High Court in the present case.13. If the construction commended to us for acceptance by Mr. Agarwala were to be correct, viz. that the appellants transactions stopped at the stage of goods "bought", they would not be transactions in respect of goods "bought and sold". If the fee was vied on sales effected by the appellants with their customers its levy would not be valid under S. 11 (1) and would also be repugnant to Art. 286 where goods were delivered outside the State. But it is a well settled rule of construction that the Court should endeavour as far as possible to construe a statute in such a manner that the construction results in validity rather than its invalidity and gives effect to the manifest intention of the legislature enacting that statute. The object in passing the Act was to prevent the mischief of exploitation of producers of commercial crops such as coconuts and copra and to see that such producers got a fair price for their goods. The mischief to prevent which the Act was enacted was the exploitation of these producer by middlemen and those buying goods from them and therefore, the Act provided facilities such as a market place, place for storage, correct weighment etc., so that the producers and his purchasers come face to face in a regulated and controlled market and a fair price was obtained by them. If the construction suggested by Mr. Agarwala were to he accepted and the section were to be construed as being applicable to those transactions only which have a dual aspect, that is, buying by a dealer from a producer end the dealer selling those identical goods within the notified area, the object of the Act would be defeated, for in a large number of cases the transactions would halt at the stage of buying and the Committee in those cases would have no power to levy the fee on them. Why is a buyer or a seller or a buyer and seller required to be registered and why does the Act prevent those who have not registered themselves from effecting transactions in commercial crops unless the object was to regulate and control transactions in those commodities at all stages and in a manner preventing the exploitation of the producer. The legislature had thus principally the producer in mind who should have a proper market where he can bring his goods for sale and where he can secure a fair deal and a fair price. The Act thus aims at transactions which such a producer would enter into with those who buy from him. The words "bought and sold" used in S. 11 (1) aim at those transactions whereunder a dealer buys from a producer who brings to the market his goods for sale. The transactions aimed at must be viewed in the sense in which the legislature intended it to be viewed, that is, as one transaction resulting in buying on the one hand and selling on the other. Such a construction is commendable because it is not only in consonance with the words used in S. 11 (1) but is consistent with the object of the Act as expressed through its various provisions. The construction on the other hand canvassed by the appellants is defeative of the purpose of the Act and should, unless we are compelled to accept it, be avoided. The construction which we are inclined to accept acquires some support from the fact that S. 11 (1) makes the purchaser and not the seller primarily responsible for payment of the fee and it is only when the purchaser cannot be identified that the seller is made liable.14. Mr. Agarwala at first also urged that the fee under S. 11 (1) amounted to a tax and that it was in fact a sales tax. But at the last moment he stated that he did not wish to press that contention and requested us not to express any opinion thereon. Since the contention is not pressed we need not express any opinion on that question and confine ourselves to the question as to the interpretation of the words "bought and sold" in that section.15. In our view the construction placed by the High Court on S. 11. (1) was a correct construction and, therefore, the respondent committee had rightly charged the appellants with the said fee.16.
### Response:
0
### Explanation:
true that in Para. 3 of their plaint the appellants averred that their business activities consisted of buying coconuts and copra in East Godavari District and selling them to customers outside the notified area and even the State and that those sales were completed at the respective places of those customers. The appellants case, therefore, was that in respect of these sales with customers some of whom were outside the notified area and the rest outside the State, the levy of fee was in the former case beyond the ken of S. 11 (1) and in the latter case repugnant to Art. 286 of the Constitution. The written statement of the respondent committee denied these allegations. The Committee asserted that both the purchases and sales took place in the notified area and that though the fee levied by it was on sales by the appellants and though delivery of the said goods thereunder took place outside the notified area the sales in respect thereof were made within the notified area and, therefore, the question of the levy under S. 11 (1) being repugnant to Art. 286 of the Constitution did not arise.Besides these pleadings Mr. Agarwala drew our attention to certain notices of demand and circulars issued by the Committee in which it was stated that the said fee was being levied on goods exported outside East Godavari District and that the traders were liable to pay it both on coconuts exported to outsiders and also consumed internally. That presumably was stated because if the goods were "bought and sold" within the notified area, even if they were subsequently exported outside, S. 11(1) would apply. The practice followed by the appellants and not denied by the Committee was that they used to despatch these goods by rail to their customers. Railway receipts and hundies were then sent to their bankers at the destination and railway receipts were delivered to the customers on their honouring the hundies. Thus the goods were delivered outside the notified area and the sales effected by the appellants to their customers were also completed at places outside the notified area and in some cases outside the State.If the construction commended to us for acceptance by Mr. Agarwala were to be correct, viz. that the appellants transactions stopped at the stage of goods "bought", they would not be transactions in respect of goods "bought and sold". If the fee was vied on sales effected by the appellants with their customers its levy would not be valid under S. 11 (1) and would also be repugnant to Art. 286 where goods were delivered outside the State. But it is a well settled rule of construction that the Court should endeavour as far as possible to construe a statute in such a manner that the construction results in validity rather than its invalidity and gives effect to the manifest intention of the legislature enacting that statute. The object in passing the Act was to prevent the mischief of exploitation of producers of commercial crops such as coconuts and copra and to see that such producers got a fair price for their goods. The mischief to prevent which the Act was enacted was the exploitation of these producer by middlemen and those buying goods from them and therefore, the Act provided facilities such as a market place, place for storage, correct weighment etc., so that the producers and his purchasers come face to face in a regulated and controlled market and a fair price was obtained by them. If the construction suggested by Mr. Agarwala were to he accepted and the section were to be construed as being applicable to those transactions only which have a dual aspect, that is, buying by a dealer from a producer end the dealer selling those identical goods within the notified area, the object of the Act would be defeated, for in a large number of cases the transactions would halt at the stage of buying and the Committee in those cases would have no power to levy the fee on them. Why is a buyer or a seller or a buyer and seller required to be registered and why does the Act prevent those who have not registered themselves from effecting transactions in commercial crops unless the object was to regulate and control transactions in those commodities at all stages and in a manner preventing the exploitation of the producer. The legislature had thus principally the producer in mind who should have a proper market where he can bring his goods for sale and where he can secure a fair deal and a fair price. The Act thus aims at transactions which such a producer would enter into with those who buy from him. The words "bought and sold" used in S. 11 (1) aim at those transactions whereunder a dealer buys from a producer who brings to the market his goods for sale. The transactions aimed at must be viewed in the sense in which the legislature intended it to be viewed, that is, as one transaction resulting in buying on the one hand and selling on the other. Such a construction is commendable because it is not only in consonance with the words used in S. 11 (1) but is consistent with the object of the Act as expressed through its various provisions. The construction on the other hand canvassed by the appellants is defeative of the purpose of the Act and should, unless we are compelled to accept it, be avoided. The construction which we are inclined to accept acquires some support from the fact that S. 11 (1) makes the purchaser and not the seller primarily responsible for payment of the fee and it is only when the purchaser cannot be identified that the seller is made liable.In our view the construction placed by the High Court on S. 11. (1) was a correct construction and, therefore, the respondent committee had rightly charged the appellants with the said fee.
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Municipal Board, Mainpuri Vs. Kanhaiya Lal | Subba. Rao, J.1. This appeal raises the question of true interpretation of S. 128 of the U. P. Municipalities Act, 1916, (hereinafter called the Act). The facts lie in a small compass and they are not in dispute.2. The State Government issued a notification defining the municipal limits of the town of Mainpuri. Under this notification the goods-shed of the Mainpuri railway station is included within Mainpuri municipal limits. but the rest of the station is excluded therefrom. A motorable road connects the station with the main inhabited area of the town. The Municipality fixed a toll - barrier on this road between the railway goods-shed and the inhabited area of the town. The Mainpuri Electric Supply and General Mills Co. Ltd., Mainpuri, supplies electricity to Mainpuri town. It purchases coal from places outside Mainpuri and receives the same in railway wagons, which are unloaded and kept in the goods-shed, The respondent owns a truck. He was engaged to carry the coal from the goods-shed to the premises of the electric Company, which is inside the town. He loaded his truck with coal at the railway goods shed and was taking the same to the premises of the electric Company, when he was asked to pay toll-tax at the toll-barrier, but he did not pay it. He was prosecuted under Section 299(1) of the Act, read with Rule 1 of the Rules for assessment and collection of toll tax. The respondent denied his liability to pay the tax. The Sub-Divisional Magistrate convicted him under the said Section and directed him to pay a fine of Rs. 67/8/-. On appeal, the learned Sessions Judge, Mainpuri, confirmed the same. In revision, the High Court set aside the conviction and acquitted the accused. The Municipality by special leave has preferred this appeal.3. Learned Counsel for the appellant contends that on a true construction of S. 128 of the Act and the Rules framed thereunder, the respondent was guilty of the offence with which he was charged. As the question raised turns upon the construction of the said provisions, it would be convenient to read the relevant provisions at this stage."Section 128. (1) Subject to any general rules or special orders of the State Government in this behalf, the taxes which a board may impose in the whole or any part of a municipality are -..... ..... ..... ..... ..... .....(vii) a toll on vehicles and other conveyances, animals, and laden coolies entering the municipality.Section 153. The following matters shall be regulated and governed by rules except in so far as provisions therefor is made by this Act, namely,-(a) the assessment, collection or composition of taxes, and, in the case of octroi or toll, the determination of octroi or toll limit."Rules framed by the Municipality, Mainpuri.Rule 1. "No person shall bring within the limits of the Mainpuri Municipality :-Any laden vehicle or laden animal in respect of which a toll is leviable under notification No. 1866/XXIII-97 of 31-1-1921 until the toll due thereof has been paid to such persons, and at such barriers as the board may from time to time appoint."..... ..... ..... ..... ..... .....Rule 3. "When any laden coolie or any person in charge of a laden vehicle, or a laden animal wishes to pass banier, such coolie or person shall pay the toll due to the Moharir at the barrier..........""Any breach of these Rules amounts to an offence under S. 299(1) of the Act, and is punishable under the penalty clause of the Rules which is in these words."Any breach of the Rules 1, 2, 3 and 4 above shall be punishable with fine which may extend to Rs. 50 but shall in no case be less than ten times the amount due from the offender on account of the tax."The following ingredients of the offence may be gathered from a combined reading of the said provisions: (1) The toll is on vehicles; (2) a person cannot bring a laden vehicle without paying the prescribed toll within the limits of the Municipality from without; (3) the person in charge of such vehicle must pay a toll at the barrier; and (4) if he does not pay, he is liable to punishment. It is clear from the wording of the provisions that they are designed for collecting toll from laden vehicles entering the municipal limit from without. Subject to any general rules or special orders of the State Government in this behalf - it is not suggested that there are any such - the municipal boards power under S. 128(vii) of the Act to levy toll on conveyances is confined only to those "entering the municipality".The word "entering" in S. 128(vii) of the Act clearly indicates that the conveyance to be liable to the toll must enter the Municipality from places outside it. By no stretch of language it is possible to hold that a vehicle which is already in the limits of the Municipality, when it plies for hire, enters the municipal limits. So too, the words "bring within the limits of Mainpuri Municipality" in Rule 1 emphasize the idea that a laden vehicle cannot be brought within the Municipality until the toll due has been paid. One cannot bring within the Municipality a vehicle which is already in the Municipality.Confronted with the clear terminology used both in the Section as well as in the Rules, the learned counsel for the appellant attempted to argue that the words "Mainpuri Municipality" are comprehensive enough to take in part or parts of that Municipality and, therefore, when a laden vehicle passes from one part of the Municipality to another part, it has to pay toll if there is a barrier between the two parts. This argument may perhaps be ingenious, but to our mind it is clearly unsound.We find it well nigh impossible to hold that a vehicle is brought within the limits of the Municipality when it is brought from one part of the Municipality to another part. | 0[ds]The following ingredients of the offence may be gathered from a combined reading of the said provisions: (1) The toll is on vehicles; (2) a person cannot bring a laden vehicle without paying the prescribed toll within the limits of the Municipality from without; (3) the person in charge of such vehicle must pay a toll at the barrier; and (4) if he does not pay, he is liable to punishment. It is clear from the wording of the provisions that they are designed for collecting toll from laden vehicles entering the municipal limit from without. Subject to any general rules or special orders of the State Government in this behalfit is not suggested that there are any suchthe municipal boards power under S. 128(vii) of the Act to levy toll on conveyances is confined only to those "entering the municipality".The word "entering" in S. 128(vii) of the Act clearly indicates that the conveyance to be liable to the toll must enter the Municipality from places outside it. By no stretch of language it is possible to hold that a vehicle which is already in the limits of the Municipality, when it plies for hire, enters the municipal limits. So too, the words "bring within the limits of Mainpuri Municipality" in Rule 1 emphasize the idea that a laden vehicle cannot be brought within the Municipality until the toll due has been paid. One cannot bring within the Municipality a vehicle which is already in the Municipality.Confronted with the clear terminology used both in the Section as well as in the Rules, the learned counsel for the appellant attempted to argue that the words "Mainpuri Municipality" are comprehensive enough to take in part or parts of that Municipality and, therefore, when a laden vehicle passes from one part of the Municipality to another part, it has to pay toll if there is a barrier between the two parts. This argument may perhaps be ingenious, but to our mind it is clearly unsound.We find it well nigh impossible to hold that a vehicle is brought within the limits of the Municipality when it is brought from one part of the Municipality to another part. | 0 | 1,143 | 413 | ### 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:
Subba. Rao, J.1. This appeal raises the question of true interpretation of S. 128 of the U. P. Municipalities Act, 1916, (hereinafter called the Act). The facts lie in a small compass and they are not in dispute.2. The State Government issued a notification defining the municipal limits of the town of Mainpuri. Under this notification the goods-shed of the Mainpuri railway station is included within Mainpuri municipal limits. but the rest of the station is excluded therefrom. A motorable road connects the station with the main inhabited area of the town. The Municipality fixed a toll - barrier on this road between the railway goods-shed and the inhabited area of the town. The Mainpuri Electric Supply and General Mills Co. Ltd., Mainpuri, supplies electricity to Mainpuri town. It purchases coal from places outside Mainpuri and receives the same in railway wagons, which are unloaded and kept in the goods-shed, The respondent owns a truck. He was engaged to carry the coal from the goods-shed to the premises of the electric Company, which is inside the town. He loaded his truck with coal at the railway goods shed and was taking the same to the premises of the electric Company, when he was asked to pay toll-tax at the toll-barrier, but he did not pay it. He was prosecuted under Section 299(1) of the Act, read with Rule 1 of the Rules for assessment and collection of toll tax. The respondent denied his liability to pay the tax. The Sub-Divisional Magistrate convicted him under the said Section and directed him to pay a fine of Rs. 67/8/-. On appeal, the learned Sessions Judge, Mainpuri, confirmed the same. In revision, the High Court set aside the conviction and acquitted the accused. The Municipality by special leave has preferred this appeal.3. Learned Counsel for the appellant contends that on a true construction of S. 128 of the Act and the Rules framed thereunder, the respondent was guilty of the offence with which he was charged. As the question raised turns upon the construction of the said provisions, it would be convenient to read the relevant provisions at this stage."Section 128. (1) Subject to any general rules or special orders of the State Government in this behalf, the taxes which a board may impose in the whole or any part of a municipality are -..... ..... ..... ..... ..... .....(vii) a toll on vehicles and other conveyances, animals, and laden coolies entering the municipality.Section 153. The following matters shall be regulated and governed by rules except in so far as provisions therefor is made by this Act, namely,-(a) the assessment, collection or composition of taxes, and, in the case of octroi or toll, the determination of octroi or toll limit."Rules framed by the Municipality, Mainpuri.Rule 1. "No person shall bring within the limits of the Mainpuri Municipality :-Any laden vehicle or laden animal in respect of which a toll is leviable under notification No. 1866/XXIII-97 of 31-1-1921 until the toll due thereof has been paid to such persons, and at such barriers as the board may from time to time appoint."..... ..... ..... ..... ..... .....Rule 3. "When any laden coolie or any person in charge of a laden vehicle, or a laden animal wishes to pass banier, such coolie or person shall pay the toll due to the Moharir at the barrier..........""Any breach of these Rules amounts to an offence under S. 299(1) of the Act, and is punishable under the penalty clause of the Rules which is in these words."Any breach of the Rules 1, 2, 3 and 4 above shall be punishable with fine which may extend to Rs. 50 but shall in no case be less than ten times the amount due from the offender on account of the tax."The following ingredients of the offence may be gathered from a combined reading of the said provisions: (1) The toll is on vehicles; (2) a person cannot bring a laden vehicle without paying the prescribed toll within the limits of the Municipality from without; (3) the person in charge of such vehicle must pay a toll at the barrier; and (4) if he does not pay, he is liable to punishment. It is clear from the wording of the provisions that they are designed for collecting toll from laden vehicles entering the municipal limit from without. Subject to any general rules or special orders of the State Government in this behalf - it is not suggested that there are any such - the municipal boards power under S. 128(vii) of the Act to levy toll on conveyances is confined only to those "entering the municipality".The word "entering" in S. 128(vii) of the Act clearly indicates that the conveyance to be liable to the toll must enter the Municipality from places outside it. By no stretch of language it is possible to hold that a vehicle which is already in the limits of the Municipality, when it plies for hire, enters the municipal limits. So too, the words "bring within the limits of Mainpuri Municipality" in Rule 1 emphasize the idea that a laden vehicle cannot be brought within the Municipality until the toll due has been paid. One cannot bring within the Municipality a vehicle which is already in the Municipality.Confronted with the clear terminology used both in the Section as well as in the Rules, the learned counsel for the appellant attempted to argue that the words "Mainpuri Municipality" are comprehensive enough to take in part or parts of that Municipality and, therefore, when a laden vehicle passes from one part of the Municipality to another part, it has to pay toll if there is a barrier between the two parts. This argument may perhaps be ingenious, but to our mind it is clearly unsound.We find it well nigh impossible to hold that a vehicle is brought within the limits of the Municipality when it is brought from one part of the Municipality to another part.
### Response:
0
### Explanation:
The following ingredients of the offence may be gathered from a combined reading of the said provisions: (1) The toll is on vehicles; (2) a person cannot bring a laden vehicle without paying the prescribed toll within the limits of the Municipality from without; (3) the person in charge of such vehicle must pay a toll at the barrier; and (4) if he does not pay, he is liable to punishment. It is clear from the wording of the provisions that they are designed for collecting toll from laden vehicles entering the municipal limit from without. Subject to any general rules or special orders of the State Government in this behalfit is not suggested that there are any suchthe municipal boards power under S. 128(vii) of the Act to levy toll on conveyances is confined only to those "entering the municipality".The word "entering" in S. 128(vii) of the Act clearly indicates that the conveyance to be liable to the toll must enter the Municipality from places outside it. By no stretch of language it is possible to hold that a vehicle which is already in the limits of the Municipality, when it plies for hire, enters the municipal limits. So too, the words "bring within the limits of Mainpuri Municipality" in Rule 1 emphasize the idea that a laden vehicle cannot be brought within the Municipality until the toll due has been paid. One cannot bring within the Municipality a vehicle which is already in the Municipality.Confronted with the clear terminology used both in the Section as well as in the Rules, the learned counsel for the appellant attempted to argue that the words "Mainpuri Municipality" are comprehensive enough to take in part or parts of that Municipality and, therefore, when a laden vehicle passes from one part of the Municipality to another part, it has to pay toll if there is a barrier between the two parts. This argument may perhaps be ingenious, but to our mind it is clearly unsound.We find it well nigh impossible to hold that a vehicle is brought within the limits of the Municipality when it is brought from one part of the Municipality to another part.
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Commissioner of Income Tax, Amritsar Vs. Shiv Prakash Janak Raj and Company Private Limited | the remaining twenty-five per cent amount as its income in its assessment proceedings. The Income Tax Officer and the Appellate Assistant Commissioner held that the commission amount @ ten per cent of the freight had already accrued to the assessee during the previous year ending on 31-3-1948 and since the assessee had given up seventy-five per cent of the said amount after such accrual, the whole of the commission amount, which was actually credited in the books of assessee, it includible in its income. On appeal, there was a difference of opinion between the two members of the Tribunal. On reference to the President, he held that even though the actual reduction took place after the year of account was over, there was in fact an agreement to reduce the commission even during the currency of the accounting year and hence, it cannot be said that the large income @ ten per cent) had accrued to the assessee-firm. Accordingly, the assessees appeal was allowed by the Tribunal. Thereupon, the following two questions were referred to the High Court under Section 66, viz. "(1) Whether the two sums of Rs 1, 36, 903 and Rs 2, 00, 625 are income of the previous year ended 31-3-1948 ?. (2) If the answer to the first question is in the affirmative, whether they represent an item of expenditure permissible under the provisions of Section 10(2)(xv) of the Indian Income Tax Act, 1922, in computing the assessees income of that previous year from its managing agency business ?" * 12. The High Court agreed with the view taken by the President of the Tribunal and answered the first question in the negative, i.e., in favour of the assessee and against the Revenue. It declined to express any opinion on the second question. This Court affirmed the approach adopted by the President of the Tribunal and the High Court. It pointed out. "Here too, the agreements within the previous year replaced the earlier agreements, and altered the rate in such a way as to make the income different from what had been entered in the books of account. A mere book-keeping entry cannot be income, unless income has actually resulted, and in the present case, by the change of the terms the income which accrued and was received consisted of the lesser amounts and not the larger. This was not a gift by the assessee firm to the managed companies. The reduction was a part of the agreement entered into by the assessee firm to secure a long-term managing agency arrangement for the two companies which it had floated." * 13. Hidayatullah, J., speaking for himself and J.C. Shah, J., observed that the facts of the case before them were identical to the facts of the case in CIT v. Chamanlal Mangaldas & Co. and that the principle of the said decision squarely applied to the facts of the case before them. In the course of the judgment, the learned Judge observed"Income tax is a levy on income. No doubt, the Income Tax Act takes into account two points of time at which the liability to tax is attracted, viz., the accrual of the income or its receipt; but the substance of the matter is the income. If income does not result at all, there cannot be a tax, even though in book-keeping, an entry is made about a hypothetical income, which does not materialise. Where income has, in fact, been received and is subsequently given up in such circumstances that it remains the income of the recipient, even though given up, the tax may be payable. Where, however, the income can be said not to have resulted at all, there is obviously neither accrual nor receipt of income, even though an entry to that effect might, in certain circumstances, have been made in the books of account. This is exactly what has happened in this case, as it happened in the Bombay case CIT v. Chamanlal Mangaldas & Co. (Bom)] which was approved by this Court." 14. We may also mention that when this case was cited before this Court in State Bank of Travancore it has been distinguished on the basis of the above fact, viz., that the agreement to give up seventy-five per cent of the commission was arrived at during the relevant previous year itself, i.e., before the close of the previous year and, therefore, what accrued to the assessee at the end of the relevant previous year was the commission at 2 1/2 per cent of the freight alone and not @ ten per cent. It cannot, therefore, be said that this case lays down any principle contrary to the one enunciated in Morvi Industries Ltd., Since the facts of the case in Chamanlal Mangaldas & Co. are identical to the facts in Shoorji Vallabhdas & Co. we do not think it necessary to refer to the facts of that case separately. 15. Shri G.C. Sharma submitted that applying the real income theory, it must be held that no interest had really accrued to or received by the assessee for the said three assessment years (1969-70, 1970-71 and 1971-72) and that indeed, no such entries were made in the account books of the assessee. He submitted that, as a fact, no income was received and that the assessee cannot be asked to pay tax on income which it had not received. We answer this contention by repeating the words of Sabyasachi Mukharji, J. in State Bank of Travancore which we have extracted hereinabove. The concept of real income cannot be employed so as to defeat the provisions of the Act and the Rules. Where the provisions of the Act and the Rules apply, it is only those provisions which must be applied and followed. There is no room - nor would be permissible for the court - to import the concept of real income so as to whittle down, qualify or defeat the provisions of the Act and the Rules. | 1[ds]We are, however, concerned only with the first answer given by the High Court. In our opinion, there is no contradiction or inconsistency between the holding in this case and the holding in Morvi Industries Ltd. In this case, the important fact found was that the money became due to the assessee not at the end of the accounting year, but on the date the managed company made up its accounts. Indeed, no date was fixed in the agreement for payment of the commission and the assessee gave up its commission even before it accrued to it, i.e., before the managed company made up its account. It is for this reason, this Court held that the commission had not accrued to the assessee by or before the date it gave it up. Indeed, Hegde, J., speaking for himself and Khanna, J., specifically referred to the decision in Morvi Industries Ltd. and distinguished it on the above basis. We are, therefore, unable to agree with the High Court that by the virtue of the decision of this Court in Birla Gwalior (P) Ltd. the principle of Morvi Industries Ltd. does not apply to the present case. The facts of the present case (with respect to three assessment years, viz., 1969-70, 1970-71 and 1971-72) so squarely fall within the principle of Morvi Industries Ltd10. We respectfully agree with the propositions as well as the observations of the learned Judge with respect to the plea of real income14. We may also mention that when this case was cited before this Court in State Bank of Travancore it has been distinguished on the basis of the above fact, viz., that the agreement to give up seventy-five per cent of the commission was arrived at during the relevant previous year itself, i.e., before the close of the previous year and, therefore, what accrued to the assessee at the end of the relevant previous year was the commission at 2 1/2 per cent of the freight alone and not @ ten per cent. It cannot, therefore, be said that this case lays down any principle contrary to the one enunciated in Morvi Industries Ltd., Since the facts of the case in Chamanlal Mangaldas & Co. are identical to the facts in Shoorji Vallabhdas & Co. we do not think it necessary to refer to the facts of that case separatelyWe answer this contention by repeating the words of Sabyasachi Mukharji, J. in State Bank of Travancore which we have extracted hereinabove. The concept of real income cannot be employed so as to defeat the provisions of the Act and the Rules. Where the provisions of the Act and the Rules apply, it is only those provisions which must be applied and followed. There is no room - nor would be permissible for the court - to import the concept of real income so as to whittle down, qualify or defeat the provisions of the Act and the Rules | 1 | 5,113 | 546 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
the remaining twenty-five per cent amount as its income in its assessment proceedings. The Income Tax Officer and the Appellate Assistant Commissioner held that the commission amount @ ten per cent of the freight had already accrued to the assessee during the previous year ending on 31-3-1948 and since the assessee had given up seventy-five per cent of the said amount after such accrual, the whole of the commission amount, which was actually credited in the books of assessee, it includible in its income. On appeal, there was a difference of opinion between the two members of the Tribunal. On reference to the President, he held that even though the actual reduction took place after the year of account was over, there was in fact an agreement to reduce the commission even during the currency of the accounting year and hence, it cannot be said that the large income @ ten per cent) had accrued to the assessee-firm. Accordingly, the assessees appeal was allowed by the Tribunal. Thereupon, the following two questions were referred to the High Court under Section 66, viz. "(1) Whether the two sums of Rs 1, 36, 903 and Rs 2, 00, 625 are income of the previous year ended 31-3-1948 ?. (2) If the answer to the first question is in the affirmative, whether they represent an item of expenditure permissible under the provisions of Section 10(2)(xv) of the Indian Income Tax Act, 1922, in computing the assessees income of that previous year from its managing agency business ?" * 12. The High Court agreed with the view taken by the President of the Tribunal and answered the first question in the negative, i.e., in favour of the assessee and against the Revenue. It declined to express any opinion on the second question. This Court affirmed the approach adopted by the President of the Tribunal and the High Court. It pointed out. "Here too, the agreements within the previous year replaced the earlier agreements, and altered the rate in such a way as to make the income different from what had been entered in the books of account. A mere book-keeping entry cannot be income, unless income has actually resulted, and in the present case, by the change of the terms the income which accrued and was received consisted of the lesser amounts and not the larger. This was not a gift by the assessee firm to the managed companies. The reduction was a part of the agreement entered into by the assessee firm to secure a long-term managing agency arrangement for the two companies which it had floated." * 13. Hidayatullah, J., speaking for himself and J.C. Shah, J., observed that the facts of the case before them were identical to the facts of the case in CIT v. Chamanlal Mangaldas & Co. and that the principle of the said decision squarely applied to the facts of the case before them. In the course of the judgment, the learned Judge observed"Income tax is a levy on income. No doubt, the Income Tax Act takes into account two points of time at which the liability to tax is attracted, viz., the accrual of the income or its receipt; but the substance of the matter is the income. If income does not result at all, there cannot be a tax, even though in book-keeping, an entry is made about a hypothetical income, which does not materialise. Where income has, in fact, been received and is subsequently given up in such circumstances that it remains the income of the recipient, even though given up, the tax may be payable. Where, however, the income can be said not to have resulted at all, there is obviously neither accrual nor receipt of income, even though an entry to that effect might, in certain circumstances, have been made in the books of account. This is exactly what has happened in this case, as it happened in the Bombay case CIT v. Chamanlal Mangaldas & Co. (Bom)] which was approved by this Court." 14. We may also mention that when this case was cited before this Court in State Bank of Travancore it has been distinguished on the basis of the above fact, viz., that the agreement to give up seventy-five per cent of the commission was arrived at during the relevant previous year itself, i.e., before the close of the previous year and, therefore, what accrued to the assessee at the end of the relevant previous year was the commission at 2 1/2 per cent of the freight alone and not @ ten per cent. It cannot, therefore, be said that this case lays down any principle contrary to the one enunciated in Morvi Industries Ltd., Since the facts of the case in Chamanlal Mangaldas & Co. are identical to the facts in Shoorji Vallabhdas & Co. we do not think it necessary to refer to the facts of that case separately. 15. Shri G.C. Sharma submitted that applying the real income theory, it must be held that no interest had really accrued to or received by the assessee for the said three assessment years (1969-70, 1970-71 and 1971-72) and that indeed, no such entries were made in the account books of the assessee. He submitted that, as a fact, no income was received and that the assessee cannot be asked to pay tax on income which it had not received. We answer this contention by repeating the words of Sabyasachi Mukharji, J. in State Bank of Travancore which we have extracted hereinabove. The concept of real income cannot be employed so as to defeat the provisions of the Act and the Rules. Where the provisions of the Act and the Rules apply, it is only those provisions which must be applied and followed. There is no room - nor would be permissible for the court - to import the concept of real income so as to whittle down, qualify or defeat the provisions of the Act and the Rules.
### Response:
1
### Explanation:
We are, however, concerned only with the first answer given by the High Court. In our opinion, there is no contradiction or inconsistency between the holding in this case and the holding in Morvi Industries Ltd. In this case, the important fact found was that the money became due to the assessee not at the end of the accounting year, but on the date the managed company made up its accounts. Indeed, no date was fixed in the agreement for payment of the commission and the assessee gave up its commission even before it accrued to it, i.e., before the managed company made up its account. It is for this reason, this Court held that the commission had not accrued to the assessee by or before the date it gave it up. Indeed, Hegde, J., speaking for himself and Khanna, J., specifically referred to the decision in Morvi Industries Ltd. and distinguished it on the above basis. We are, therefore, unable to agree with the High Court that by the virtue of the decision of this Court in Birla Gwalior (P) Ltd. the principle of Morvi Industries Ltd. does not apply to the present case. The facts of the present case (with respect to three assessment years, viz., 1969-70, 1970-71 and 1971-72) so squarely fall within the principle of Morvi Industries Ltd10. We respectfully agree with the propositions as well as the observations of the learned Judge with respect to the plea of real income14. We may also mention that when this case was cited before this Court in State Bank of Travancore it has been distinguished on the basis of the above fact, viz., that the agreement to give up seventy-five per cent of the commission was arrived at during the relevant previous year itself, i.e., before the close of the previous year and, therefore, what accrued to the assessee at the end of the relevant previous year was the commission at 2 1/2 per cent of the freight alone and not @ ten per cent. It cannot, therefore, be said that this case lays down any principle contrary to the one enunciated in Morvi Industries Ltd., Since the facts of the case in Chamanlal Mangaldas & Co. are identical to the facts in Shoorji Vallabhdas & Co. we do not think it necessary to refer to the facts of that case separatelyWe answer this contention by repeating the words of Sabyasachi Mukharji, J. in State Bank of Travancore which we have extracted hereinabove. The concept of real income cannot be employed so as to defeat the provisions of the Act and the Rules. Where the provisions of the Act and the Rules apply, it is only those provisions which must be applied and followed. There is no room - nor would be permissible for the court - to import the concept of real income so as to whittle down, qualify or defeat the provisions of the Act and the Rules
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Sushil Suri Vs. C.B.I. & Another | Cr.P.C. was also dismissed by the High Court. In further appeal to this Court, accepting the contention of the appellant that this Court could transcend the limitation imposed under Section 320 of the Cr.P.C. and pass orders quashing criminal proceedings even where non compoundable offences were involved, quashing the criminal proceedings the Court observed thus: "30. In the instant case, the disputes between the Company and the Bank have been set at rest on the basis of the compromise arrived at by them whereunder the dues of the Bank have been cleared and the Bank does not appear to have any further claim against the Company. What, however, remains is the fact that certain documents were alleged to have been created by the appellant herein in order to avail of credit facilities beyond the limit to which the Company was entitled. The dispute involved herein has overtones of a civil dispute with certain criminal facets. The question which is required to be answered in this case is whether the power which independently lies with this Court to quash the criminal proceedings pursuant to the compromise arrived at, should at all be exercised? 31. On an overall view of the facts as indicated hereinabove and keeping in mind the decision of this Court in B.S. Joshi case and the compromise arrived at between the Company and the Bank as also Clause 11 of the consent terms filed in the suit filed by the Bank, we are satisfied that this is a fit case where technicality should not be allowed to stand in the way in the quashing of the criminal proceedings, since, in our view, the continuance of the same after the compromise arrived at between the parties would be a futile exercise." [Emphasis supplied] 20. A bare reading of the afore-extracted paragraphs would indicate that the question posed for consideration in that case was with regard to the power of this Court under Article 142 of the Constitution of India to quash the criminal proceedings in the facts and circumstances of a given case and not in relation to the powers of the High Court under Section 482 of the Cr.P.C. The Court came to the conclusion that it was a fit case where it should exercise its powers under Article 142 of the Constitution. In our opinion, Nikhil Merchant (supra) does not hold as an absolute proposition of law that whenever a dispute between the parties, having overtones of a civil dispute with criminal facets is settled between them, continuance of criminal proceedings would be an exercise in futility and, therefore, should be quashed. Similarly, in B.S. Joshi & Ors. (supra), which has been relied upon in Nikhil Merchant (supra), the question for consideration was whether the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or Complaint for offences which are not compoundable under Section 320 of the Cr.P.C. It was held that Section 320 cannot limit or affect the powers of the High Court under Section 482 of the Cr.P.C., a well settled proposition of law. We are of the opinion that Nikhil Merchant (supra) as also the other two judgments relied upon on behalf of the appellant are clearly distinguishable on facts. It needs little emphasis that even one additional or different fact may make a world of difference between the conclusions in two cases and blindly placing reliance on a decision is never proper. It is trite that while applying ratio, the Court may not pick out a word or sentence from the judgment divorced from the context in which the said question arose for consideration. (See: Zee Telefilms Ltd. & Anr. Vs. Union of India & Anr. (2005) 4 SCC 649 )). In this regard, the following words of Lord Denning, quoted in Haryana Financial Corporation & Anr. Vs. Jagdamba Oil Mills & Anr. (2002) 3 SCC 496 ), are also quite apt: "Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive." 21. In the present case, having regard to the modus operandi adopted by the accused, as projected in the Chargesheet and briefly referred to in para 17 (supra), we have no hesitation in holding that it is not a fit case for exercise of jurisdiction by the High Court under Section 482 of the Cr.P.C. as also by this Court under Article 142 of the Constitution of India. As noted above, the accused had not only duped PSB, they had also availed of depreciation on the machinery, which was never purchased and used by them, causing loss to the exchequer, a serious economic offence against the society. 22. The view we have taken above, gets fortified by a recent decision of this Court in Rumi Dhar (supra), wherein while dealing with a fact situation, akin to the present case, referring to the decision in Nikhil Merchant (supra), the Court declined to quash criminal proceedings in that case, observing thus: "24. The jurisdiction of the Court under Article 142 of the Constitution of India is not in dispute. Exercise of such power would, however, depend on the facts and circumstances of each case. The High Court, in exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure, and this Court, in terms of Article 142 of the Constitution of India, would not direct quashing of a case involving crime against the society particularly when both the learned Special Judge as also the High Court have found that a prima facie case has been made out against the appellant herein for framing the charge." | 0[ds]16. Having examined the case in light of the allegations in the Chargesheet, we are of the opinion that the view taken by the High Court in the matter cannot be flawed and deserves to be affirmed. It is manifest from a bare reading of the Chargesheet, placed on record, that the gravamen of the allegations against the appellant as also the co-accused is that the Company, acting through its directors in concert with the Chartered Accountants and some other persons: (i) conceived a criminal conspiracy and executed it by forging and fabricating a number of documents, like photographs of old machines, purchase orders and invoices showing purchase of machinery in order to support their claim to avail hire purchase loan from PSB; (ii) on the strength of these false documents, PSB parted with the money by issuing pay orders & demand drafts in favour of the Company and (iii) the accused opened six fictitious accounts in the banks (four accounts in Bank of Rajasthan and two in Bank of Madura) to encash the pay orders/bank drafts issued by PSB in favour of the suppliers of machines, thereby directly rotating back the loan amount to the borrower from these fictitious accounts, and in the process committed a systematic fraud on the Bank (PSB) and obtained pecuniary advantage for themselves. Precise details of all the fictitious accounts as also the further flow of money realised on encashment of demand drafts/pay orders have been incorporated in the ChargesheetAdditionally, by allegedly claiming depreciation on the new machinery, which was never purchased, on the basis of forged invoices etc.; the accused cheated the public exchequer as well17. As afore-stated, in the Chargesheet, the accused are alleged to have committed offences punishable under Section 120B, read with Sections 420, 409, 468 and 471 IPC. We feel that at this preliminary stage of proceedings, it would neither be desirable nor proper to return a final finding as to whether the essential ingredients of the said Sections are satisfied. For the purpose of the present appeal, it will suffice to observe that on a conspectus of the factual scenario, noted above, prima facie, the Chargesheet does disclose the commission of offences by the appellant under the afore-noted Sections. The essential ingredient of the offence of "criminal conspiracy", defined in Section 120A IPC, is the agreement to commit an offence. In a case where the agreement is for accomplishment of an act which by itself constitutes an offence, then in that event, unless the Statute so requires, no overt act is necessary to be proved by the prosecution because in such a fact-situation criminal conspiracy is established by proving such an agreement. In other words, where the conspiracy alleged is with regard to commission of a serious crime of the nature as contemplated in Section 120B read with the proviso to sub-section (2) of Section 120A IPC, then in that event mere proof of an agreement between the accused for commission of such crime alone is enough to bring about a conviction under Section 120B and the proof of any overt act by the accused or by any one of them would not be necessary. (See: Suresh Chandra Bahri Vs. State of Bihar (1995 Supp (1) SCC 80) 1)18. Similarly, the definition of "forgery" in Section 463 IPC is very wide. The basic elements of forgery are: (i) the making of a false document or part of it and (ii) such making should be with such intention as is specified in the Section viz. (a) to cause damage or injury to (i) the public, or (ii) any person; or (b) to support any claim or title; or (c) to cause any person to part with property; or (d) to cause any person to enter into an express or implied contract; or (e) to commit fraud or that fraud may be committed. As stated above, in the instant case more than sufficient circumstances exist suggesting the hatching of criminal conspiracy and forgery of several documents leading to commission of the aforementioned Sections. We refrain from saying more on the subject at this juncture, lest it may cause prejudice to the appellant or the prosecution19. We may now advert to the decision of this Court in the case of Nikhil Merchant (supra), on which great emphasis was laid, on behalf of the appellant. In that case a Chargesheet was filed by the CBI against the accused under Section 120B read with Sections 420, 467, 468, 471 IPC read with Sections 5(2) and 5(1)(d) of the Prevention of Corruption Act, 1947 and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. The allegation under the Chargesheet was that the accused persons had conspired with each other in fraudulently diverting the funds of the Bank. Offence alleging forgery was also included in the ChargesheetIn the meantime, the suit for recovery of money filed by the Bank against the Company, to which the appellant in that case was also a party, was disposed of on a written compromise arrived at between the partiesConsequent upon the compromise of the suit and having regard to the contents of clause 11 of the consent terms, which stipulated that neither party had any claim against the other and parties were withdrawing all allegations and counter allegations made against each other, the said appellant filed an application for discharge. The application was rejected by the trial court. A petition preferred under Section 482 of the Cr.P.C. was also dismissed by the High Court. In further appeal to this Court, accepting the contention of the appellant that this Court could transcend the limitation imposed under Section 320 of the Cr.P.C. and pass orders quashing criminal proceedings even where non compoundable offences were involved, quashing the criminal proceedings the Court observed thus:"30. In the instant case, the disputes between the Company and the Bank have been set at rest on the basis of the compromise arrived at by them whereunder the dues of the Bank have been cleared and the Bank does not appear to have any further claim against the Company. What, however, remains is the fact that certain documents were alleged to have been created by the appellant herein in order to avail of credit facilities beyond the limit to which the Company was entitled. The dispute involved herein has overtones of a civil dispute with certain criminal facets. The question which is required to be answered in this case is whether the power which independently lies with this Court to quash the criminal proceedings pursuant to the compromise arrived at, should at all be exercised?31. On an overall view of the facts as indicated hereinabove and keeping in mind the decision of this Court in B.S. Joshi case and the compromise arrived at between the Company and the Bank as also Clause 11 of the consent terms filed in the suit filed by the Bank, we are satisfied that this is a fit case where technicality should not be allowed to stand in the way in the quashing of the criminal proceedings, since, in our view, the continuance of the same after the compromise arrived at between the parties would be a futile exercise."20. A bare reading of the afore-extracted paragraphs would indicate that the question posed for consideration in that case was with regard to the power of this Court under Article 142 of the Constitution of India to quash the criminal proceedings in the facts and circumstances of a given case and not in relation to the powers of the High Court under Section 482 of the Cr.P.C. The Court came to the conclusion that it was a fit case where it should exercise its powers under Article 142 of the Constitution. In our opinion, Nikhil Merchant (supra) does not hold as an absolute proposition of law that whenever a dispute between the parties, having overtones of a civil dispute with criminal facets is settled between them, continuance of criminal proceedings would be an exercise in futility and, therefore, should be quashed. Similarly, in B.S. Joshi & Ors. (supra), which has been relied upon in Nikhil Merchant (supra), the question for consideration was whether the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or Complaint for offences which are not compoundable under Section 320 of the Cr.P.C. It was held that Section 320 cannot limit or affect the powers of the High Court under Section 482 of the Cr.P.C., a well settled proposition of law. We are of the opinion that Nikhil Merchant (supra) as also the other two judgments relied upon on behalf of the appellant are clearly distinguishable on facts. It needs little emphasis that even one additional or different fact may make a world of difference between the conclusions in two cases and blindly placing reliance on a decision is never proper. It is trite that while applying ratio, the Court may not pick out a word or sentence from the judgment divorced from the context in which the said question arose for consideration. (See: Zee Telefilms Ltd. & Anr. Vs. Union of India & Anr. (2005) 4 SCC 649 )). In this regard, the following words of Lord Denning, quoted in Haryana Financial Corporation & Anr. Vs. Jagdamba Oil Mills & Anr. (2002) 3 SCC 496 ), are also quite apt:"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."21. In the present case, having regard to the modus operandi adopted by the accused, as projected in the Chargesheet and briefly referred to in para 17 (supra), we have no hesitation in holding that it is not a fit case for exercise of jurisdiction by the High Court under Section 482 of the Cr.P.C. as also by this Court under Article 142 of the Constitution of India. As noted above, the accused had not only duped PSB, they had also availed of depreciation on the machinery, which was never purchased and used by them, causing loss to the exchequer, a serious economic offence against the society22. The view we have taken above, gets fortified by a recent decision of this Court in Rumi Dhar (supra), wherein while dealing with a fact situation, akin to the present case, referring to the decision in Nikhil Merchant (supra), the Court declined to quash criminal proceedings in that case, observing thus:"24. The jurisdiction of the Court under Article 142 of the Constitution of India is not in dispute. Exercise of such power would, however, depend on the facts and circumstances of each case. The High Court, in exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure, and this Court, in terms of Article 142 of the Constitution of India, would not direct quashing of a case involving crime against the society particularly when both the learned Special Judge as also the High Court have found that a prima facie case has been made out against the appellant herein for framing the charge." | 0 | 5,535 | 2,166 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
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Cr.P.C. was also dismissed by the High Court. In further appeal to this Court, accepting the contention of the appellant that this Court could transcend the limitation imposed under Section 320 of the Cr.P.C. and pass orders quashing criminal proceedings even where non compoundable offences were involved, quashing the criminal proceedings the Court observed thus: "30. In the instant case, the disputes between the Company and the Bank have been set at rest on the basis of the compromise arrived at by them whereunder the dues of the Bank have been cleared and the Bank does not appear to have any further claim against the Company. What, however, remains is the fact that certain documents were alleged to have been created by the appellant herein in order to avail of credit facilities beyond the limit to which the Company was entitled. The dispute involved herein has overtones of a civil dispute with certain criminal facets. The question which is required to be answered in this case is whether the power which independently lies with this Court to quash the criminal proceedings pursuant to the compromise arrived at, should at all be exercised? 31. On an overall view of the facts as indicated hereinabove and keeping in mind the decision of this Court in B.S. Joshi case and the compromise arrived at between the Company and the Bank as also Clause 11 of the consent terms filed in the suit filed by the Bank, we are satisfied that this is a fit case where technicality should not be allowed to stand in the way in the quashing of the criminal proceedings, since, in our view, the continuance of the same after the compromise arrived at between the parties would be a futile exercise." [Emphasis supplied] 20. A bare reading of the afore-extracted paragraphs would indicate that the question posed for consideration in that case was with regard to the power of this Court under Article 142 of the Constitution of India to quash the criminal proceedings in the facts and circumstances of a given case and not in relation to the powers of the High Court under Section 482 of the Cr.P.C. The Court came to the conclusion that it was a fit case where it should exercise its powers under Article 142 of the Constitution. In our opinion, Nikhil Merchant (supra) does not hold as an absolute proposition of law that whenever a dispute between the parties, having overtones of a civil dispute with criminal facets is settled between them, continuance of criminal proceedings would be an exercise in futility and, therefore, should be quashed. Similarly, in B.S. Joshi & Ors. (supra), which has been relied upon in Nikhil Merchant (supra), the question for consideration was whether the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or Complaint for offences which are not compoundable under Section 320 of the Cr.P.C. It was held that Section 320 cannot limit or affect the powers of the High Court under Section 482 of the Cr.P.C., a well settled proposition of law. We are of the opinion that Nikhil Merchant (supra) as also the other two judgments relied upon on behalf of the appellant are clearly distinguishable on facts. It needs little emphasis that even one additional or different fact may make a world of difference between the conclusions in two cases and blindly placing reliance on a decision is never proper. It is trite that while applying ratio, the Court may not pick out a word or sentence from the judgment divorced from the context in which the said question arose for consideration. (See: Zee Telefilms Ltd. & Anr. Vs. Union of India & Anr. (2005) 4 SCC 649 )). In this regard, the following words of Lord Denning, quoted in Haryana Financial Corporation & Anr. Vs. Jagdamba Oil Mills & Anr. (2002) 3 SCC 496 ), are also quite apt: "Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive." 21. In the present case, having regard to the modus operandi adopted by the accused, as projected in the Chargesheet and briefly referred to in para 17 (supra), we have no hesitation in holding that it is not a fit case for exercise of jurisdiction by the High Court under Section 482 of the Cr.P.C. as also by this Court under Article 142 of the Constitution of India. As noted above, the accused had not only duped PSB, they had also availed of depreciation on the machinery, which was never purchased and used by them, causing loss to the exchequer, a serious economic offence against the society. 22. The view we have taken above, gets fortified by a recent decision of this Court in Rumi Dhar (supra), wherein while dealing with a fact situation, akin to the present case, referring to the decision in Nikhil Merchant (supra), the Court declined to quash criminal proceedings in that case, observing thus: "24. The jurisdiction of the Court under Article 142 of the Constitution of India is not in dispute. Exercise of such power would, however, depend on the facts and circumstances of each case. The High Court, in exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure, and this Court, in terms of Article 142 of the Constitution of India, would not direct quashing of a case involving crime against the society particularly when both the learned Special Judge as also the High Court have found that a prima facie case has been made out against the appellant herein for framing the charge."
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court. A petition preferred under Section 482 of the Cr.P.C. was also dismissed by the High Court. In further appeal to this Court, accepting the contention of the appellant that this Court could transcend the limitation imposed under Section 320 of the Cr.P.C. and pass orders quashing criminal proceedings even where non compoundable offences were involved, quashing the criminal proceedings the Court observed thus:"30. In the instant case, the disputes between the Company and the Bank have been set at rest on the basis of the compromise arrived at by them whereunder the dues of the Bank have been cleared and the Bank does not appear to have any further claim against the Company. What, however, remains is the fact that certain documents were alleged to have been created by the appellant herein in order to avail of credit facilities beyond the limit to which the Company was entitled. The dispute involved herein has overtones of a civil dispute with certain criminal facets. The question which is required to be answered in this case is whether the power which independently lies with this Court to quash the criminal proceedings pursuant to the compromise arrived at, should at all be exercised?31. On an overall view of the facts as indicated hereinabove and keeping in mind the decision of this Court in B.S. Joshi case and the compromise arrived at between the Company and the Bank as also Clause 11 of the consent terms filed in the suit filed by the Bank, we are satisfied that this is a fit case where technicality should not be allowed to stand in the way in the quashing of the criminal proceedings, since, in our view, the continuance of the same after the compromise arrived at between the parties would be a futile exercise."20. A bare reading of the afore-extracted paragraphs would indicate that the question posed for consideration in that case was with regard to the power of this Court under Article 142 of the Constitution of India to quash the criminal proceedings in the facts and circumstances of a given case and not in relation to the powers of the High Court under Section 482 of the Cr.P.C. The Court came to the conclusion that it was a fit case where it should exercise its powers under Article 142 of the Constitution. In our opinion, Nikhil Merchant (supra) does not hold as an absolute proposition of law that whenever a dispute between the parties, having overtones of a civil dispute with criminal facets is settled between them, continuance of criminal proceedings would be an exercise in futility and, therefore, should be quashed. Similarly, in B.S. Joshi & Ors. (supra), which has been relied upon in Nikhil Merchant (supra), the question for consideration was whether the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or Complaint for offences which are not compoundable under Section 320 of the Cr.P.C. It was held that Section 320 cannot limit or affect the powers of the High Court under Section 482 of the Cr.P.C., a well settled proposition of law. We are of the opinion that Nikhil Merchant (supra) as also the other two judgments relied upon on behalf of the appellant are clearly distinguishable on facts. It needs little emphasis that even one additional or different fact may make a world of difference between the conclusions in two cases and blindly placing reliance on a decision is never proper. It is trite that while applying ratio, the Court may not pick out a word or sentence from the judgment divorced from the context in which the said question arose for consideration. (See: Zee Telefilms Ltd. & Anr. Vs. Union of India & Anr. (2005) 4 SCC 649 )). In this regard, the following words of Lord Denning, quoted in Haryana Financial Corporation & Anr. Vs. Jagdamba Oil Mills & Anr. (2002) 3 SCC 496 ), are also quite apt:"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."21. In the present case, having regard to the modus operandi adopted by the accused, as projected in the Chargesheet and briefly referred to in para 17 (supra), we have no hesitation in holding that it is not a fit case for exercise of jurisdiction by the High Court under Section 482 of the Cr.P.C. as also by this Court under Article 142 of the Constitution of India. As noted above, the accused had not only duped PSB, they had also availed of depreciation on the machinery, which was never purchased and used by them, causing loss to the exchequer, a serious economic offence against the society22. The view we have taken above, gets fortified by a recent decision of this Court in Rumi Dhar (supra), wherein while dealing with a fact situation, akin to the present case, referring to the decision in Nikhil Merchant (supra), the Court declined to quash criminal proceedings in that case, observing thus:"24. The jurisdiction of the Court under Article 142 of the Constitution of India is not in dispute. Exercise of such power would, however, depend on the facts and circumstances of each case. The High Court, in exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure, and this Court, in terms of Article 142 of the Constitution of India, would not direct quashing of a case involving crime against the society particularly when both the learned Special Judge as also the High Court have found that a prima facie case has been made out against the appellant herein for framing the charge."
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Girja Nandini And Ors Vs. Bijendra Narain Choudhury | before the panchas that all the properties held by the parties (the group of the plaintiff and the defendants 1st party) including those acquired in the names of the defendants 1, 3, 6 and Bidya Narain Choudhary as also those acquired in the name of the defendant 24, who is the son of the sister of the defendants 1, 2 and 6 were the joint properties of the plaintiff and themselves, and they also admitted that the plaintiffs share in all the properties was half and it was suggested that a list of all the joint properties should be drawn up for the purpose of partition and accounts and it should be looked", and by paragraph 19 the plaintiff Bijendra Narain claimed a share in the properties including the properties standing in the name of the 24th defendant. It was not alleged by Bijendra Narain that any property was purchased by the 24th defendant on his behalf or on behalf of another person through whom he, Bijendra Narain claimed. Bijendra Narain claimed that all properties standing in the name of Bidya Narain and his sons and also of Bashistha Narain (defendant No. 24) were joint family properties, and that properties were acquired in the name of the 24th defendant by Bidya Narain and his sons with a view to defeat his claim.He did not set up the case that the 24th defendant acquired the properties for him, nor did he plead that the properties were acquired for some person through whom he was claiming. His claim was that the properties belonged to the joint family, because they were purchased by Bidya Narain and his sons with the aid of joint family funds in the name of the 24th defendant. Such a claim does not fall within the terms of S. 66 (1).The judgment of this court A. Ventatasubbaiah v. Chilakamarthi Kotaiah, C. A. No. 120 of 1964, D/- 12-8-1965 (SC) does not assist the case of the appellants. The decision of the case turned on the true interpretation of S. 66(2). It was found in A. Venkatasubbaiahs case, C. A. No. 120 of 1964, D/- 12-8-1965 (SC) by the Trial Court and by a single Judge of the High Court of Madras that the property in dispute was purchased at a court auction by the defendant as agent for the plaintiff and with the funds belonging to the plaintiff, but it was purchased in the defendants name without the consent of the plaintiff who was the real purchaser. The case fell squarely within the terms of sub-section (2) of S. 66. A Full Bench of the High Court of Madras on a reference made in an appeal under the Letters Patent held that such a suit was not maintainable. This Court pointed out that on the facts proved, there was no doubt that the auction purchaser had acted as agent of the plaintiff and had taken advantage of the fact that the plaintiffs mother placed confidence in him and had entrusted to him management of the plaintiffs estate and the suit could not be dismissed under S. 66(1). for it was expressly covered by the terms of S. 66(2) which provides that nothing in subsection (1) shall bar a suit to obtain a declaration that the name of any purchaser certified as mentioned in cl. (1) was inserted in the certificate fraudulently or without the consent of the real purchaser. The contention raised by the appellants must therefore fail.14. Finally, it was urged that since defendants Mode Narain and Rajballav Narain had died during the pendency of the proceedings, the High Court was incompetent to pass a decree for account against their estates. Rajballav who was defendant No. 6 died during the pendency of the suit in the Trial Court and Mode Narain who was defendant No. 1 in the suit died during the pendency of the appeal in the High Court. But a claim for rendition of account is not a personal claim. It is not extinguished because the party who claims an account, the party who is called upon to account dies. The maxim actio personalis moritur cum persona" a personal action dies with the person, has a limited application. It operates in a limited class of actions ex delicto such as actions for damages for defamation, assault or other personal injuries not causing the death of the party, and in other actions where after the death of the party the relief granted could not be enjoyed or granting it would be nugatory. An action for account is not an action for damages ex delicto, and does not fall within the enumerated classes. Nor is it such that the relief claimed being personal could not be enjoyed after death, or granting it would be nugatory. Death of the person liable to render an account for property received by him does not therefore affect the liability of his estate. It may be noticed that this question was not raised in the Trial Court and in the High Court. It was merely contended that because the plaintiff Bijendra Narain was receiving income of the lands of his share no decree for accounts could be made. The High Court rejected the contention that no account would be directed in favour of the plaintiff on that account. They pointed out that the mere fact that the plaintiff was in possession of some portion of properties of the joint family since 1941 cannot possibly absolve the defendants, who were in charge of their dealings with the management of the properties, from rendering accounts of the joint family estate. The plaintiff was since September 1941 severed from the joint family in estate and also in mess and residence, and he was entitled to claim an account from the defendants from September 1941, but not for past dealings. The fact that the plaintiff is in possession of some of the properties will, of course, have to be taken into account in finally adjusting the account.15 | 0[ds]Transactions which are called benami are lawful and are not prohibited. When it is alleged that a person in whose name the property is purchased or entered in the public record is not the real owner, the Court may, if the claim is proved, grant relief upholding the claim of the real owner. But S. 66(1) seeks to oust the jurisdiction of the Court to give effect to real as against benami title. The object of the clause is to prevent claims before the civil Court that the certified purchaser purchased the property benami for another person. Thereby the jurisdiction of the civil Court to give effect to the real as against the nominal title is restricted and the Section must be strictly construed. Where a person alleges that a property purchased at a Court auction was purchased on his behalf or on behalf of someone through whom he claims, the suit is clearly barred. But the suit filed by Bijendra Narain is not of that nature. By paragraph 13 of the plaint it was averred that "the defendant No. 1 and his brothers and their father admitted before the panchas that all the properties held by the parties (the group of the plaintiff and the defendants 1st party) including those acquired in the names of the defendants 1, 3, 6 and Bidya Narain Choudhary as also those acquired in the name of the defendant 24, who is the son of the sister of the defendants 1, 2 and 6 were the joint properties of the plaintiff and themselves, and they also admitted that the plaintiffs share in all the properties was half and it was suggested that a list of all the joint properties should be drawn up for the purpose of partition and accounts and it should be looked", and by paragraph 19 the plaintiff Bijendra Narain claimed a share in the properties including the properties standing in the name of the 24th defendant. It was not alleged by Bijendra Narain that any property was purchased by the 24th defendant on his behalf or on behalf of another person through whom he, Bijendra Narain claimed. Bijendra Narain claimed that all properties standing in the name of Bidya Narain and his sons and also of Bashistha Narain (defendant No. 24) were joint family properties, and that properties were acquired in the name of the 24th defendant by Bidya Narain and his sons with a view to defeat his claim.He did not set up the case that the 24th defendant acquired the properties for him, nor did he plead that the properties were acquired for some person through whom he was claiming. His claim was that the properties belonged to the joint family, because they were purchased by Bidya Narain and his sons with the aid of joint family funds in the name of the 24th defendant. Such a claim does not fall within the terms of S. 66 (1).The judgment of this court A. Ventatasubbaiah v. Chilakamarthi Kotaiah, C. A. No. 120 of 1964, D/- 12-8-1965 (SC) does not assist the case of the appellants. The decision of the case turned on the true interpretation of S. 66(2). It was found in A. Venkatasubbaiahs case, C. A. No. 120 of 1964, D/- 12-8-1965 (SC) by the Trial Court and by a single Judge of the High Court of Madras that the property in dispute was purchased at a court auction by the defendant as agent for the plaintiff and with the funds belonging to the plaintiff, but it was purchased in the defendants name without the consent of the plaintiff who was the real purchaser. The case fell squarely within the terms of sub-section (2) of S. 66. A Full Bench of the High Court of Madras on a reference made in an appeal under the Letters Patent held that such a suit was not maintainable. This Court pointed out that on the facts proved, there was no doubt that the auction purchaser had acted as agent of the plaintiff and had taken advantage of the fact that the plaintiffs mother placed confidence in him and had entrusted to him management of the plaintiffs estate and the suit could not be dismissed under S. 66(1). for it was expressly covered by the terms of S. 66(2) which provides that nothing in subsection (1) shall bar a suit to obtain a declaration that the name of any purchaser certified as mentioned in cl. (1) was inserted in the certificate fraudulently or without the consent of the real purchaser. The contention raised by the appellants must therefore fail.In a Hindu undivided family governed by the Mitakshara law, no individual member of that family, while it remains undivided, can predicate that he has a certain definite share in the property of the family. The rights of the coparceners are defined when there is partition. Partition consists in defining the shares of the coparceners in the joint property, actual division of the property by metes and bounds is not necessary to constitute partition. Once the shares are defined, whether by agreement between the parties or otherwise, partition is complete. The parties may thereafter choose to divide the property by metes and bounds, or may continue to live together and enjoy the property in common as before. If they live together, the mode of enjoyment alone remains joint, but not the tenure of the property.7. Partition may ordinarily be effected by institution of a suit, by submitting the dispute as to division of the properties to arbitrators, by a demand for a share in the properties, or by conduct which evinces an intention to sever the joint family : it may also be effected by agreement to divide the property. But in each case the conduct must evidence unequivocally intention to sever the joint family status. Merely because one member of a family severs his relation, there is no presumption that there is severance between the other members: the question whether there is severance between the other members is one of fact to be determined on a review of all the attendant circumstances.8. In the present case, Udit Narain adopted son of Rahu Nandan and the sons of Shyam Narain claimed collectively a half share in the property of the joint family and instituted a suit for that purpose. By that demand, there was severance between the branches of Talebar, and Shyam Narain from the joint family and because of the specification of shares, and a direction of allotment of shares in separate lots to the descendants of Indra Narain and Chandra Narain severance between those two branches may also be inferred. But severance between the members of the branches inter se may not in the absence of expression of unequivocal intention be inferred. There is no evidence of expression of any such intention by Bidya Narain and his sons to divide themselves from Bijendra Narain: they made no such claim in the suit. It is true that a compromise preliminary decree was passed in the suit. But Bijendra Narain was a minor at the date of that decree and was represented in the suit by his uncle Bidya Narain. There could evidently be no agreement between Bidya Narain acting in his own personal capacity and acting as aof Bijendra Narain to sever the joint family status. Specification by the decree of the shares of Bidya Narain and his sons on the one hand and of Bijendra Narain on the other, does not by itself constitute severance of Bidya Narain and his sons from Bijendra Narain. The specification of shares must be read in the context of Cl. (1) of the decree which directed division of the estate in three lotsthe observations were strictly germane to the decision of the case before the Judicial Committee is immaterial, since in our judgment they enunciate a correct statement of the law relating to the principles to be borne in mind in determining when the fact of severance is denied. It is from the intention to sever followed by conduct which seeks to effectuate that intention, that partition results; mere specification of share without evidence of intention to sever does not result in partition. By Cl. (c) of the preliminary decree the shares of the various parties were specified, but by cl. (1) a division by metes and bounds was directed between the branches of Talebar and Shyam Narain on the one hand, of Indra Narain on the second and Chandra Narain on the third. Clause (1) did not evidence an intention to bring about severance between the members of the four branches; it is inconsistent with such intention.Certain other pieces of evidence on which reliance was placed by counsel for the appellants in support of his claim that there was under the preliminary decree severance of the joint family status may also be referred to. Girdhar Narain grandson of Indra Narain was appointed in suit No. 27 of 1923 receiver of the properties and he continued to hold that office till 1936. Girdhar Narain said that he was maintaining accounts during the period of his management as receiver, and that out of the surplus which remained with him he paid to Bijendra Narain in 1944 Rs. 1500 for his two anna share. It was claimed that this was strong evidence indicating that Bijendra Narains share was not only specified but was also separated from that of Bidya Narain and his sons. It is difficult to believe that a receiver of property could be discharged before he submitted his accounts and handed into court the collections made by him and that Girdhar Narain was permitted to retain the surplus collections with him for eight years after he ceased to be the receiver of the estate. But assuming that the statement was true, the circumstance that he paid the plaintiff Bijendra Narain a share in the surplus collections equivalent to his share in the joint family property, after this suit was instituted in 1942, does not evidence severance by the preliminary decree in Suit No. 27 ofappears that there are several certified copies of the preliminary decree on the record, and in some of these certified copies the recital on which reliance was placed is not found incorporated. The Trial Court on a review of the evidence came to the conclusion that this recital which is said to be made in the handwriting of Mode Narain who is a party to thisnot be relied upon since it was not found in the certified copies of the same decree furnished on earlier occasions. Before the Trial Court, it appears Exts. 29 and 29(b)the certified copies of the same decree Ext. 29 obtained by Narendra Narayan Choudhary (defendant No. 12 in the suit) Ext. 29(b) obtained by the Darbhanga Raj on September 19, 1934 and May 24, l940 respectively were produced, and they did not contain the recital. It is true that there are certain omissions in the certified copy Ext. 29(b) obtained by the Darbhanga Raj. That may be an infirmity in that certified copy, but Ext. 29 (at least in the parts which are material on the point under consideration) appears to be a complete copy. No explanation was sought to be given before the Trial Court and the High Court as to why the portion relied upon was not found in Ext. 29. It is admitted that the recital relied upon is in the handwriting of Mode Narain, and Mode Narain has not chosen to enter the witness box and to explain the circumstances in which that writing was made. It was urged by counsel for the appellants that the plaintiff should have pleaded in the plaint that the certified copy of the decree which incorporated the recital relied upon by the appellants was a fabrication, and since no such plea was raised, the appellants were prejudiced by trial of that question. It was the case of Bijendra Narain, the plaintiff, that he came to know after the plaint was filed that there had been interpolations in the original decree. This he claimed to have learnt when he obtained a certified copy on October 5, 1942, after the suit was filed.In any event, we are unable to agree with counsel for the appellants that where the plaintiff sets up a case that a document relied upon by the defendants in support of their case is a fabrication, it is necessary for him either by his original plaint or by amendment therein to formally plead that the document is a fabrication and that unless he does so he is not entitled to ask the Court to try that plea. The Trial Court had to try the issue of severance of the joint family status by the decree in suit No. 27 of 1923. Whether partition had taken place had to be determined on evidence produced at the trial. Whether evidence in support of a partys case is reliable may be raised by the other party without incorporating the contention relating thereto in his pleading. If the rule suggested by counse1 for the appellants were to be followed, trial of suits would be highly inconvenient, if not impossible, because at every stage where a party contends that the evidence relied upon by the other side is unreliable he would in the first instance be required to amend his pleading and to set up that case. The Code of Civil Procedure does not contemplate any such procedure and in practice it would, if insisted upon be extremely cumbersome and would lead to great delay and in some cases to serious injustice.12. The Trial Court, as we have already observed, on a consideration of the entire evidence and the subsequent conduct of the parties came to the conclusion that there was no severance of Bijendra Narain from his uncle Bidya Narain and with that view the High Court agreed. It is true that the High Court did not enter upon a reappraisal of the evidence, but it generally approved of the reasons adduced by the Trial Court in support of its conclusion. We are unable to hold that the learned Judges of the High Court did not, as is contended before us, consider the evidence. It is not the duty of the appellant Court when it agrees with the view of the Trial Court on the evidence either to restate the effect of the evidence or to reiterate the reasons given by the Trial Court. Expression of general agreement with reasons given by the Court decision of which is under appeal would ordinarilywho was defendant No. 6 died during the pendency of the suit in the Trial Court and Mode Narain who was defendant No. 1 in the suit died during the pendency of the appeal in the High Court. But a claim for rendition of account is not a personal claim. It is not extinguished because the party who claims an account, the party who is called upon to account dies. The maxim actio personalis moritur cum persona" a personal action dies with the person, has a limited application. It operates in a limited class of actions ex delicto such as actions for damages for defamation, assault or other personal injuries not causing the death of the party, and in other actions where after the death of the party the relief granted could not be enjoyed or granting it would be nugatory. An action for account is not an action for damages ex delicto, and does not fall within the enumerated classes. Nor is it such that the relief claimed being personal could not be enjoyed after death, or granting it would be nugatory. Death of the person liable to render an account for property received by him does not therefore affect the liability of his estate. It may be noticed that this question was not raised in the Trial Court and in the High Court. It was merely contended that because the plaintiff Bijendra Narain was receiving income of the lands of his share no decree for accounts could be made. The High Court rejected the contention that no account would be directed in favour of the plaintiff on that account. They pointed out that the mere fact that the plaintiff was in possession of some portion of properties of the joint family since 1941 cannot possibly absolve the defendants, who were in charge of their dealings with the management of the properties, from rendering accounts of the joint family estate. The plaintiff was since September 1941 severed from the joint family in estate and also in mess and residence, and he was entitled to claim an account from the defendants from September 1941, but not for past dealings. The fact that the plaintiff is in possession of some of the properties will, of course, have to be taken into account in finally adjusting the account. | 0 | 5,287 | 3,061 | ### Instruction:
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before the panchas that all the properties held by the parties (the group of the plaintiff and the defendants 1st party) including those acquired in the names of the defendants 1, 3, 6 and Bidya Narain Choudhary as also those acquired in the name of the defendant 24, who is the son of the sister of the defendants 1, 2 and 6 were the joint properties of the plaintiff and themselves, and they also admitted that the plaintiffs share in all the properties was half and it was suggested that a list of all the joint properties should be drawn up for the purpose of partition and accounts and it should be looked", and by paragraph 19 the plaintiff Bijendra Narain claimed a share in the properties including the properties standing in the name of the 24th defendant. It was not alleged by Bijendra Narain that any property was purchased by the 24th defendant on his behalf or on behalf of another person through whom he, Bijendra Narain claimed. Bijendra Narain claimed that all properties standing in the name of Bidya Narain and his sons and also of Bashistha Narain (defendant No. 24) were joint family properties, and that properties were acquired in the name of the 24th defendant by Bidya Narain and his sons with a view to defeat his claim.He did not set up the case that the 24th defendant acquired the properties for him, nor did he plead that the properties were acquired for some person through whom he was claiming. His claim was that the properties belonged to the joint family, because they were purchased by Bidya Narain and his sons with the aid of joint family funds in the name of the 24th defendant. Such a claim does not fall within the terms of S. 66 (1).The judgment of this court A. Ventatasubbaiah v. Chilakamarthi Kotaiah, C. A. No. 120 of 1964, D/- 12-8-1965 (SC) does not assist the case of the appellants. The decision of the case turned on the true interpretation of S. 66(2). It was found in A. Venkatasubbaiahs case, C. A. No. 120 of 1964, D/- 12-8-1965 (SC) by the Trial Court and by a single Judge of the High Court of Madras that the property in dispute was purchased at a court auction by the defendant as agent for the plaintiff and with the funds belonging to the plaintiff, but it was purchased in the defendants name without the consent of the plaintiff who was the real purchaser. The case fell squarely within the terms of sub-section (2) of S. 66. A Full Bench of the High Court of Madras on a reference made in an appeal under the Letters Patent held that such a suit was not maintainable. This Court pointed out that on the facts proved, there was no doubt that the auction purchaser had acted as agent of the plaintiff and had taken advantage of the fact that the plaintiffs mother placed confidence in him and had entrusted to him management of the plaintiffs estate and the suit could not be dismissed under S. 66(1). for it was expressly covered by the terms of S. 66(2) which provides that nothing in subsection (1) shall bar a suit to obtain a declaration that the name of any purchaser certified as mentioned in cl. (1) was inserted in the certificate fraudulently or without the consent of the real purchaser. The contention raised by the appellants must therefore fail.14. Finally, it was urged that since defendants Mode Narain and Rajballav Narain had died during the pendency of the proceedings, the High Court was incompetent to pass a decree for account against their estates. Rajballav who was defendant No. 6 died during the pendency of the suit in the Trial Court and Mode Narain who was defendant No. 1 in the suit died during the pendency of the appeal in the High Court. But a claim for rendition of account is not a personal claim. It is not extinguished because the party who claims an account, the party who is called upon to account dies. The maxim actio personalis moritur cum persona" a personal action dies with the person, has a limited application. It operates in a limited class of actions ex delicto such as actions for damages for defamation, assault or other personal injuries not causing the death of the party, and in other actions where after the death of the party the relief granted could not be enjoyed or granting it would be nugatory. An action for account is not an action for damages ex delicto, and does not fall within the enumerated classes. Nor is it such that the relief claimed being personal could not be enjoyed after death, or granting it would be nugatory. Death of the person liable to render an account for property received by him does not therefore affect the liability of his estate. It may be noticed that this question was not raised in the Trial Court and in the High Court. It was merely contended that because the plaintiff Bijendra Narain was receiving income of the lands of his share no decree for accounts could be made. The High Court rejected the contention that no account would be directed in favour of the plaintiff on that account. They pointed out that the mere fact that the plaintiff was in possession of some portion of properties of the joint family since 1941 cannot possibly absolve the defendants, who were in charge of their dealings with the management of the properties, from rendering accounts of the joint family estate. The plaintiff was since September 1941 severed from the joint family in estate and also in mess and residence, and he was entitled to claim an account from the defendants from September 1941, but not for past dealings. The fact that the plaintiff is in possession of some of the properties will, of course, have to be taken into account in finally adjusting the account.15
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recital. It is true that there are certain omissions in the certified copy Ext. 29(b) obtained by the Darbhanga Raj. That may be an infirmity in that certified copy, but Ext. 29 (at least in the parts which are material on the point under consideration) appears to be a complete copy. No explanation was sought to be given before the Trial Court and the High Court as to why the portion relied upon was not found in Ext. 29. It is admitted that the recital relied upon is in the handwriting of Mode Narain, and Mode Narain has not chosen to enter the witness box and to explain the circumstances in which that writing was made. It was urged by counsel for the appellants that the plaintiff should have pleaded in the plaint that the certified copy of the decree which incorporated the recital relied upon by the appellants was a fabrication, and since no such plea was raised, the appellants were prejudiced by trial of that question. It was the case of Bijendra Narain, the plaintiff, that he came to know after the plaint was filed that there had been interpolations in the original decree. This he claimed to have learnt when he obtained a certified copy on October 5, 1942, after the suit was filed.In any event, we are unable to agree with counsel for the appellants that where the plaintiff sets up a case that a document relied upon by the defendants in support of their case is a fabrication, it is necessary for him either by his original plaint or by amendment therein to formally plead that the document is a fabrication and that unless he does so he is not entitled to ask the Court to try that plea. The Trial Court had to try the issue of severance of the joint family status by the decree in suit No. 27 of 1923. Whether partition had taken place had to be determined on evidence produced at the trial. Whether evidence in support of a partys case is reliable may be raised by the other party without incorporating the contention relating thereto in his pleading. If the rule suggested by counse1 for the appellants were to be followed, trial of suits would be highly inconvenient, if not impossible, because at every stage where a party contends that the evidence relied upon by the other side is unreliable he would in the first instance be required to amend his pleading and to set up that case. The Code of Civil Procedure does not contemplate any such procedure and in practice it would, if insisted upon be extremely cumbersome and would lead to great delay and in some cases to serious injustice.12. The Trial Court, as we have already observed, on a consideration of the entire evidence and the subsequent conduct of the parties came to the conclusion that there was no severance of Bijendra Narain from his uncle Bidya Narain and with that view the High Court agreed. It is true that the High Court did not enter upon a reappraisal of the evidence, but it generally approved of the reasons adduced by the Trial Court in support of its conclusion. We are unable to hold that the learned Judges of the High Court did not, as is contended before us, consider the evidence. It is not the duty of the appellant Court when it agrees with the view of the Trial Court on the evidence either to restate the effect of the evidence or to reiterate the reasons given by the Trial Court. Expression of general agreement with reasons given by the Court decision of which is under appeal would ordinarilywho was defendant No. 6 died during the pendency of the suit in the Trial Court and Mode Narain who was defendant No. 1 in the suit died during the pendency of the appeal in the High Court. But a claim for rendition of account is not a personal claim. It is not extinguished because the party who claims an account, the party who is called upon to account dies. The maxim actio personalis moritur cum persona" a personal action dies with the person, has a limited application. It operates in a limited class of actions ex delicto such as actions for damages for defamation, assault or other personal injuries not causing the death of the party, and in other actions where after the death of the party the relief granted could not be enjoyed or granting it would be nugatory. An action for account is not an action for damages ex delicto, and does not fall within the enumerated classes. Nor is it such that the relief claimed being personal could not be enjoyed after death, or granting it would be nugatory. Death of the person liable to render an account for property received by him does not therefore affect the liability of his estate. It may be noticed that this question was not raised in the Trial Court and in the High Court. It was merely contended that because the plaintiff Bijendra Narain was receiving income of the lands of his share no decree for accounts could be made. The High Court rejected the contention that no account would be directed in favour of the plaintiff on that account. They pointed out that the mere fact that the plaintiff was in possession of some portion of properties of the joint family since 1941 cannot possibly absolve the defendants, who were in charge of their dealings with the management of the properties, from rendering accounts of the joint family estate. The plaintiff was since September 1941 severed from the joint family in estate and also in mess and residence, and he was entitled to claim an account from the defendants from September 1941, but not for past dealings. The fact that the plaintiff is in possession of some of the properties will, of course, have to be taken into account in finally adjusting the account.
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State of Vindhya Pradesh (Now Madhya Pradesh) Vs. Moradhwaj Singh & Others | out the intention of the legislature expressed in S. 7 (a) of the Act and are in our opinion perfectly constitutional.7. We now turn to S. 37 of the Act. That section appears in the procedural part of the Act and is as follows :"(1) No civil court shall have jurisdiction to settle, decide or deal with any question which is, by or under this Act, required to be settled, decided or dealt with by the Tahsildar, the Deputy Commissioner, the Land Reform Commissioner, or the Board of Revenue.(2) Except as otherwise provided in this Act no order of a Tahsildar, a Deputy Commissioner, the Land Reform Commissioner. or the Board of Revenue under this Act shall be called in question in any court."Sub-section (1) thus takes away the jurisdiction of the civil court to decide any matter which under the Act is to be decided by the Tahsildar, the Deputy Commissioner, the Land Reform Commissioner or the Board of Revenue. Sub-section (2) provides that no order passed by any of these authorities shall be called in question in any court. The learned Judicial Commissioner has held this section invalid on the ground that it is repugnant to S. 9 of the Code of Civil Procedure, inasmuch as it takes away the jurisdiction of the civil court which it has under that section. Section 9 lays down that the civil courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Section 9 therefore gives jurisdiction t civil courts to try all suits of a civil nature excepting those which are expressly or impliedly barred by any other law. The provision of S. 37 is an express bar to the matter dealt with in the Act being agitated in civil courts. The learned Judicial Commissioner seems to think that S. 9 takes away the power of the legislature of a Part C State like Vindhya Pradesh to legislate with respect to the jurisdiction of courts. The power to the legislature is given by Entry 3, List II and cannot be affected by S. 9 of the Code of Civil Procedure. As a matter of fact S. 9 recognises that if a competent legislature passes a law baring the jurisdiction of a civil court, the jurisdiction of the civil court to take cognizance of such suit, even though of a civil nature, is ousted. It was in our opinion unnecessary to go into S. 22 of the Government of Part C States Act, No. XLIX of 1951 and compare it with Art. 254 of the Constitution in this connection. Section 37 does not in any way affect S. 9. All that it provides is that civil courts shall have no jurisdiction to hear certain matters of a civil nature; and S. 9 expressly recognizes that if such a provision is made by any law, the jurisdiction of the civil courts will disappear.There is thus no question of any repugnancy between S. 9 of the Code of Civil Procedure and S. 37 of the Act. The legislature in this case had power to make a provision like S. 37 and once it did so, the last part of S.9 will apply and the jurisdiction of the civil courts will become barred by virtue of S. 9 read with S. 37 of the Act. The decision of the Judicial Commissioner therefore that S. 37 is ultra vires the powers of the Vindhya Pradesh legislature is not correct.8. Lastly we come to cl. (4) (e) of the Schedule. The Schedule provides for the method of computing compensation. Cl. (3) lays down the manner in which the gross income of a jagirdar shall be arrived at. Cl. (4) lays down how net income will be arrived at after making certain deductions. One of these deductions is in sub- cl. (e) of this Clause, which is as follows:-"Where the jagirdar is allotted any sir or khudkasht or other land or any grove under this Act an amount equal to the valuation of rent for such land or grove for the basic year at the current settlement rates (less the land revenue paid by him in respect of such land and grove in the basic year to be ascertained in such manner as may be prescribed)."This sub- clause is in fact a contra entry to sub- cl. (b) (i) of cl. (3). The method of calculation provided by these two clauses is that the gross income is first arrived at without taking into account the land which remains with the jagirdar under S. 7 (a). Thereafter in order to arrive at the net income for the purpose of compensation the rent for sir and khudkasht land which remains with the jagirdar is taken into account and its value determined under cl. (3) (b) (i) minus the revenue payable in respect thereof. This is then deducted from the gross income, for. The reason that this land remains with the jagirdar. The learned Judicial Commissioner think that the arithmetical result of this provision is that so far as these lands are concerned the landlord has lost his proprietary interest and has to pay rent to the government, but at the same time gets no compensation.It should however be noted that thought the landlord may have to pay rent in future for the land remaining with him, he does not pay any revenue which was payable by him so far with respect to such land. In the circumstances, it cannot be said that he has been deprived of the proprietary interest without any compensation, for he is relieved of the charge of paying land revenue which has also been taken into account in arriving at the net assets for that purpose, and that is all that he can expect considering that the land remains in his possession for all other purposes.We are therefore of opinion that there is nothing unconstitutional in cl. (4) (e) of the Schedule. | 0[ds]The scheme of S. 22 is to give effect to S. 7(a) by which certain lands were allowed to remain in the possession of the jagirdar. Section 22(1) lays down that all sir and khudkasht lands which a jagirdar was cultivating personally for a continuous period of three years immediately preceding the date of resumption shall be allotted to him by the Tahsildar. Sub-section (2) provides for those cases where there is no land which can be allotted to a jagirdar under sub-s. (1) or where the land, which can be allotted to him under sub-sec. (1) is less than the minimum area as defined in the section. In such a case the jagirdar can be allotted any other sir or khudkasht land in his personal cultivation at the date of resumption upto the minimum area. Where, however, the minimum is not reached even after such allotment, the jagirdar can be allotted under sub-sec. (2) any unoccupied cultivable waste land in the jagir subject to availability of such land upto that area. The minimum area means ten per cent. of the total cultivated area in the jagir at the date of resumption or 30 acres whichever is greater subject to the proviso that in no case the minimum area shall exceed 250 acres. In other words, S .22(1) provides that in the first instance the jagirdar will get all his sir and khudkasht land which he had been cultivating for three yeas continuously before the date of resumption. If, however, there is no such land or if the land of this kind allotted to a jagirdar is less than the minimum area he will be entitled to further allotment out of the sir or khudjasht land in his possession for less than three years to make up the minimum area. Lastly if the minimum area is not made up even by allotment of such land which has been in the jagirdars possession for less than three years he will be entitled to allotment of unoccupied cultivable waste land subject to availability of such land to make up the minimum area ; but the provisions of sub-s. (2) are subject to a minimum of 250 acres. We have not been able to understand how these provisions can be called a piece of colourablelearned Judicial Commissioner seems to be of the view that as a period of three years continuous cultivation is made a condition of allotment under S. 22(1), there is discrimination between jagirdars and other occupants of land in whose case S. 28(1) provides that every person who is entered in the revenue records as an occupant of any jagir-land at the date of resumption, shall be deemed to be pattedar tenant in respect of such land which shall be assessed at the village rate. The learned Judicial Commissioner was not unconscious of the provisions of Art. 31-A which lays down that no such legislation would be struck down on the ground of discrimination under Art. 14. He however thought that this was an extra condition which had been imposed so that the jagirdar might be deprived of as much sir and khudkasht land as possible subject to the minimum and that this was done to create inconvenience to the jagirdars whom the legislature did not like. He therefore thought that such legislation was altogether outside the power of the legislature and was invalid as a colourable piece of legislation.6. In the first place we cannot see how any discrimination can arise in circumstances like this, for the jagirdars are obviously one class while the occupants of lands other than jagirdars belong to another class. Secondly, even if it could be held that jagirdars and other occupants of land stood in the same class and there was discrimination under S. 22(1) as compared to S. 28(1), such discrimination could not be a ground for striking down. S. 22(1) in view of the specific constitutional provision in Art. 31-A. It was because of this difficulty that the learned Judicial Commissioner did not strike down S. 22(1) on the ground of discrimination but held that it was a colourable piece of(1) thus takes away the jurisdiction of the civil court to decide any matter which under the Act is to be decided by the Tahsildar, the Deputy Commissioner, the Land Reform Commissioner or the Board of Revenue. Sub-section (2) provides that no order passed by any of these authorities shall be called in question in any court. The learned Judicial Commissioner has held this section invalid on the ground that it is repugnant to S. 9 of theCode of Civil Procedure, inasmuch as it takes away the jurisdiction of the civil court which it has under that section. Section 9 lays down that the civil courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Section 9 therefore gives jurisdiction t civil courts to try all suits of a civil nature excepting those which are expressly or impliedly barred by any other law. The provision of S. 37 is an express bar to the matter dealt with in the Act being agitated in civil courts. The learned Judicial Commissioner seems to think that S. 9 takes away the power of the legislature of a Part C State like Vindhya Pradesh to legislate with respect to the jurisdiction of courts. The power to the legislature is given by Entry 3, List II and cannot be affected by S. 9 of theCode of Civil Procedure. As a matter of fact S. 9 recognises that if a competent legislature passes a law baring the jurisdiction of a civil court, the jurisdiction of the civil court to take cognizance of such suit, even though of a civil nature, is ousted. It was in our opinion unnecessary to go into S. 22 of the Government of Part C States Act, No. XLIX of 1951 and compare it with Art. 254 of the Constitution in this connection. Section 37 does not in any way affect S.All that it provides is that civil courts shall have no jurisdiction to hear certain matters of a civil nature; and S. 9 expressly recognizes that if such a provision is made by any law, the jurisdiction of the civil courts will disappear.There is thus no question of any repugnancy between S. 9 of theCode of Civil Procedure and S. 37 of the Act. The legislature in this case had power to make a provision like S. 37 and once it did so, the last part of S.9 will apply and the jurisdiction of the civil courts will become barred by virtue of S. 9 read with S. 37 of the Act. The decision of the Judicial Commissioner therefore that S. 37 is ultra vires the powers of the Vindhya Pradesh legislature is notsub- clause is in fact a contra entry to sub- cl. (b) (i) of cl. (3). The method of calculation provided by these two clauses is that the gross income is first arrived at without taking into account the land which remains with the jagirdar under S. 7 (a). Thereafter in order to arrive at the net income for the purpose of compensation the rent for sir and khudkasht land which remains with the jagirdar is taken into account and its value determined under cl. (3) (b) (i) minus the revenue payable in respect thereof. This is then deducted from the gross income, for. The reason that this land remains with the jagirdar. The learned Judicial Commissioner think that the arithmetical result of this provision is that so far as these lands are concerned the landlord has lost his proprietary interest and has to pay rent to the government, but at the same time gets no compensation.It should however be noted that thought the landlord may have to pay rent in future for the land remaining with him, he does not pay any revenue which was payable by him so far with respect to such land. In the circumstances, it cannot be said that he has been deprived of the proprietary interest without any compensation, for he is relieved of the charge of paying land revenue which has also been taken into account in arriving at the net assets for that purpose, and that is all that he can expect considering that the land remains in his possession for all other purposes.We are therefore of opinion that there is nothing unconstitutional in cl. (4) (e) of the Schedule. | 0 | 3,377 | 1,565 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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out the intention of the legislature expressed in S. 7 (a) of the Act and are in our opinion perfectly constitutional.7. We now turn to S. 37 of the Act. That section appears in the procedural part of the Act and is as follows :"(1) No civil court shall have jurisdiction to settle, decide or deal with any question which is, by or under this Act, required to be settled, decided or dealt with by the Tahsildar, the Deputy Commissioner, the Land Reform Commissioner, or the Board of Revenue.(2) Except as otherwise provided in this Act no order of a Tahsildar, a Deputy Commissioner, the Land Reform Commissioner. or the Board of Revenue under this Act shall be called in question in any court."Sub-section (1) thus takes away the jurisdiction of the civil court to decide any matter which under the Act is to be decided by the Tahsildar, the Deputy Commissioner, the Land Reform Commissioner or the Board of Revenue. Sub-section (2) provides that no order passed by any of these authorities shall be called in question in any court. The learned Judicial Commissioner has held this section invalid on the ground that it is repugnant to S. 9 of the Code of Civil Procedure, inasmuch as it takes away the jurisdiction of the civil court which it has under that section. Section 9 lays down that the civil courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Section 9 therefore gives jurisdiction t civil courts to try all suits of a civil nature excepting those which are expressly or impliedly barred by any other law. The provision of S. 37 is an express bar to the matter dealt with in the Act being agitated in civil courts. The learned Judicial Commissioner seems to think that S. 9 takes away the power of the legislature of a Part C State like Vindhya Pradesh to legislate with respect to the jurisdiction of courts. The power to the legislature is given by Entry 3, List II and cannot be affected by S. 9 of the Code of Civil Procedure. As a matter of fact S. 9 recognises that if a competent legislature passes a law baring the jurisdiction of a civil court, the jurisdiction of the civil court to take cognizance of such suit, even though of a civil nature, is ousted. It was in our opinion unnecessary to go into S. 22 of the Government of Part C States Act, No. XLIX of 1951 and compare it with Art. 254 of the Constitution in this connection. Section 37 does not in any way affect S. 9. All that it provides is that civil courts shall have no jurisdiction to hear certain matters of a civil nature; and S. 9 expressly recognizes that if such a provision is made by any law, the jurisdiction of the civil courts will disappear.There is thus no question of any repugnancy between S. 9 of the Code of Civil Procedure and S. 37 of the Act. The legislature in this case had power to make a provision like S. 37 and once it did so, the last part of S.9 will apply and the jurisdiction of the civil courts will become barred by virtue of S. 9 read with S. 37 of the Act. The decision of the Judicial Commissioner therefore that S. 37 is ultra vires the powers of the Vindhya Pradesh legislature is not correct.8. Lastly we come to cl. (4) (e) of the Schedule. The Schedule provides for the method of computing compensation. Cl. (3) lays down the manner in which the gross income of a jagirdar shall be arrived at. Cl. (4) lays down how net income will be arrived at after making certain deductions. One of these deductions is in sub- cl. (e) of this Clause, which is as follows:-"Where the jagirdar is allotted any sir or khudkasht or other land or any grove under this Act an amount equal to the valuation of rent for such land or grove for the basic year at the current settlement rates (less the land revenue paid by him in respect of such land and grove in the basic year to be ascertained in such manner as may be prescribed)."This sub- clause is in fact a contra entry to sub- cl. (b) (i) of cl. (3). The method of calculation provided by these two clauses is that the gross income is first arrived at without taking into account the land which remains with the jagirdar under S. 7 (a). Thereafter in order to arrive at the net income for the purpose of compensation the rent for sir and khudkasht land which remains with the jagirdar is taken into account and its value determined under cl. (3) (b) (i) minus the revenue payable in respect thereof. This is then deducted from the gross income, for. The reason that this land remains with the jagirdar. The learned Judicial Commissioner think that the arithmetical result of this provision is that so far as these lands are concerned the landlord has lost his proprietary interest and has to pay rent to the government, but at the same time gets no compensation.It should however be noted that thought the landlord may have to pay rent in future for the land remaining with him, he does not pay any revenue which was payable by him so far with respect to such land. In the circumstances, it cannot be said that he has been deprived of the proprietary interest without any compensation, for he is relieved of the charge of paying land revenue which has also been taken into account in arriving at the net assets for that purpose, and that is all that he can expect considering that the land remains in his possession for all other purposes.We are therefore of opinion that there is nothing unconstitutional in cl. (4) (e) of the Schedule.
### Response:
0
### Explanation:
28(1) provides that every person who is entered in the revenue records as an occupant of any jagir-land at the date of resumption, shall be deemed to be pattedar tenant in respect of such land which shall be assessed at the village rate. The learned Judicial Commissioner was not unconscious of the provisions of Art. 31-A which lays down that no such legislation would be struck down on the ground of discrimination under Art. 14. He however thought that this was an extra condition which had been imposed so that the jagirdar might be deprived of as much sir and khudkasht land as possible subject to the minimum and that this was done to create inconvenience to the jagirdars whom the legislature did not like. He therefore thought that such legislation was altogether outside the power of the legislature and was invalid as a colourable piece of legislation.6. In the first place we cannot see how any discrimination can arise in circumstances like this, for the jagirdars are obviously one class while the occupants of lands other than jagirdars belong to another class. Secondly, even if it could be held that jagirdars and other occupants of land stood in the same class and there was discrimination under S. 22(1) as compared to S. 28(1), such discrimination could not be a ground for striking down. S. 22(1) in view of the specific constitutional provision in Art. 31-A. It was because of this difficulty that the learned Judicial Commissioner did not strike down S. 22(1) on the ground of discrimination but held that it was a colourable piece of(1) thus takes away the jurisdiction of the civil court to decide any matter which under the Act is to be decided by the Tahsildar, the Deputy Commissioner, the Land Reform Commissioner or the Board of Revenue. Sub-section (2) provides that no order passed by any of these authorities shall be called in question in any court. The learned Judicial Commissioner has held this section invalid on the ground that it is repugnant to S. 9 of theCode of Civil Procedure, inasmuch as it takes away the jurisdiction of the civil court which it has under that section. Section 9 lays down that the civil courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Section 9 therefore gives jurisdiction t civil courts to try all suits of a civil nature excepting those which are expressly or impliedly barred by any other law. The provision of S. 37 is an express bar to the matter dealt with in the Act being agitated in civil courts. The learned Judicial Commissioner seems to think that S. 9 takes away the power of the legislature of a Part C State like Vindhya Pradesh to legislate with respect to the jurisdiction of courts. The power to the legislature is given by Entry 3, List II and cannot be affected by S. 9 of theCode of Civil Procedure. As a matter of fact S. 9 recognises that if a competent legislature passes a law baring the jurisdiction of a civil court, the jurisdiction of the civil court to take cognizance of such suit, even though of a civil nature, is ousted. It was in our opinion unnecessary to go into S. 22 of the Government of Part C States Act, No. XLIX of 1951 and compare it with Art. 254 of the Constitution in this connection. Section 37 does not in any way affect S.All that it provides is that civil courts shall have no jurisdiction to hear certain matters of a civil nature; and S. 9 expressly recognizes that if such a provision is made by any law, the jurisdiction of the civil courts will disappear.There is thus no question of any repugnancy between S. 9 of theCode of Civil Procedure and S. 37 of the Act. The legislature in this case had power to make a provision like S. 37 and once it did so, the last part of S.9 will apply and the jurisdiction of the civil courts will become barred by virtue of S. 9 read with S. 37 of the Act. The decision of the Judicial Commissioner therefore that S. 37 is ultra vires the powers of the Vindhya Pradesh legislature is notsub- clause is in fact a contra entry to sub- cl. (b) (i) of cl. (3). The method of calculation provided by these two clauses is that the gross income is first arrived at without taking into account the land which remains with the jagirdar under S. 7 (a). Thereafter in order to arrive at the net income for the purpose of compensation the rent for sir and khudkasht land which remains with the jagirdar is taken into account and its value determined under cl. (3) (b) (i) minus the revenue payable in respect thereof. This is then deducted from the gross income, for. The reason that this land remains with the jagirdar. The learned Judicial Commissioner think that the arithmetical result of this provision is that so far as these lands are concerned the landlord has lost his proprietary interest and has to pay rent to the government, but at the same time gets no compensation.It should however be noted that thought the landlord may have to pay rent in future for the land remaining with him, he does not pay any revenue which was payable by him so far with respect to such land. In the circumstances, it cannot be said that he has been deprived of the proprietary interest without any compensation, for he is relieved of the charge of paying land revenue which has also been taken into account in arriving at the net assets for that purpose, and that is all that he can expect considering that the land remains in his possession for all other purposes.We are therefore of opinion that there is nothing unconstitutional in cl. (4) (e) of the Schedule.
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Om Prakash Sud Etc. Etc Vs. State Of J & K & Ors. Etc. Etc | it insured for a sum of Rs. 6.80 lakhs. He obtained raw-material from the open market and was running his industry. Petitioner, Ravindra Dutt of M/s. Dinesh Resin and Turpentines in W.P. No. 3465 of 1980 alleges that his industry was provisionally registered on 25-10-1975 which was extended upto April, 1979. Letter of 31st May, 1979 shows that his industry was later on formally registered as a small unit. This factory was producing resin and turpentine out of the resin which he purchased from open auction He was approaching the Government from time to time to get requisite quantity of raw-materials but failed to get it.Petitioner, Shamlal Kapoor, Director of Jammu Resin Enterprises Private Limited, alleges that his industry was formally registered with the Government of J &K. He alleges that his industry was functioning for a long time and trying to get necessary quota of raw-materials from respondent No. 1. He was approaching the Government to get requisite quota. Sud Pine Industries, was provisionally registered on 10-3- 1978 and formally registered on 10-10-1978. It appears from Annexure N, in respect of respondent M/s Kashmir R &T Works (respondent No. 17), Annexure O in respect of M/s. Sun Shine R &T Industries (respondent No. 18), Annexure P in respect of M/s. Woolan Paints and Chemicals Scopore (respondent No. 19) Annexure Q in respect of M/s. Pine Wood Products Company (respondent No. 20), Annexure R in respect o f M/s. Haji Mast Ali Slaria (respondent No. 21), Annexure S in respect of M/s. Phyto Chemicals (respondent No. n 22), Annexure T in respect of M/s. New Himalayan Paints and Chemicals (respondent No. 23), Annexure U in respect of M/s. S . K. Chemical (respondent No. 24), Annexure V in respect of M/s. Rajindra R &T (respondent No. 25) and Annexure W in respect of M/s. Bharat Paints and Chemicals (respondent No. 26) that the allotments were made in their favour "from the date the unit is formally registered" which shows that industries were not even registered at the time of the impugned orders of this allotment. Respondent M/s. Rajindra R &T Industries, Udhampur, appears to stand on a different footing. He appear s to have fulfilled all the conditions required for allocation of resin in accordance with the policy of the State of J &K. The industry is an experienced one and the factory started production of resin and turpentine at Hoshiarpur since 1948. It is a firm registered under the Indian Partnership Act and has long experience in the business including resin and turpentine since 1948. The industry set up a factory in 1970 in the rural industrial estate near Udhampur which is a backward area. The industry was provisionally registered in 1970 and formal registration was granted on 29-2-1974. It applied for adequate quantities of raw-materials and was allotted only 200 tons although it had been sanctioned 1500 per ton per annum since 1975. Respondent M/s. Sud Pine Industries, M/s. Kashmir R &T Works, Bakshi Resin &Turpentine and M/s. K. C. Soni Bakshi also appear to be on different footings. It appears from Annexures X and Y that the first two industries have already been formally registered. They are existing units having already started production. So far as respondent M/s Bakshi Resin and Turpentine is concerned, it had already set up factory and started production. It was provisionally registered as early as 1976 and the unit is located in a backward area. So far as respondent K. C. Soni Resin &Turpentine is concerned, it was formally registered on 19-4-79. This unit is located in a remote backward area of the State. 8. "Equality before the Law" or "equal protection of the laws" within the meaning of Article 14 of the Constitution of India means absence of any arbitrary discrimination by the law or in their administration. No undue favour to one or hostile discrimination to another should be shown. A classification is reasonable when it is not an arbitrary selection but rests on differences pertinent to the subject in respect of which the classification is made. The classification permissible must be based on some real and substantial distinction, a just and reasonable relation to the objects sought to be attained and cannot be made arbitrarily and without any substantial basis.. ........ (See State of West Bengal v. Anwar Ali. The classification must not be arbitrary but be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out. Those qualities or characteristics must have a reasonable relation to the object of the law. In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others, and (2) that differentia must have a rational relation to the object sought to be achieved by the Act. The differentia which is the basis of the classification and the object of the Act are distinct things and what is necessary is that there must be a nexus between them. We are not unaware that the rule of equality does not mean mathematical equality and that it permits of practical inequalities. But what is needed is that the selection of quota seekers as in the case in hand should have a rational relation to the object sought to be achieved in the industrial policy decision of the State. If the selection or differentiation is arbitrary and lacks a rational basis it offends Article 14. 9. In the instant case, although the State Government has taken reliance on the State Industrial Policy decision referred to above, they do not appear to have followed it in practice, except in the cases of the five respondents referred to above. In fact no reasonable basis has been adopted in making the allotments in favour of the new allottees and denying allotments to the petitioners. | 1[ds]They have stated, and their statement is corroborated by the documents, that there is preponderance of industries in the Jammu region and industries of the petitioners as well as respondents No. 4 to 16 were also functioning in the same region. Respondent No. 1 has not explained as to how and on what basis, if any, the allotments were made by the impugned orders in favour of the new allottees whose industries were located in the Jammu region"Equality before the Law" or "equal protection of the laws" within the meaning of Article 14 of the Constitution of India means absence of any arbitrary discrimination by the law or in their administration. No undue favour to one or hostile discrimination to another should be shown. A classification is reasonable when it is not an arbitrary selection but rests on differences pertinent to the subject in respect of which the classification is made. The classification permissible must be based on some real and substantial distinction, a just and reasonable relation to the objects sought to be attained and cannot be made arbitrarily and without any substantial basis.. ........ (See State of West Bengal v. Anwar Ali. The classification must not be arbitrary but be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out. Those qualities or characteristics must have a reasonable relation to the object of the law. In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others, and (2) that differentia must have a rational relation to the object sought to be achieved by the Act. The differentia which is the basis of the classification and the object of the Act are distinct things and what is necessary is that there must be a nexus betweene are not unaware that the rule of equality does not mean mathematical equality and that it permits of practical inequalities. But what is needed is that the selection of quota seekers as in the case in hand should have a rational relation to the object sought to be achieved in the industrial policy decision of the State. If the selection or differentiation is arbitrary and lacks a rational basis it offends Article 14In the instant case, although the State Government has taken reliance on the State Industrial Policy decision referred to above, they do not appear to have followed it in practice, except in the cases of the five respondents referred to above. In fact no reasonable basis has been adopted in making the allotments in favour of the new allottees and denying allotments to the petitioners. | 1 | 3,126 | 514 | ### 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:
it insured for a sum of Rs. 6.80 lakhs. He obtained raw-material from the open market and was running his industry. Petitioner, Ravindra Dutt of M/s. Dinesh Resin and Turpentines in W.P. No. 3465 of 1980 alleges that his industry was provisionally registered on 25-10-1975 which was extended upto April, 1979. Letter of 31st May, 1979 shows that his industry was later on formally registered as a small unit. This factory was producing resin and turpentine out of the resin which he purchased from open auction He was approaching the Government from time to time to get requisite quantity of raw-materials but failed to get it.Petitioner, Shamlal Kapoor, Director of Jammu Resin Enterprises Private Limited, alleges that his industry was formally registered with the Government of J &K. He alleges that his industry was functioning for a long time and trying to get necessary quota of raw-materials from respondent No. 1. He was approaching the Government to get requisite quota. Sud Pine Industries, was provisionally registered on 10-3- 1978 and formally registered on 10-10-1978. It appears from Annexure N, in respect of respondent M/s Kashmir R &T Works (respondent No. 17), Annexure O in respect of M/s. Sun Shine R &T Industries (respondent No. 18), Annexure P in respect of M/s. Woolan Paints and Chemicals Scopore (respondent No. 19) Annexure Q in respect of M/s. Pine Wood Products Company (respondent No. 20), Annexure R in respect o f M/s. Haji Mast Ali Slaria (respondent No. 21), Annexure S in respect of M/s. Phyto Chemicals (respondent No. n 22), Annexure T in respect of M/s. New Himalayan Paints and Chemicals (respondent No. 23), Annexure U in respect of M/s. S . K. Chemical (respondent No. 24), Annexure V in respect of M/s. Rajindra R &T (respondent No. 25) and Annexure W in respect of M/s. Bharat Paints and Chemicals (respondent No. 26) that the allotments were made in their favour "from the date the unit is formally registered" which shows that industries were not even registered at the time of the impugned orders of this allotment. Respondent M/s. Rajindra R &T Industries, Udhampur, appears to stand on a different footing. He appear s to have fulfilled all the conditions required for allocation of resin in accordance with the policy of the State of J &K. The industry is an experienced one and the factory started production of resin and turpentine at Hoshiarpur since 1948. It is a firm registered under the Indian Partnership Act and has long experience in the business including resin and turpentine since 1948. The industry set up a factory in 1970 in the rural industrial estate near Udhampur which is a backward area. The industry was provisionally registered in 1970 and formal registration was granted on 29-2-1974. It applied for adequate quantities of raw-materials and was allotted only 200 tons although it had been sanctioned 1500 per ton per annum since 1975. Respondent M/s. Sud Pine Industries, M/s. Kashmir R &T Works, Bakshi Resin &Turpentine and M/s. K. C. Soni Bakshi also appear to be on different footings. It appears from Annexures X and Y that the first two industries have already been formally registered. They are existing units having already started production. So far as respondent M/s Bakshi Resin and Turpentine is concerned, it had already set up factory and started production. It was provisionally registered as early as 1976 and the unit is located in a backward area. So far as respondent K. C. Soni Resin &Turpentine is concerned, it was formally registered on 19-4-79. This unit is located in a remote backward area of the State. 8. "Equality before the Law" or "equal protection of the laws" within the meaning of Article 14 of the Constitution of India means absence of any arbitrary discrimination by the law or in their administration. No undue favour to one or hostile discrimination to another should be shown. A classification is reasonable when it is not an arbitrary selection but rests on differences pertinent to the subject in respect of which the classification is made. The classification permissible must be based on some real and substantial distinction, a just and reasonable relation to the objects sought to be attained and cannot be made arbitrarily and without any substantial basis.. ........ (See State of West Bengal v. Anwar Ali. The classification must not be arbitrary but be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out. Those qualities or characteristics must have a reasonable relation to the object of the law. In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others, and (2) that differentia must have a rational relation to the object sought to be achieved by the Act. The differentia which is the basis of the classification and the object of the Act are distinct things and what is necessary is that there must be a nexus between them. We are not unaware that the rule of equality does not mean mathematical equality and that it permits of practical inequalities. But what is needed is that the selection of quota seekers as in the case in hand should have a rational relation to the object sought to be achieved in the industrial policy decision of the State. If the selection or differentiation is arbitrary and lacks a rational basis it offends Article 14. 9. In the instant case, although the State Government has taken reliance on the State Industrial Policy decision referred to above, they do not appear to have followed it in practice, except in the cases of the five respondents referred to above. In fact no reasonable basis has been adopted in making the allotments in favour of the new allottees and denying allotments to the petitioners.
### Response:
1
### Explanation:
They have stated, and their statement is corroborated by the documents, that there is preponderance of industries in the Jammu region and industries of the petitioners as well as respondents No. 4 to 16 were also functioning in the same region. Respondent No. 1 has not explained as to how and on what basis, if any, the allotments were made by the impugned orders in favour of the new allottees whose industries were located in the Jammu region"Equality before the Law" or "equal protection of the laws" within the meaning of Article 14 of the Constitution of India means absence of any arbitrary discrimination by the law or in their administration. No undue favour to one or hostile discrimination to another should be shown. A classification is reasonable when it is not an arbitrary selection but rests on differences pertinent to the subject in respect of which the classification is made. The classification permissible must be based on some real and substantial distinction, a just and reasonable relation to the objects sought to be attained and cannot be made arbitrarily and without any substantial basis.. ........ (See State of West Bengal v. Anwar Ali. The classification must not be arbitrary but be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out. Those qualities or characteristics must have a reasonable relation to the object of the law. In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others, and (2) that differentia must have a rational relation to the object sought to be achieved by the Act. The differentia which is the basis of the classification and the object of the Act are distinct things and what is necessary is that there must be a nexus betweene are not unaware that the rule of equality does not mean mathematical equality and that it permits of practical inequalities. But what is needed is that the selection of quota seekers as in the case in hand should have a rational relation to the object sought to be achieved in the industrial policy decision of the State. If the selection or differentiation is arbitrary and lacks a rational basis it offends Article 14In the instant case, although the State Government has taken reliance on the State Industrial Policy decision referred to above, they do not appear to have followed it in practice, except in the cases of the five respondents referred to above. In fact no reasonable basis has been adopted in making the allotments in favour of the new allottees and denying allotments to the petitioners.
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Ishwardeo Narain Singh Vs. Smt. Kamta Devi & Others | the will in favour of Thakurji was void for uncertainty and relying on a decision in ---Phundan Lal v. Arya Prithi Nidhi Sabha, 33 All 793(A), the learned District Judge held that the will was not expressive of any definite intention and was, therefore not a will as defined in Section 2(h) of the Indian Succession Act. In view of this finding the leaned District Judge rejected the application for probate.3. An appeal was taken to the High Court. The High Court held that the due execution of the will had not been proved. The High Court also held the view that the will was void for uncertainty and on both of these grounds the High Court affirmed the Judgment of the trial Court and dismissed the appeal. The petitioner applied to the High Court for leave to appeal to the Privy Council but such application was dismissed. The Petitioner thereafter applied to the Privy Council and obtained special leave to appeal. The appeal has since then been transferred to this Court and has now come up for hearing.4. The dismissal of the application for probate on the ground that the disposition in favour of Thakurji is void for uncertainty can on no. principle be supported and indeed learned counsel appearing for the respondent had not sought to do so. The Court of Probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of each execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court. It is surprising how this elementary principle of law was overlooked by both the Courts below. However, as learned counsel appearing for the respondents has not sought to support this ground nothing further need be said on that.5. As regards the other grounds, the trial Judge who had the attesting witness before him was satisfied that this evidence could not be brushed aside lightly and could be safely relied on as correct. The High Court, however, took the view that the due execution of the will had not been proved and that the evidence of the only attesting witness Sahdeo Singh could not be accepted in view of the surrounding circumstances. The first circumstance referred to was that the will was an unnatural will. The testator had no. male issue but had only one minor daughter. His wife had predeceased him and he had not married a second wife. By his will he made provision for the marriage of his daughter out of certain specified part of his estate. The rest of his properties he gave to Thakurji. We see nothing unnatural or unofficious about this will.6. The High Court had relied on the fact that the will was not registered or deposited with District Registrar. There is nothing in law which requires the registration of a will and wills are in a majority of cases not registered at all. To draw any inference against the genuineness of the will on the ground of its non-registration appears to us to be wholly unwarranted.7. The next point urged against the genuineness of the will was that the entire property was dedicated in favour of a private charity and the fact that since the execution of the will in 1930 and till his death in 1934 no. attempt has been made by the testator to erect a temple or install a deity. In the first place it is not accurate to say that the entire property was dedicated in favour of charity because provision was made for the marriage of his only daughter. Further, there may conceivably be diverse reasons which prevented the testator from building a temple during his lifetime.8. Finally, the circumstance that Sahdeo Singh is an Advocate and a friend of Ishwardeo Narain Singhs elder brother who is also a lawyer has been referred to as a ground for rejecting his evidence. We are wholly unable to accept this line of reasoning. Sahdeo is a person who pays land revenue of over Rs. 4, 000 per annum. He is a practising Advocate. He acted as Advocate for the testator in one or two appeals. The estate of the testator was a small one, valued at Rs. 3, 000 only. It is impossible to hold that a respectable man of the position of Sahdeo Singh should collude with the stepbrothers of the testator in putting up a forged will in respect of such a small estate.9. Comment has been made that the testator was not on good terms with his father and his stepbrothers. The will itself recites that there was at one time some disagreement between the testator and his father and stepbrothers but after the death of his stepmother the disputes were evidently composed. We have documentary evidence to show that the testator and his father filed a joint written statement in some suit. It is also in evidence that the testator signed an application for execution of a decree obtained by his father acting as the general agent of his father. It is also in evidence that although the testator had separated, he and his father and stepbrothers used to pay land revenue jointly. There is nothing improbable in the family disputes being settled. In these circumstances there is nothing improbable in the testator appointing one of his stepbrothers as the executor of his will. It is in evidence that these stepbrothers have married the minor daughter of the testator in quite a well to do family. Taking all the circumstances into consideration we are clearly of the opinion that the High Court was not justified in taking a different view as to the credibility of the witness Sahdeo Singh who was entirely believed by the District Judge who had seen him in the witness box before him. | 1[ds]8. Finally, the circumstance that Sahdeo Singh is an Advocate and a friend of Ishwardeo Narain Singhs elder brother who is also a lawyer has been referred to as a ground for rejecting his evidence.We are wholly unable to accept this line of reasoning. Sahdeo is a person who pays land revenue of over Rs. 4, 000 per annum. He is a practising Advocate. He acted as Advocate for the testator in one or two appeals. The estate of the testator was a small one, valued at Rs. 3, 000 only. It is impossible to hold that a respectable man of the position of Sahdeo Singh should collude with the stepbrothers of the testator in putting up a forged will in respect of such a small estate.9. Comment has been made that the testator was not on good terms with his father and his stepbrothers. The will itself recites that there was at one time some disagreement between the testator and his father and stepbrothers but after the death of his stepmother the disputes were evidently composed. We have documentary evidence to show that the testator and his father filed a joint written statement in some suit. It is also in evidence that the testator signed an application for execution of a decree obtained by his father acting as the general agent of his father. It is also in evidence that although the testator had separated, he and his father and stepbrothers used to pay land revenue jointly. There is nothing improbable in the family disputes being settled. In these circumstances there is nothing improbable in the testator appointing one of his stepbrothers as the executor of his will. It is in evidence that these stepbrothers have married the minor daughter of the testator in quite a well to do family. Taking all the circumstances into consideration we are clearly of the opinion that the High Court was not justified in taking a different view as to the credibility of the witness Sahdeo Singh who was entirely believed by the District Judge who had seen him in the witness box before him. | 1 | 1,569 | 379 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
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the will in favour of Thakurji was void for uncertainty and relying on a decision in ---Phundan Lal v. Arya Prithi Nidhi Sabha, 33 All 793(A), the learned District Judge held that the will was not expressive of any definite intention and was, therefore not a will as defined in Section 2(h) of the Indian Succession Act. In view of this finding the leaned District Judge rejected the application for probate.3. An appeal was taken to the High Court. The High Court held that the due execution of the will had not been proved. The High Court also held the view that the will was void for uncertainty and on both of these grounds the High Court affirmed the Judgment of the trial Court and dismissed the appeal. The petitioner applied to the High Court for leave to appeal to the Privy Council but such application was dismissed. The Petitioner thereafter applied to the Privy Council and obtained special leave to appeal. The appeal has since then been transferred to this Court and has now come up for hearing.4. The dismissal of the application for probate on the ground that the disposition in favour of Thakurji is void for uncertainty can on no. principle be supported and indeed learned counsel appearing for the respondent had not sought to do so. The Court of Probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of each execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court. It is surprising how this elementary principle of law was overlooked by both the Courts below. However, as learned counsel appearing for the respondents has not sought to support this ground nothing further need be said on that.5. As regards the other grounds, the trial Judge who had the attesting witness before him was satisfied that this evidence could not be brushed aside lightly and could be safely relied on as correct. The High Court, however, took the view that the due execution of the will had not been proved and that the evidence of the only attesting witness Sahdeo Singh could not be accepted in view of the surrounding circumstances. The first circumstance referred to was that the will was an unnatural will. The testator had no. male issue but had only one minor daughter. His wife had predeceased him and he had not married a second wife. By his will he made provision for the marriage of his daughter out of certain specified part of his estate. The rest of his properties he gave to Thakurji. We see nothing unnatural or unofficious about this will.6. The High Court had relied on the fact that the will was not registered or deposited with District Registrar. There is nothing in law which requires the registration of a will and wills are in a majority of cases not registered at all. To draw any inference against the genuineness of the will on the ground of its non-registration appears to us to be wholly unwarranted.7. The next point urged against the genuineness of the will was that the entire property was dedicated in favour of a private charity and the fact that since the execution of the will in 1930 and till his death in 1934 no. attempt has been made by the testator to erect a temple or install a deity. In the first place it is not accurate to say that the entire property was dedicated in favour of charity because provision was made for the marriage of his only daughter. Further, there may conceivably be diverse reasons which prevented the testator from building a temple during his lifetime.8. Finally, the circumstance that Sahdeo Singh is an Advocate and a friend of Ishwardeo Narain Singhs elder brother who is also a lawyer has been referred to as a ground for rejecting his evidence. We are wholly unable to accept this line of reasoning. Sahdeo is a person who pays land revenue of over Rs. 4, 000 per annum. He is a practising Advocate. He acted as Advocate for the testator in one or two appeals. The estate of the testator was a small one, valued at Rs. 3, 000 only. It is impossible to hold that a respectable man of the position of Sahdeo Singh should collude with the stepbrothers of the testator in putting up a forged will in respect of such a small estate.9. Comment has been made that the testator was not on good terms with his father and his stepbrothers. The will itself recites that there was at one time some disagreement between the testator and his father and stepbrothers but after the death of his stepmother the disputes were evidently composed. We have documentary evidence to show that the testator and his father filed a joint written statement in some suit. It is also in evidence that the testator signed an application for execution of a decree obtained by his father acting as the general agent of his father. It is also in evidence that although the testator had separated, he and his father and stepbrothers used to pay land revenue jointly. There is nothing improbable in the family disputes being settled. In these circumstances there is nothing improbable in the testator appointing one of his stepbrothers as the executor of his will. It is in evidence that these stepbrothers have married the minor daughter of the testator in quite a well to do family. Taking all the circumstances into consideration we are clearly of the opinion that the High Court was not justified in taking a different view as to the credibility of the witness Sahdeo Singh who was entirely believed by the District Judge who had seen him in the witness box before him.
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8. Finally, the circumstance that Sahdeo Singh is an Advocate and a friend of Ishwardeo Narain Singhs elder brother who is also a lawyer has been referred to as a ground for rejecting his evidence.We are wholly unable to accept this line of reasoning. Sahdeo is a person who pays land revenue of over Rs. 4, 000 per annum. He is a practising Advocate. He acted as Advocate for the testator in one or two appeals. The estate of the testator was a small one, valued at Rs. 3, 000 only. It is impossible to hold that a respectable man of the position of Sahdeo Singh should collude with the stepbrothers of the testator in putting up a forged will in respect of such a small estate.9. Comment has been made that the testator was not on good terms with his father and his stepbrothers. The will itself recites that there was at one time some disagreement between the testator and his father and stepbrothers but after the death of his stepmother the disputes were evidently composed. We have documentary evidence to show that the testator and his father filed a joint written statement in some suit. It is also in evidence that the testator signed an application for execution of a decree obtained by his father acting as the general agent of his father. It is also in evidence that although the testator had separated, he and his father and stepbrothers used to pay land revenue jointly. There is nothing improbable in the family disputes being settled. In these circumstances there is nothing improbable in the testator appointing one of his stepbrothers as the executor of his will. It is in evidence that these stepbrothers have married the minor daughter of the testator in quite a well to do family. Taking all the circumstances into consideration we are clearly of the opinion that the High Court was not justified in taking a different view as to the credibility of the witness Sahdeo Singh who was entirely believed by the District Judge who had seen him in the witness box before him.
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State Of Mysore And Ors Vs. H. D. Kolkar | 25 of the Act and Rule 17 (2) of the Rules. The material part of Section 25 reads:"25 (1) The State Government or any officer authorised by sub-section (2) in that behalf may suspend, reduce. dismiss or remove an Inspector or any member of the subordinate ranks of the Police Force whom he shall think cruel, perverse, remiss or negligent in the discharge of his duty or unfit for the same, and may fine to an amount not exceeding one months pay, any member of the subordinate ranks of the Police Force, who is guilty of any breach of discipline or misconduct or any act rendering him unfit for the discharge of his duty, which does not require his suspension or dismissal.(2) (a) The Inspector-General, the Commissioner and the Deputy Inspector General shall have authority to punish an Inspector or any member of the subordinate ranks under sub-section (1). A Superintendent shall have the like authority in respect of any Police Officer subordinate to him below the grade of Inspector and may suspend an Inspector who is subordinate to him pending inquiry into a complaint against such Inspector and until an order of the Inspector General or Deputy Inspector-General can be obtained.xx xx xx(c) the exercise of any power conferred by this sub-section shall be subject always to such rules and orders as may be made by the State Government in that behalf.Rule 17 of the Rules reads:"1. The State Government shall alone have the power of revision and revision shall lie only in respect of punishments which are appellate.(2) The State Government, of its own motion or otherwise, may call for the record of any case in which an order has been made by an authority subordinate to it in the exercise of any power conferred on such authority by the Rules and may:(a) confirm, modify, or reverse the order, or(b) direct that further enquiry be held in the case;(c) reduce or enhance the punishment inflicted by the order:(d) make such other order in the case as it may deem fit.Provided that where it is proposed to enhance the punishment inflicted by any such order, the Police Officer concerned shall be given an opportunity of showing cause against the proposed enhancement.7. It is clear from sub-sec. (1) of Section 25 that the State Government or any officer authorised by the State Government under sub-section (2) of that section is competent to impose the punishment of suspension, reduction, dismissal or removal on an Inspector or other member of the subordinate rank of the Police force on the grounds enumerated in that section. Sub-sec. (2) (a) consists of two parts. The first part authorises the Inspector General of Police, the Commissioner, and the Deputy Inspector General of Police to impose punishment which the State government could impose under sub-section (1). The other part of that sub-section says that a Superintendent of Police shall have the like authority in respect of any Police Officer subordinate to him below the grade of Inspector. It was in the exercise of this power that the Superintendent of Police here reduced the respondent to the rank of a Police constable.8. Now the source of the power under which rule 17 was framed, as stated in the preamble to the rules, is sub-sec. (2) (c) of Section 25 of the Act and the question is whether this clause really authorised the Government to acquire power by framing a rule to enhance the punishment imposed under sub-section (2) (a) of Section 25.9. As already stated, the High Court was of the opinion that the subsection could confer no authority to frame a rule to invest the Government with power to revise an order of punishment made under S. 25 (2) (a).10. It is clear from the language of clause (c) of Section 25 (2) that only rules and orders which could be made under that clause are rules and orders of the exercise of the power conferred by Section 25 (2) (a). The words "the exercise of any power conferred by this sub-section shall be subject always to such rules and orders as may be made by the State Government in Section 25 (2) (c) would indicate that the Government have no power to make any rule or order arrogating to themselves a power of revision over an order of punishment passed under Section 25 (2) (a). What is made subject to the rules or orders to be passed or made by Government is "the exercise of any power conferred under clause (2) (a) of Section 25.Sub-section (2) (c) of Section 25 can only mean that the Government will have power to pass rules or orders for regulating the procedure or such other matters for the exercise of the power conferred by sub-section (2) (a) of Section 25 by the officers mentioned therein. The power to enhance the punishment is a power which can be exercised only after the concerned Officer has exercised his power under S. 25 (2) (a). In other words, rules or orders can be made by Government under S. 25 (2) (c) only for guiding him either in the matter o procedure, or the manner of arriving at a decision. It is obvious from the language of Section 25 (2) (c) that while the power exercisable under Section 25 (2) (a) is subject to the rules and orders made by Government, the decision which comes into being after the exercise of that power is not subject to the supervision of the Government by framing a rule or making an order in that behalf.Once the exercise of such power results in the imposition of a punishment, the punishment becomes final subject only to an appeal which is authorised by S. 27. The consequence is that Rule 17 (2) of the Rules, by which the Government sought to acquire power to call for the records and to revise orders passed under S. 25 (2) (a) and to enhance the punishment imposed, was clearly beyond its competence. | 0[ds]7. It is clear from sub-sec. (1) of Section 25 that the State Government or any officer authorised by the State Government under sub-section (2) of that section is competent to impose the punishment of suspension, reduction, dismissal or removal on an Inspector or other member of the subordinate rank of the Police force on the grounds enumerated in that section. Sub-sec. (2) (a) consists of two parts. The first part authorises the Inspector General of Police, the Commissioner, and the Deputy Inspector General of Police to impose punishment which the State government could impose under sub-section (1). The other part of that sub-section says that a Superintendent of Police shall have the like authority in respect of any Police Officer subordinate to him below the grade of Inspector. It was in the exercise of this power that the Superintendent of Police here reduced the respondent to the rank of a Police constable.It is clear from the language of clause (c) of Section 25 (2) that only rules and orders which could be made under that clause are rules and orders of the exercise of the power conferred by Section 25 (2) (a). The words "the exercise of any power conferred by this sub-section shall be subject always to such rules and orders as may be made by the State Government in Section 25 (2) (c) would indicate that the Government have no power to make any rule or order arrogating to themselves a power of revision over an order of punishment passed under Section 25 (2) (a). What is made subject to the rules or orders to be passed or made by Government is "the exercise of any power conferred under clause (2) (a) of Section 25.Sub-section (2) (c) of Section 25 can only mean that the Government will have power to pass rules or orders for regulating the procedure or such other matters for the exercise of the power conferred by sub-section (2) (a) of Section 25 by the officers mentioned therein. The power to enhance the punishment is a power which can be exercised only after the concerned Officer has exercised his power under S. 25 (2) (a). In other words, rules or orders can be made by Government under S. 25 (2) (c) only for guiding him either in the matter o procedure, or the manner of arriving at a decision. It is obvious from the language of Section 25 (2) (c) that while the power exercisable under Section 25 (2) (a) is subject to the rules and orders made by Government, the decision which comes into being after the exercise of that power is not subject to the supervision of the Government by framing a rule or making an order in that behalf.Once the exercise of such power results in the imposition of a punishment, the punishment becomes final subject only to an appeal which is authorised by S. 27. The consequence is that Rule 17 (2) of the Rules, by which the Government sought to acquire power to call for the records and to revise orders passed under S. 25 (2) (a) and to enhance the punishment imposed, was clearly beyond its competence. | 0 | 1,587 | 619 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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25 of the Act and Rule 17 (2) of the Rules. The material part of Section 25 reads:"25 (1) The State Government or any officer authorised by sub-section (2) in that behalf may suspend, reduce. dismiss or remove an Inspector or any member of the subordinate ranks of the Police Force whom he shall think cruel, perverse, remiss or negligent in the discharge of his duty or unfit for the same, and may fine to an amount not exceeding one months pay, any member of the subordinate ranks of the Police Force, who is guilty of any breach of discipline or misconduct or any act rendering him unfit for the discharge of his duty, which does not require his suspension or dismissal.(2) (a) The Inspector-General, the Commissioner and the Deputy Inspector General shall have authority to punish an Inspector or any member of the subordinate ranks under sub-section (1). A Superintendent shall have the like authority in respect of any Police Officer subordinate to him below the grade of Inspector and may suspend an Inspector who is subordinate to him pending inquiry into a complaint against such Inspector and until an order of the Inspector General or Deputy Inspector-General can be obtained.xx xx xx(c) the exercise of any power conferred by this sub-section shall be subject always to such rules and orders as may be made by the State Government in that behalf.Rule 17 of the Rules reads:"1. The State Government shall alone have the power of revision and revision shall lie only in respect of punishments which are appellate.(2) The State Government, of its own motion or otherwise, may call for the record of any case in which an order has been made by an authority subordinate to it in the exercise of any power conferred on such authority by the Rules and may:(a) confirm, modify, or reverse the order, or(b) direct that further enquiry be held in the case;(c) reduce or enhance the punishment inflicted by the order:(d) make such other order in the case as it may deem fit.Provided that where it is proposed to enhance the punishment inflicted by any such order, the Police Officer concerned shall be given an opportunity of showing cause against the proposed enhancement.7. It is clear from sub-sec. (1) of Section 25 that the State Government or any officer authorised by the State Government under sub-section (2) of that section is competent to impose the punishment of suspension, reduction, dismissal or removal on an Inspector or other member of the subordinate rank of the Police force on the grounds enumerated in that section. Sub-sec. (2) (a) consists of two parts. The first part authorises the Inspector General of Police, the Commissioner, and the Deputy Inspector General of Police to impose punishment which the State government could impose under sub-section (1). The other part of that sub-section says that a Superintendent of Police shall have the like authority in respect of any Police Officer subordinate to him below the grade of Inspector. It was in the exercise of this power that the Superintendent of Police here reduced the respondent to the rank of a Police constable.8. Now the source of the power under which rule 17 was framed, as stated in the preamble to the rules, is sub-sec. (2) (c) of Section 25 of the Act and the question is whether this clause really authorised the Government to acquire power by framing a rule to enhance the punishment imposed under sub-section (2) (a) of Section 25.9. As already stated, the High Court was of the opinion that the subsection could confer no authority to frame a rule to invest the Government with power to revise an order of punishment made under S. 25 (2) (a).10. It is clear from the language of clause (c) of Section 25 (2) that only rules and orders which could be made under that clause are rules and orders of the exercise of the power conferred by Section 25 (2) (a). The words "the exercise of any power conferred by this sub-section shall be subject always to such rules and orders as may be made by the State Government in Section 25 (2) (c) would indicate that the Government have no power to make any rule or order arrogating to themselves a power of revision over an order of punishment passed under Section 25 (2) (a). What is made subject to the rules or orders to be passed or made by Government is "the exercise of any power conferred under clause (2) (a) of Section 25.Sub-section (2) (c) of Section 25 can only mean that the Government will have power to pass rules or orders for regulating the procedure or such other matters for the exercise of the power conferred by sub-section (2) (a) of Section 25 by the officers mentioned therein. The power to enhance the punishment is a power which can be exercised only after the concerned Officer has exercised his power under S. 25 (2) (a). In other words, rules or orders can be made by Government under S. 25 (2) (c) only for guiding him either in the matter o procedure, or the manner of arriving at a decision. It is obvious from the language of Section 25 (2) (c) that while the power exercisable under Section 25 (2) (a) is subject to the rules and orders made by Government, the decision which comes into being after the exercise of that power is not subject to the supervision of the Government by framing a rule or making an order in that behalf.Once the exercise of such power results in the imposition of a punishment, the punishment becomes final subject only to an appeal which is authorised by S. 27. The consequence is that Rule 17 (2) of the Rules, by which the Government sought to acquire power to call for the records and to revise orders passed under S. 25 (2) (a) and to enhance the punishment imposed, was clearly beyond its competence.
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### Explanation:
7. It is clear from sub-sec. (1) of Section 25 that the State Government or any officer authorised by the State Government under sub-section (2) of that section is competent to impose the punishment of suspension, reduction, dismissal or removal on an Inspector or other member of the subordinate rank of the Police force on the grounds enumerated in that section. Sub-sec. (2) (a) consists of two parts. The first part authorises the Inspector General of Police, the Commissioner, and the Deputy Inspector General of Police to impose punishment which the State government could impose under sub-section (1). The other part of that sub-section says that a Superintendent of Police shall have the like authority in respect of any Police Officer subordinate to him below the grade of Inspector. It was in the exercise of this power that the Superintendent of Police here reduced the respondent to the rank of a Police constable.It is clear from the language of clause (c) of Section 25 (2) that only rules and orders which could be made under that clause are rules and orders of the exercise of the power conferred by Section 25 (2) (a). The words "the exercise of any power conferred by this sub-section shall be subject always to such rules and orders as may be made by the State Government in Section 25 (2) (c) would indicate that the Government have no power to make any rule or order arrogating to themselves a power of revision over an order of punishment passed under Section 25 (2) (a). What is made subject to the rules or orders to be passed or made by Government is "the exercise of any power conferred under clause (2) (a) of Section 25.Sub-section (2) (c) of Section 25 can only mean that the Government will have power to pass rules or orders for regulating the procedure or such other matters for the exercise of the power conferred by sub-section (2) (a) of Section 25 by the officers mentioned therein. The power to enhance the punishment is a power which can be exercised only after the concerned Officer has exercised his power under S. 25 (2) (a). In other words, rules or orders can be made by Government under S. 25 (2) (c) only for guiding him either in the matter o procedure, or the manner of arriving at a decision. It is obvious from the language of Section 25 (2) (c) that while the power exercisable under Section 25 (2) (a) is subject to the rules and orders made by Government, the decision which comes into being after the exercise of that power is not subject to the supervision of the Government by framing a rule or making an order in that behalf.Once the exercise of such power results in the imposition of a punishment, the punishment becomes final subject only to an appeal which is authorised by S. 27. The consequence is that Rule 17 (2) of the Rules, by which the Government sought to acquire power to call for the records and to revise orders passed under S. 25 (2) (a) and to enhance the punishment imposed, was clearly beyond its competence.
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M/s. Thiagarajar Charities Vs. Additional Commissioner of Income Tax and Another | involves the uplift of the rural masses, and is directed for the welfare of such people. Majority of such persons belong to the poor (or poorer) segments of the society. Similarly cottage industry is associated with the idea of a small, simple enterprise or industry in which employees, work in their own houses or in a small place gathered together for the purpose, using their own equipments and is usually found in rural areas/places or so carried on, by the poor (or poorer) section of the society. In substance, the above activity, specified in cl. (1)(g) is to afford relief to the poor. We understand cl. 1(g) of the trust deed dt. 4th June, 1962 as only vesting a power in the trustees to do certain things to effectuate the main objects of the trust contained in cl. 1(a) of the Deed - to start, run, develop educational, technical, vocational and other institutions and institutes for the welfare and uplift of the general Indian public. The power so vested in the trustees under cl. (g) cannot be called as the objects of the trust. So understood, we have no hesitation to hold that the Tribunal and also the High Court erred in construing cl. (g) aforesaid as object of the trust enabling it to carry on a business with a profit motive. Looked at from a different angle, and in the alternative, it is clear that the business of purchasing and selling cotton, cotton yarn, cloth and other fibres, etc., was held under trust; the said business was started in exercise of the powers vested in the trustees under cl. 7(e) r/w cl. 32 of the resolution dt. 6th June, 1962 and in view of cl. 3 of the deed, it is the corpus of the trust in reality. It is not an object of the trust. So, it cannot be said that the trust is carrying on (business) - an activity for profit. The business-corpus-property held under trust produces or results in income, like any other property. That is all. The business is only a means of achieving the object of the trust; it is a medium through which the objects are accomplished. In this view, the entire approach made by the Tribunal as also by the High Court fails to give due effect to the trust deed as a whole and is palpably erroneous and the resultant conclusion is vitiated, in denying the exemption to the appellant-trust. We hold accordingly. 10. Counsel for the appellant-assessee drew our attention to a decision rendered by a Constitution Bench of this Court in Addl. CIT vs. Surat Art Silk Cloth Manufacturers Association (SC) : TC 23R.195, and contended that the dominant purpose as could be gleaned from the various clauses of the trust deed is only to subserve the charitable purpose and not to earn profit and so, the appellant-assessee is entitled, in any view of the matter. [even if this case falls under the fourth limb of s. 2(25)] to the exemption under s. 11 of the Act. Our attention was invited to the following observations of Bhagwati, J. (who delivered the judgment of the majority) at pages 25-26 of the report which is to the following effect : ......... The test which has, therefore, now to be applied is whether the predominant object of the activity involved in carrying out the object of general public utility is to subserve the charitable purpose or to earn profit. Where profit making is the predominant object of the activity, the purpose, though an object of general public utility, would cease to be a charitable purpose. But where the predominant object of the activity is to carry out the charitable purpose and not to earn profit, it would not lose its character of a charitable purpose merely because some profit arises from the activity. The exclusionary clause does not require that the activity must be carried on in such a manner that it does not result in any profit. It would indeed be difficult for persons in charge of a trust or institution to so carry on the activity that the expenditure balances the income and there is no resulting profit. That would not only be difficult of practical realisation but would also reflect unsound principle of management. We, therefore, agree with Beg J., when he said in Sole Trustee, Loka Shikshana Trust vs. CIT 1975 CTR 281 (SC) : TC 23R.161 that :If the profits must necessarily feed a charitable purpose under the terms of the trust, the mere fact that the activities of the trust yield profit will not alter the charitable character of the trust. The test now is, more clearly than in the past, the genuineness of the purpose tested by the obligation created to spend the money exclusively or essentially on charity. The learned judge also added that the restrictive condition that the purpose should not involve the carrying on of any activity for profit would be satisfied if profit-making is not the real object. We wholly endorse these observations. We are of the view that the above test is also satisfied on the facts of this case. 11. It appears from the affidavit filed by the appellant-trust, which is available at page 142 of the paper book, that an aggregate sum of Rs. 16, 48, 030 was spent for charitable purposes during the period from 4th June, 1962 to 31st May, 1967. The purposes are aid to the various colleges, orphanages, relief to the poor and different categories or types of education. It also appears that in one of the assessment years, the amount so applied is much more than the total income. The facts available in the records go to show that the profits or amounts earned in the business fed the charitable purposes specified in the trust deed. In other words, the amounts earned had been essentially spent on charity. There can be no doubt that profit-making was not the real object of the trust. | 1[ds]9. The objects of the trust have been clearly stated in paragraph 1 of the trust Deed. The main purpose and objects of the trust are education, medical relief and poor relief. In that behalf, the trust has been authorised to establish, maintain, run, etc., educational institutions, technological and other institutes for the welfare and uplift of the general Indian public, to assist in the establishment and running of hospitals, clinics and dispensaries, etc., to assist in building and erection of houses and places of residence for the poor; and to afford relief to the poor by giving food, clothing and to help them in distress during earthquake, flood, famine, pestilence, etc. In this connection, we should notice cl. 1(g) which is to the following effect :(g) To engage in, carry on, help, aid and assist and promote rural reconstruction work, cottage industry and all other matters incidental thereto in IndiaThough this sub-clause is included among the objects clause, it is, really only a power. The language employed in cl. 1(g) itself suggests that it is a power vested in the trust to engage and promote, etc., rural reconstruction work, cottage industry and all other matters incidental thereto. A three Member Bench of this Court in Dharmadeepti vs. CIT (supra) construed cl. 3(b) of the Deed in the said decision, specified among the objects clause, as one really vesting powers, incidental or ancillary to the attainment of the main objects in cl. 3(a) therein, in the Appropriate Authority. We should also bear in mind that this power is so vested in this case, to effectuate the objects contained in cl. 1(a) to establish, maintain schools, colleges, workshops industrial, technological and other institutes, etc. *of whatever description for the welfare and uplift of the general Indian public. Rural reconstruction, necessarily involves the uplift of the rural masses, and is directed for the welfare of such people. Majority of such persons belong to the poor (or poorer) segments of the society. Similarly cottage industry is associated with the idea of a small, simple enterprise or industry in which employees, work in their own houses or in a small place gathered together for the purpose, using their own equipments and is usually found in rural areas/places or so carried on, by the poor (or poorer) section of the society. In substance, the above activity, specified in cl. (1)(g) is to afford relief to the poor. We understand cl. 1(g) of the trust deed dt. 4th June, 1962 as only vesting a power in the trustees to do certain things to effectuate the main objects of the trust contained in cl. 1(a) of the Deed - to start, run, develop educational, technical, vocational and other institutions and institutes for the welfare and uplift of the general Indian public. The power so vested in the trustees under cl. (g) cannot be called as the objects of the trust. So understood, we have no hesitation to hold that the Tribunal and also the High Court erred in construing cl. (g) aforesaid as object of the trust enabling it to carry on a business with a profit motive. Looked at from a different angle, and in the alternative, it is clear that the business of purchasing and selling cotton, cotton yarn, cloth and other fibres, etc., was held under trust; the said business was started in exercise of the powers vested in the trustees under cl. 7(e) r/w cl. 32 of the resolution dt. 6th June, 1962 and in view of cl. 3 of the deed, it is the corpus of the trust in reality. It is not an object of the trust. So, it cannot be said that the trust is carrying on (business) - an activity for profit. The business-corpus-property held under trust produces or results in income, like any other property. That is all. The business is only a means of achieving the object of the trust; it is a medium through which the objects are accomplished. In this view, the entire approach made by the Tribunal as also by the High Court fails to give due effect to the trust deed as a whole and is palpably erroneous and the resultant conclusion is vitiated, in denying the exemption to the appellant-trust. We hold accordingly10. Counsel for the appellant-assessee drew our attention to a decision rendered by a Constitution Bench of this Court in Addl. CIT vs. Surat Art Silk Cloth Manufacturers Association (SC) : TC 23R.195, and contended that the dominant purpose as could be gleaned from the various clauses of the trust deed is only to subserve the charitable purpose and not to earn profit and so, the appellant-assessee is entitled, in any view of the matter. [even if this case falls under the fourth limb of s. 2(25)] to the exemption under s. 11 of the Act. Our attention was invited to the following observations of Bhagwati, J. (who delivered the judgment of the majority) at pages 25-26 of the report which is to the following effect :......... The test which has, therefore, now to be applied is whether the predominant object of the activity involved in carrying out the object of general public utility is to subserve the charitable purpose or to earn profit. Where profit making is the predominant object of the activity, the purpose, though an object of general public utility, would cease to be a charitable purpose. But where the predominant object of the activity is to carry out the charitable purpose and not to earn profit, it would not lose its character of a charitable purpose merely because some profit arises from the activity. The exclusionary clause does not require that the activity must be carried on in such a manner that it does not result in any profit. It would indeed be difficult for persons in charge of a trust or institution to so carry on the activity that the expenditure balances the income and there is no resulting profit. That would not only be difficult of practical realisation but would also reflect unsound principle of management. We, therefore, agree with Beg J., when he said in Sole Trustee, Loka Shikshana Trust vs. CIT 1975 CTR 281 (SC) : TC 23R.161 that :If the profits must necessarily feed a charitable purpose under the terms of the trust, the mere fact that the activities of the trust yield profit will not alter the charitable character of the trust. The test now is, more clearly than in the past, the genuineness of the purpose tested by the obligation created to spend the money exclusively or essentially on charity.The learned judge also added that the restrictive condition that the purpose should not involve the carrying on of any activity for profit would be satisfied if profit-making is not the real object. We wholly endorse these observationsWe are of the view that the above test is also satisfied on the facts of this case11. It appears from the affidavit filed by the appellant-trust, which is available at page 142 of the paper book, that an aggregate sum of Rs. 16, 48, 030 was spent for charitable purposes during the period from 4th June, 1962 to 31st May, 1967. The purposes are aid to the various colleges, orphanages, relief to the poor and different categories or types of education. It also appears that in one of the assessment years, the amount so applied is much more than the total income. The facts available in the records go to show that the profits or amounts earned in the business fed the charitable purposes specified in the trust deed. In other words, the amounts earned had been essentially spent on charity. There can be no doubt that profit-making was not the real object of the trust. | 1 | 6,553 | 1,509 | ### 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:
involves the uplift of the rural masses, and is directed for the welfare of such people. Majority of such persons belong to the poor (or poorer) segments of the society. Similarly cottage industry is associated with the idea of a small, simple enterprise or industry in which employees, work in their own houses or in a small place gathered together for the purpose, using their own equipments and is usually found in rural areas/places or so carried on, by the poor (or poorer) section of the society. In substance, the above activity, specified in cl. (1)(g) is to afford relief to the poor. We understand cl. 1(g) of the trust deed dt. 4th June, 1962 as only vesting a power in the trustees to do certain things to effectuate the main objects of the trust contained in cl. 1(a) of the Deed - to start, run, develop educational, technical, vocational and other institutions and institutes for the welfare and uplift of the general Indian public. The power so vested in the trustees under cl. (g) cannot be called as the objects of the trust. So understood, we have no hesitation to hold that the Tribunal and also the High Court erred in construing cl. (g) aforesaid as object of the trust enabling it to carry on a business with a profit motive. Looked at from a different angle, and in the alternative, it is clear that the business of purchasing and selling cotton, cotton yarn, cloth and other fibres, etc., was held under trust; the said business was started in exercise of the powers vested in the trustees under cl. 7(e) r/w cl. 32 of the resolution dt. 6th June, 1962 and in view of cl. 3 of the deed, it is the corpus of the trust in reality. It is not an object of the trust. So, it cannot be said that the trust is carrying on (business) - an activity for profit. The business-corpus-property held under trust produces or results in income, like any other property. That is all. The business is only a means of achieving the object of the trust; it is a medium through which the objects are accomplished. In this view, the entire approach made by the Tribunal as also by the High Court fails to give due effect to the trust deed as a whole and is palpably erroneous and the resultant conclusion is vitiated, in denying the exemption to the appellant-trust. We hold accordingly. 10. Counsel for the appellant-assessee drew our attention to a decision rendered by a Constitution Bench of this Court in Addl. CIT vs. Surat Art Silk Cloth Manufacturers Association (SC) : TC 23R.195, and contended that the dominant purpose as could be gleaned from the various clauses of the trust deed is only to subserve the charitable purpose and not to earn profit and so, the appellant-assessee is entitled, in any view of the matter. [even if this case falls under the fourth limb of s. 2(25)] to the exemption under s. 11 of the Act. Our attention was invited to the following observations of Bhagwati, J. (who delivered the judgment of the majority) at pages 25-26 of the report which is to the following effect : ......... The test which has, therefore, now to be applied is whether the predominant object of the activity involved in carrying out the object of general public utility is to subserve the charitable purpose or to earn profit. Where profit making is the predominant object of the activity, the purpose, though an object of general public utility, would cease to be a charitable purpose. But where the predominant object of the activity is to carry out the charitable purpose and not to earn profit, it would not lose its character of a charitable purpose merely because some profit arises from the activity. The exclusionary clause does not require that the activity must be carried on in such a manner that it does not result in any profit. It would indeed be difficult for persons in charge of a trust or institution to so carry on the activity that the expenditure balances the income and there is no resulting profit. That would not only be difficult of practical realisation but would also reflect unsound principle of management. We, therefore, agree with Beg J., when he said in Sole Trustee, Loka Shikshana Trust vs. CIT 1975 CTR 281 (SC) : TC 23R.161 that :If the profits must necessarily feed a charitable purpose under the terms of the trust, the mere fact that the activities of the trust yield profit will not alter the charitable character of the trust. The test now is, more clearly than in the past, the genuineness of the purpose tested by the obligation created to spend the money exclusively or essentially on charity. The learned judge also added that the restrictive condition that the purpose should not involve the carrying on of any activity for profit would be satisfied if profit-making is not the real object. We wholly endorse these observations. We are of the view that the above test is also satisfied on the facts of this case. 11. It appears from the affidavit filed by the appellant-trust, which is available at page 142 of the paper book, that an aggregate sum of Rs. 16, 48, 030 was spent for charitable purposes during the period from 4th June, 1962 to 31st May, 1967. The purposes are aid to the various colleges, orphanages, relief to the poor and different categories or types of education. It also appears that in one of the assessment years, the amount so applied is much more than the total income. The facts available in the records go to show that the profits or amounts earned in the business fed the charitable purposes specified in the trust deed. In other words, the amounts earned had been essentially spent on charity. There can be no doubt that profit-making was not the real object of the trust.
### Response:
1
### Explanation:
Indian public. Rural reconstruction, necessarily involves the uplift of the rural masses, and is directed for the welfare of such people. Majority of such persons belong to the poor (or poorer) segments of the society. Similarly cottage industry is associated with the idea of a small, simple enterprise or industry in which employees, work in their own houses or in a small place gathered together for the purpose, using their own equipments and is usually found in rural areas/places or so carried on, by the poor (or poorer) section of the society. In substance, the above activity, specified in cl. (1)(g) is to afford relief to the poor. We understand cl. 1(g) of the trust deed dt. 4th June, 1962 as only vesting a power in the trustees to do certain things to effectuate the main objects of the trust contained in cl. 1(a) of the Deed - to start, run, develop educational, technical, vocational and other institutions and institutes for the welfare and uplift of the general Indian public. The power so vested in the trustees under cl. (g) cannot be called as the objects of the trust. So understood, we have no hesitation to hold that the Tribunal and also the High Court erred in construing cl. (g) aforesaid as object of the trust enabling it to carry on a business with a profit motive. Looked at from a different angle, and in the alternative, it is clear that the business of purchasing and selling cotton, cotton yarn, cloth and other fibres, etc., was held under trust; the said business was started in exercise of the powers vested in the trustees under cl. 7(e) r/w cl. 32 of the resolution dt. 6th June, 1962 and in view of cl. 3 of the deed, it is the corpus of the trust in reality. It is not an object of the trust. So, it cannot be said that the trust is carrying on (business) - an activity for profit. The business-corpus-property held under trust produces or results in income, like any other property. That is all. The business is only a means of achieving the object of the trust; it is a medium through which the objects are accomplished. In this view, the entire approach made by the Tribunal as also by the High Court fails to give due effect to the trust deed as a whole and is palpably erroneous and the resultant conclusion is vitiated, in denying the exemption to the appellant-trust. We hold accordingly10. Counsel for the appellant-assessee drew our attention to a decision rendered by a Constitution Bench of this Court in Addl. CIT vs. Surat Art Silk Cloth Manufacturers Association (SC) : TC 23R.195, and contended that the dominant purpose as could be gleaned from the various clauses of the trust deed is only to subserve the charitable purpose and not to earn profit and so, the appellant-assessee is entitled, in any view of the matter. [even if this case falls under the fourth limb of s. 2(25)] to the exemption under s. 11 of the Act. Our attention was invited to the following observations of Bhagwati, J. (who delivered the judgment of the majority) at pages 25-26 of the report which is to the following effect :......... The test which has, therefore, now to be applied is whether the predominant object of the activity involved in carrying out the object of general public utility is to subserve the charitable purpose or to earn profit. Where profit making is the predominant object of the activity, the purpose, though an object of general public utility, would cease to be a charitable purpose. But where the predominant object of the activity is to carry out the charitable purpose and not to earn profit, it would not lose its character of a charitable purpose merely because some profit arises from the activity. The exclusionary clause does not require that the activity must be carried on in such a manner that it does not result in any profit. It would indeed be difficult for persons in charge of a trust or institution to so carry on the activity that the expenditure balances the income and there is no resulting profit. That would not only be difficult of practical realisation but would also reflect unsound principle of management. We, therefore, agree with Beg J., when he said in Sole Trustee, Loka Shikshana Trust vs. CIT 1975 CTR 281 (SC) : TC 23R.161 that :If the profits must necessarily feed a charitable purpose under the terms of the trust, the mere fact that the activities of the trust yield profit will not alter the charitable character of the trust. The test now is, more clearly than in the past, the genuineness of the purpose tested by the obligation created to spend the money exclusively or essentially on charity.The learned judge also added that the restrictive condition that the purpose should not involve the carrying on of any activity for profit would be satisfied if profit-making is not the real object. We wholly endorse these observationsWe are of the view that the above test is also satisfied on the facts of this case11. It appears from the affidavit filed by the appellant-trust, which is available at page 142 of the paper book, that an aggregate sum of Rs. 16, 48, 030 was spent for charitable purposes during the period from 4th June, 1962 to 31st May, 1967. The purposes are aid to the various colleges, orphanages, relief to the poor and different categories or types of education. It also appears that in one of the assessment years, the amount so applied is much more than the total income. The facts available in the records go to show that the profits or amounts earned in the business fed the charitable purposes specified in the trust deed. In other words, the amounts earned had been essentially spent on charity. There can be no doubt that profit-making was not the real object of the trust.
|
War Profits Tax Commissioner, Madhya Pradesh,Indore Vs. M/S. Rinodram Balchand Of Ujjain | on a business" and before the words "to the whole of which" and shall be always deemed to be there from the date from which the said Ordinance came into force."7. The High Court felt no difficulty holding that the explanation applied, and that on its plain terms the dividend income which the assessees received from the profits of Binod Mills Ltd. was not liable to be included in the taxable income. The High Court observed :"The language of the explanation is very plain, and it means that if income is received by way of dividends or profits from a company carrying on a business, to the whole of which the section of the Ordinance imposing the War Profits Tax applies, then the income has to be excluded in the assessment to War Profits Tax of the assessee receiving that income. The object of the explanation is clearly to avoid double taxation. Here it is not disputed that the dividend income which the assessee received was from the profits of the Binod Mills Limited and the Mills were subject to the burden of the War Profits Tax under the Ordinance. That being so, the explanation in terms applies to the case, and the assessee is entitled to claim that the dividend income of Rs. 11,09,332 received from Binod Mills could not be included in the computation of its profits for the purposes of War Profits Tax and was consequently not chargeable under the War Profits Tax Ordinance. Learned Advocate-General appearing for the State did not dispute this positions."8. Mr. Shroff, the learned counsel for the Commissioner, contends, first, that the explanation was not in existence at the relevant time, and, therefore, cannot be taken into consideration; secondly, that the explanation is an explanation to R. 3 (2) and not to R. 3 (1) and, therefore, cannot be used to explain R. 3 (1). Mr. Shroff complains that the High Court was wrong in thinking that the explanation formed part of Ordinance 2001, as it was originally promulgated. The High Court seems to have been under this impression because in the order refusing leave to appeal to this Court the High Court observed :"There was no omission at all on our part to consider the question whether the explanation was prospective or not. Indeed, this question was never raised by the learned Advocate-General, appearing for the Department and it was rightly not raised as the Explanation was not added subsequent to the promulgation of the Ordinance and the very basis of the assessment of the income of the assessee was that R. 3 of Schedule I of the Ordinance together with the Explanation applied to the income received by the assessee during the period from 1st July 1944 to 16th October 1944."9. It seems that Ordinance 2002 and Ordinance 2004 were not placed before the High Court and for this reason it assumed that the explanation was not added subsequent to the promulgation of the Ordinance.10. But even if it was added Subsequently, in our opinion, the explanation applies to the computation of the profits of the chargeable accounting period July 1, 1944 to October 16, 1944. If we read Ordinance 2002 and Ordinance 2004 together the legislative intention to make the explanation retrospective becomes clear. Apart from Ordinance 2004, it would have been very arguable that the explanation inserted by Ordinance 2002 was retrospective because it dealt with the computation of profits and would apply to all computation of profits made by the Taxing authorities after February 28, 1946. But we need not go into this question because Ordinance 2004 expressly assumes that the explanation was in existence from the date when the Ordinance came into force and no other meaning can be given to S. 2 of Ordinance 2004 because by deeming that the comma shall he deemed to be there from the date from which the Ordinance came into force it expressly assumes that the explanation was also in force from that date. Accordingly we are not inclined to accept the first contention of Mr. Shroff and we must hold that the explanation applies to the computation of profits of the chargeable accounting period July 1, 1944 to October 16, 1944.11. Regarding the second contention Mr. Shroff says that Ordinance 2002 expressly provides that the explanation shall be added in R. 3 (2) of the First Schedule to the Ordinance. He further says that this explanation is referred in Ordinance 2004 as "explanation of sub-r. (2) of R. 3 of Sch. 1".There is no doubt that Ordinance 2002 did purport to add this explanation to R. 3 (2) but it seems to us that if we look at the language of the explanation it was meant to be an explanation not only to R. 3 (2) but to R. 3 (1) also. First, the words "the income from investments to be included in the profits of the business under the provisions of this rule" are comprehensive and include income from investments both under R. 3 (1) and R. 3 (2). Secondly, there is no reason why any distinction should have been made between investments mentioned in R. 3 (1) and investments mentioned in R. 3 (2).Rule 3 (1) is general and deals with all investments from profits of all businesses and would include investments mentioned in R. 3 (2). Rule 3 (2) deals with investments of a certain business, i.e., business which consists wholly or mainly in the dealing in or holding of investments. We have not been able to appreciate why, if Mr. Shroff is right, was it necessary to distinguish between income from investments mentioned in R. 3 (1) and income from investments mentioned in R.3 (2). At any rate, the language of the explanation is quite clear and it seems to us that by the words "in R. 3 (2) of the First Schedule to the Ordinance, the following shall be added" what was really meant was to add the explanation below R. 3 (2). | 0[ds]9. It seems that Ordinance 2002 and Ordinance 2004 were not placed before the High Court and for this reason it assumed that the explanation was not added subsequent to the promulgation of the Ordinance.10. But even if it was added Subsequently, in our opinion, the explanation applies to the computation of the profits of the chargeable accounting period July 1, 1944 to October 16, 1944. If we read Ordinance 2002 and Ordinance 2004 together the legislative intention to make the explanation retrospective becomes clear. Apart from Ordinance 2004, it would have been very arguable that the explanation inserted by Ordinance 2002 was retrospective because it dealt with the computation of profits and would apply to all computation of profits made by the Taxing authorities after February 28, 1946. But we need not go into this question because Ordinance 2004 expressly assumes that the explanation was in existence from the date when the Ordinance came into force and no other meaning can be given to S. 2 of Ordinance 2004 because by deeming that the comma shall he deemed to be there from the date from which the Ordinance came into force it expressly assumes that the explanation was also in force from that date. Accordingly we are not inclined to accept the first contention of Mr. Shroff and we must hold that the explanation applies to the computation of profits of the chargeable accounting period July 1, 1944 to October 16,is no doubt that Ordinance 2002 did purport to add this explanation to R. 3 (2) but it seems to us that if we look at the language of the explanation it was meant to be an explanation not only to R. 3 (2) but to R. 3 (1) also. First, the words "the income from investments to be included in the profits of the business under the provisions of this rule" are comprehensive and include income from investments both under R. 3 (1) and R. 3 (2). Secondly, there is no reason why any distinction should have been made between investments mentioned in R. 3 (1) and investments mentioned in R. 3 (2).Rule 3 (1) is general and deals with all investments from profits of all businesses and would include investments mentioned in R. 3 (2). Rule 3 (2) deals with investments of a certain business, i.e., business which consists wholly or mainly in the dealing in or holding of investments. We have not been able to appreciate why, if Mr. Shroff is right, was it necessary to distinguish between income from investments mentioned in R. 3 (1) and income from investments mentioned in R.3 (2). At any rate, the language of the explanation is quite clear and it seems to us that by the words "in R. 3 (2) of the First Schedule to the Ordinance, the following shall be added" what was really meant was to add the explanation below R. 3 (2). | 0 | 2,307 | 553 | ### 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:
on a business" and before the words "to the whole of which" and shall be always deemed to be there from the date from which the said Ordinance came into force."7. The High Court felt no difficulty holding that the explanation applied, and that on its plain terms the dividend income which the assessees received from the profits of Binod Mills Ltd. was not liable to be included in the taxable income. The High Court observed :"The language of the explanation is very plain, and it means that if income is received by way of dividends or profits from a company carrying on a business, to the whole of which the section of the Ordinance imposing the War Profits Tax applies, then the income has to be excluded in the assessment to War Profits Tax of the assessee receiving that income. The object of the explanation is clearly to avoid double taxation. Here it is not disputed that the dividend income which the assessee received was from the profits of the Binod Mills Limited and the Mills were subject to the burden of the War Profits Tax under the Ordinance. That being so, the explanation in terms applies to the case, and the assessee is entitled to claim that the dividend income of Rs. 11,09,332 received from Binod Mills could not be included in the computation of its profits for the purposes of War Profits Tax and was consequently not chargeable under the War Profits Tax Ordinance. Learned Advocate-General appearing for the State did not dispute this positions."8. Mr. Shroff, the learned counsel for the Commissioner, contends, first, that the explanation was not in existence at the relevant time, and, therefore, cannot be taken into consideration; secondly, that the explanation is an explanation to R. 3 (2) and not to R. 3 (1) and, therefore, cannot be used to explain R. 3 (1). Mr. Shroff complains that the High Court was wrong in thinking that the explanation formed part of Ordinance 2001, as it was originally promulgated. The High Court seems to have been under this impression because in the order refusing leave to appeal to this Court the High Court observed :"There was no omission at all on our part to consider the question whether the explanation was prospective or not. Indeed, this question was never raised by the learned Advocate-General, appearing for the Department and it was rightly not raised as the Explanation was not added subsequent to the promulgation of the Ordinance and the very basis of the assessment of the income of the assessee was that R. 3 of Schedule I of the Ordinance together with the Explanation applied to the income received by the assessee during the period from 1st July 1944 to 16th October 1944."9. It seems that Ordinance 2002 and Ordinance 2004 were not placed before the High Court and for this reason it assumed that the explanation was not added subsequent to the promulgation of the Ordinance.10. But even if it was added Subsequently, in our opinion, the explanation applies to the computation of the profits of the chargeable accounting period July 1, 1944 to October 16, 1944. If we read Ordinance 2002 and Ordinance 2004 together the legislative intention to make the explanation retrospective becomes clear. Apart from Ordinance 2004, it would have been very arguable that the explanation inserted by Ordinance 2002 was retrospective because it dealt with the computation of profits and would apply to all computation of profits made by the Taxing authorities after February 28, 1946. But we need not go into this question because Ordinance 2004 expressly assumes that the explanation was in existence from the date when the Ordinance came into force and no other meaning can be given to S. 2 of Ordinance 2004 because by deeming that the comma shall he deemed to be there from the date from which the Ordinance came into force it expressly assumes that the explanation was also in force from that date. Accordingly we are not inclined to accept the first contention of Mr. Shroff and we must hold that the explanation applies to the computation of profits of the chargeable accounting period July 1, 1944 to October 16, 1944.11. Regarding the second contention Mr. Shroff says that Ordinance 2002 expressly provides that the explanation shall be added in R. 3 (2) of the First Schedule to the Ordinance. He further says that this explanation is referred in Ordinance 2004 as "explanation of sub-r. (2) of R. 3 of Sch. 1".There is no doubt that Ordinance 2002 did purport to add this explanation to R. 3 (2) but it seems to us that if we look at the language of the explanation it was meant to be an explanation not only to R. 3 (2) but to R. 3 (1) also. First, the words "the income from investments to be included in the profits of the business under the provisions of this rule" are comprehensive and include income from investments both under R. 3 (1) and R. 3 (2). Secondly, there is no reason why any distinction should have been made between investments mentioned in R. 3 (1) and investments mentioned in R. 3 (2).Rule 3 (1) is general and deals with all investments from profits of all businesses and would include investments mentioned in R. 3 (2). Rule 3 (2) deals with investments of a certain business, i.e., business which consists wholly or mainly in the dealing in or holding of investments. We have not been able to appreciate why, if Mr. Shroff is right, was it necessary to distinguish between income from investments mentioned in R. 3 (1) and income from investments mentioned in R.3 (2). At any rate, the language of the explanation is quite clear and it seems to us that by the words "in R. 3 (2) of the First Schedule to the Ordinance, the following shall be added" what was really meant was to add the explanation below R. 3 (2).
### Response:
0
### Explanation:
9. It seems that Ordinance 2002 and Ordinance 2004 were not placed before the High Court and for this reason it assumed that the explanation was not added subsequent to the promulgation of the Ordinance.10. But even if it was added Subsequently, in our opinion, the explanation applies to the computation of the profits of the chargeable accounting period July 1, 1944 to October 16, 1944. If we read Ordinance 2002 and Ordinance 2004 together the legislative intention to make the explanation retrospective becomes clear. Apart from Ordinance 2004, it would have been very arguable that the explanation inserted by Ordinance 2002 was retrospective because it dealt with the computation of profits and would apply to all computation of profits made by the Taxing authorities after February 28, 1946. But we need not go into this question because Ordinance 2004 expressly assumes that the explanation was in existence from the date when the Ordinance came into force and no other meaning can be given to S. 2 of Ordinance 2004 because by deeming that the comma shall he deemed to be there from the date from which the Ordinance came into force it expressly assumes that the explanation was also in force from that date. Accordingly we are not inclined to accept the first contention of Mr. Shroff and we must hold that the explanation applies to the computation of profits of the chargeable accounting period July 1, 1944 to October 16,is no doubt that Ordinance 2002 did purport to add this explanation to R. 3 (2) but it seems to us that if we look at the language of the explanation it was meant to be an explanation not only to R. 3 (2) but to R. 3 (1) also. First, the words "the income from investments to be included in the profits of the business under the provisions of this rule" are comprehensive and include income from investments both under R. 3 (1) and R. 3 (2). Secondly, there is no reason why any distinction should have been made between investments mentioned in R. 3 (1) and investments mentioned in R. 3 (2).Rule 3 (1) is general and deals with all investments from profits of all businesses and would include investments mentioned in R. 3 (2). Rule 3 (2) deals with investments of a certain business, i.e., business which consists wholly or mainly in the dealing in or holding of investments. We have not been able to appreciate why, if Mr. Shroff is right, was it necessary to distinguish between income from investments mentioned in R. 3 (1) and income from investments mentioned in R.3 (2). At any rate, the language of the explanation is quite clear and it seems to us that by the words "in R. 3 (2) of the First Schedule to the Ordinance, the following shall be added" what was really meant was to add the explanation below R. 3 (2).
|
Nashik Workers Union Vs. Hindustan Aeronautics Limited | that an inference that the corporation was the agent of the Government might be drawn where it was performing in substance governmental and not commercial functions. The Constitution Bench disagreed with the distinction thus made between the governmental activity and commercial function of Government companies. Barring this limited disagreement, however at the end of para 41 the Constitution Bench observed that it is evident that the Court correctly posed the question whether the State Government or the Central Government was the appropriate Government and rightly answered it. In para 42, the Constitution Bench examined the judgment of Hindustan Aeronautics Ltd. (supra) The Constitution Bench noted that the judgment in Heavy Engg. Mazdoor Union case (supra) was followed in Hindustan Aeronautics and it had taken note of the factor that if there was any disturbance of industrial peace in Barrackpore, the appropriate Government concerned for the maintenance of internal peace was the West Bengal Government. The Court observed that the factors which weighed with the Court could not be said to be irrelevant. 24. It is also necessary to note here that the three-Judge Bench referred to HAL 1 (supra) and ruled thus:- In Hindustan Aeronautics (supra) the fact that the industrial dispute had arisen in West Bengal and that the appropriate Government in the instant case for maintaining industrial peace was West Bengal was held to be relevant for the Governor of West Bengal to refer the dispute for adjudication. In Rashtriya Mill Mazdoor case (supra) the fact that the authorised Controller was appointed by the Central Government to supervise the undertaking was held as not making any difference. The fact that he was to work under the directions of the Central Government was held not to render the industrial undertaking an agent of the Central Government. 25. Thus, as is evident, in Tata Memorial Hospital Workers Union (supra) the Court had analysed the propositions in SAIL (supra) and opined that the same have to be seen in the background of the facts and merely because the Government companies/corporations and societies are discharging public functions and duties that does not by itself make them agents of the Central or the State Government. It is further ruled that industry or undertaking has to be carried under the authority of the Central Government or the State Government and that authority may be conferred either by a statute or by virtue of a relationship of principal and agent, or delegation of power. It has also been observed therein that when it comes conferring power by statute, there is not much difficulty, however, where it is not so, whether the undertaking is functioning under authority or not is a question of fact. 26. In the case at hand, the issue which arises for consideration is whether the decision in HAL 2 (supra) can be regarded as a binding precedent. As is noticeable, HAL 2 (supra) has not taken note of earlier decision in HAL 1 (supra). It has been clearly held in HAL 1 (supra) that regard being had to the dictionary clause of the ID Act for the purpose of Hindustan Aeronautics Limited, it is the State Government which has to make the reference. In HAL 2 (supra) the Court has referred to decision in SAILs case and opined that it is undisputed that Hindustan Aeronautics Limited is an undertaking of the Central Government and it is the Central Government which exercises full control over the same and, therefore, the appropriate Government is the Central Government. This analysis runs counter to HAL 1 (supra) and as well the ratio of the decision in SAILs case. On the contrary there is no discussion either on the facts or the law. It has been opined that the facts are undisputed. In HAL 1 (supra), the three-Judge Bench had referred to the decision in Heavy Engineering Mazdoor Union (supra). As has been held in Tata Memorial Hospital Workers Union (supra), the authority in Heavy Engineering Mazdoor Union (supra) has been approved in SAIL (supra) with some divergence. The authority in SAILs case, as the conclusion would show, covers two situations - the unamended provision and the amended provision. It does not disturb the principles stated in HAL 1 (supra). Thus, two aspects, first, the HAL 2 (supra) does not take note of HAL 1 (supra) and second, it proceeds on the basis of undisputed facts which are not stated. It is to be noted that there is nothing in the order in HAL 2 (supra) to suggest that Hindustan Aeronautics Limited is an agent of the Central Government. In our considered opinion, as HAL 2 (supra) has not noticed HAL 1 (supra) which has been approved in SAILs case, it cannot be considered as a binding precedent. Therefore, we hold that HAL 1 (supra) still holds good and lays down the correct law and we are bound by it as its foundation flows from Heavy Engineering Mazdoor Union (supra) which has been approved in SAIL (supra) with some divergence as has been stated in Tata Memorial Hospital Workers Union (supra). Be it stated, that divergence really does not affect the approval. We have no hesitation in our mind that HAL 2 (supra) cannot be regarded as a binding precedent. Ergo, it is clear that the Division Bench of the High Court has not applied the ratio in SAILs case correctly and, therefore, the entire anlaysis has to be held to be fallacious. 27. The controversy does not end there. It is perceptible that the High Court has not adverted to the merits of the case and dismissed L.P.A. No. 144 of 2002 on the ground that it did not survive after dismissal of L.P.A. No. 84 of 2006. As we have set aside the order passed in L.P.A. No. 84 of 2006 and opined that the appropriate Government in relation to the respondent company is the State Government, the matter has to be remitted to the High Court for fresh adjudication on merits. 28. Consequently, the | 1[ds]26. In the case at hand, the issue which arises for consideration is whether the decision in HAL 2 (supra) can be regarded as a binding precedent. As is noticeable, HAL 2 (supra) has not taken note of earlier decision in HAL 1 (supra). It has been clearly held in HAL 1 (supra) that regard being had to the dictionary clause of the ID Act for the purpose of Hindustan Aeronautics Limited, it is the State Government which has to make the reference. In HAL 2 (supra) the Court has referred to decision in SAILs case and opined that it is undisputed that Hindustan Aeronautics Limited is an undertaking of the Central Government and it is the Central Government which exercises full control over the same and, therefore, the appropriate Government is the Central Government. This analysis runs counter to HAL 1 (supra) and as well the ratio of the decision in SAILs case. On the contrary there is no discussion either on the facts or the law. It has been opined that the facts are undisputed. In HAL 1 (supra), the three-Judge Bench had referred to the decision in Heavy Engineering Mazdoor Union (supra). As has been held in Tata Memorial Hospital Workers Union (supra), the authority in Heavy Engineering Mazdoor Union (supra) has been approved in SAIL (supra) with some divergence. The authority in SAILs case, as the conclusion would show, covers two situations - the unamended provision and the amended provision. It does not disturb the principles stated in HAL 1 (supra). Thus, two aspects, first, the HAL 2 (supra) does not take note of HAL 1 (supra) and second, it proceeds on the basis of undisputed facts which are not stated. It is to be noted that there is nothing in the order in HAL 2 (supra) to suggest that Hindustan Aeronautics Limited is an agent of the Central Government. In our considered opinion, as HAL 2 (supra) has not noticed HAL 1 (supra) which has been approved in SAILs case, it cannot be considered as a binding precedent. Therefore, we hold that HAL 1 (supra) still holds good and lays down the correct law and we are bound by it as its foundation flows from Heavy Engineering Mazdoor Union (supra) which has been approved in SAIL (supra) with some divergence as has been stated in Tata Memorial Hospital Workers Union (supra). Be it stated, that divergence really does not affect the approval. We have no hesitation in our mind that HAL 2 (supra) cannot be regarded as a binding precedent. Ergo, it is clear that the Division Bench of the High Court has not applied the ratio in SAILs case correctly and, therefore, the entire anlaysis has to be held to be fallacious27. The controversy does not end there. It is perceptible that the High Court has not adverted to the merits of the case and dismissed L.P.A. No. 144 of 2002 on the ground that it did not survive after dismissal of L.P.A. No. 84 of 2006. As we have set aside the order passed in L.P.A. No. 84 of 2006 and opined that the appropriate Government in relation to the respondent company is the State Government, the matter has to be remitted to the High Court for fresh adjudication on merits | 1 | 7,433 | 646 | ### 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:
that an inference that the corporation was the agent of the Government might be drawn where it was performing in substance governmental and not commercial functions. The Constitution Bench disagreed with the distinction thus made between the governmental activity and commercial function of Government companies. Barring this limited disagreement, however at the end of para 41 the Constitution Bench observed that it is evident that the Court correctly posed the question whether the State Government or the Central Government was the appropriate Government and rightly answered it. In para 42, the Constitution Bench examined the judgment of Hindustan Aeronautics Ltd. (supra) The Constitution Bench noted that the judgment in Heavy Engg. Mazdoor Union case (supra) was followed in Hindustan Aeronautics and it had taken note of the factor that if there was any disturbance of industrial peace in Barrackpore, the appropriate Government concerned for the maintenance of internal peace was the West Bengal Government. The Court observed that the factors which weighed with the Court could not be said to be irrelevant. 24. It is also necessary to note here that the three-Judge Bench referred to HAL 1 (supra) and ruled thus:- In Hindustan Aeronautics (supra) the fact that the industrial dispute had arisen in West Bengal and that the appropriate Government in the instant case for maintaining industrial peace was West Bengal was held to be relevant for the Governor of West Bengal to refer the dispute for adjudication. In Rashtriya Mill Mazdoor case (supra) the fact that the authorised Controller was appointed by the Central Government to supervise the undertaking was held as not making any difference. The fact that he was to work under the directions of the Central Government was held not to render the industrial undertaking an agent of the Central Government. 25. Thus, as is evident, in Tata Memorial Hospital Workers Union (supra) the Court had analysed the propositions in SAIL (supra) and opined that the same have to be seen in the background of the facts and merely because the Government companies/corporations and societies are discharging public functions and duties that does not by itself make them agents of the Central or the State Government. It is further ruled that industry or undertaking has to be carried under the authority of the Central Government or the State Government and that authority may be conferred either by a statute or by virtue of a relationship of principal and agent, or delegation of power. It has also been observed therein that when it comes conferring power by statute, there is not much difficulty, however, where it is not so, whether the undertaking is functioning under authority or not is a question of fact. 26. In the case at hand, the issue which arises for consideration is whether the decision in HAL 2 (supra) can be regarded as a binding precedent. As is noticeable, HAL 2 (supra) has not taken note of earlier decision in HAL 1 (supra). It has been clearly held in HAL 1 (supra) that regard being had to the dictionary clause of the ID Act for the purpose of Hindustan Aeronautics Limited, it is the State Government which has to make the reference. In HAL 2 (supra) the Court has referred to decision in SAILs case and opined that it is undisputed that Hindustan Aeronautics Limited is an undertaking of the Central Government and it is the Central Government which exercises full control over the same and, therefore, the appropriate Government is the Central Government. This analysis runs counter to HAL 1 (supra) and as well the ratio of the decision in SAILs case. On the contrary there is no discussion either on the facts or the law. It has been opined that the facts are undisputed. In HAL 1 (supra), the three-Judge Bench had referred to the decision in Heavy Engineering Mazdoor Union (supra). As has been held in Tata Memorial Hospital Workers Union (supra), the authority in Heavy Engineering Mazdoor Union (supra) has been approved in SAIL (supra) with some divergence. The authority in SAILs case, as the conclusion would show, covers two situations - the unamended provision and the amended provision. It does not disturb the principles stated in HAL 1 (supra). Thus, two aspects, first, the HAL 2 (supra) does not take note of HAL 1 (supra) and second, it proceeds on the basis of undisputed facts which are not stated. It is to be noted that there is nothing in the order in HAL 2 (supra) to suggest that Hindustan Aeronautics Limited is an agent of the Central Government. In our considered opinion, as HAL 2 (supra) has not noticed HAL 1 (supra) which has been approved in SAILs case, it cannot be considered as a binding precedent. Therefore, we hold that HAL 1 (supra) still holds good and lays down the correct law and we are bound by it as its foundation flows from Heavy Engineering Mazdoor Union (supra) which has been approved in SAIL (supra) with some divergence as has been stated in Tata Memorial Hospital Workers Union (supra). Be it stated, that divergence really does not affect the approval. We have no hesitation in our mind that HAL 2 (supra) cannot be regarded as a binding precedent. Ergo, it is clear that the Division Bench of the High Court has not applied the ratio in SAILs case correctly and, therefore, the entire anlaysis has to be held to be fallacious. 27. The controversy does not end there. It is perceptible that the High Court has not adverted to the merits of the case and dismissed L.P.A. No. 144 of 2002 on the ground that it did not survive after dismissal of L.P.A. No. 84 of 2006. As we have set aside the order passed in L.P.A. No. 84 of 2006 and opined that the appropriate Government in relation to the respondent company is the State Government, the matter has to be remitted to the High Court for fresh adjudication on merits. 28. Consequently, the
### Response:
1
### Explanation:
26. In the case at hand, the issue which arises for consideration is whether the decision in HAL 2 (supra) can be regarded as a binding precedent. As is noticeable, HAL 2 (supra) has not taken note of earlier decision in HAL 1 (supra). It has been clearly held in HAL 1 (supra) that regard being had to the dictionary clause of the ID Act for the purpose of Hindustan Aeronautics Limited, it is the State Government which has to make the reference. In HAL 2 (supra) the Court has referred to decision in SAILs case and opined that it is undisputed that Hindustan Aeronautics Limited is an undertaking of the Central Government and it is the Central Government which exercises full control over the same and, therefore, the appropriate Government is the Central Government. This analysis runs counter to HAL 1 (supra) and as well the ratio of the decision in SAILs case. On the contrary there is no discussion either on the facts or the law. It has been opined that the facts are undisputed. In HAL 1 (supra), the three-Judge Bench had referred to the decision in Heavy Engineering Mazdoor Union (supra). As has been held in Tata Memorial Hospital Workers Union (supra), the authority in Heavy Engineering Mazdoor Union (supra) has been approved in SAIL (supra) with some divergence. The authority in SAILs case, as the conclusion would show, covers two situations - the unamended provision and the amended provision. It does not disturb the principles stated in HAL 1 (supra). Thus, two aspects, first, the HAL 2 (supra) does not take note of HAL 1 (supra) and second, it proceeds on the basis of undisputed facts which are not stated. It is to be noted that there is nothing in the order in HAL 2 (supra) to suggest that Hindustan Aeronautics Limited is an agent of the Central Government. In our considered opinion, as HAL 2 (supra) has not noticed HAL 1 (supra) which has been approved in SAILs case, it cannot be considered as a binding precedent. Therefore, we hold that HAL 1 (supra) still holds good and lays down the correct law and we are bound by it as its foundation flows from Heavy Engineering Mazdoor Union (supra) which has been approved in SAIL (supra) with some divergence as has been stated in Tata Memorial Hospital Workers Union (supra). Be it stated, that divergence really does not affect the approval. We have no hesitation in our mind that HAL 2 (supra) cannot be regarded as a binding precedent. Ergo, it is clear that the Division Bench of the High Court has not applied the ratio in SAILs case correctly and, therefore, the entire anlaysis has to be held to be fallacious27. The controversy does not end there. It is perceptible that the High Court has not adverted to the merits of the case and dismissed L.P.A. No. 144 of 2002 on the ground that it did not survive after dismissal of L.P.A. No. 84 of 2006. As we have set aside the order passed in L.P.A. No. 84 of 2006 and opined that the appropriate Government in relation to the respondent company is the State Government, the matter has to be remitted to the High Court for fresh adjudication on merits
|
Maloon Lawrence Cecil D' Souza Vs. Union Of India & Ors | seniority list was according issued.5. The petition has been resisted by the respondents and the affidavit of P. S. Mehra. Under-Secretary to the Government of India. Ministry of Finance, Department of Revenue and Insurance has been filed in opposition to the petition.6. It has been argued by Mr. Ram Panjwani on behalf of the petitioner that as he was promoted Assistant Commissioner on August 19, 1955 while respondents 4 to 26 were promoted to that post subsequent to that date, the petitioner should be shown senior to those respondents. We find it difficult in accede to this contention. The fact that the petitioner was promoted as Assistant Commissioner prior to respondents 4 to 26 would not make him senior to respondents 4 to 26 because according to the seniority list issued on the basis of 1952 Seniority Rules the above mentioned respondents were senior to the petitioners. The seniority of the petitioner vis-a-vis respondent 4 to 26 has to be determined in the light of proposition No. 2 laid down by this Court in Karniks case. AIR 1970 SC 2092 (supra), according to which between an officer promoted earlier and another officer senior to him, but who was not considered in the meeting when the former was promoted, seniority in the list of Income-tax Officers will be reflected in the higher cadre. As respondents 4 to 26 were admittedly shown senior to the petitioner in the list as on October 1, 1956 prepared in accordance with 1952 Rules, their seniority qua the petitioner would be reflected in the higher cadre of Assistant Commissioners. It has not been shown to us that the names of respondents 4 to 26 were also considered in the meeting wherein a decision was taken to promote the petitioner as Assistant Commissioner, Assuming that a decision to promote respondents 4 to 26 to the posts of Assistant Commissioners was taken at the same meeting in which it was decided to promote the petitioner, in that event proposition No. 1 in Karniks case (supra) would be attracted. Even in such a contingency the seniority of respondents 4 to 26 qua the petitioner would be reflected in the list of Assistant Commissioners. In the seniority list of Assistant Commissioners issued in 1958. the petition was shown junior to respondents 4 to 26 in conformity with the Seniority list of 1956. In the matter of confirmation to the post of Assistant Commissioner six out of respondent 4 to 26 were confirmed earlier than the petitioner, while the rest of them were confirmed at the same time, as the petitioner. The impugned list of seniority circulated in 1971 merely reflected the seniority of the petitioner and respondents 4 to 26 as determined in 1956.7. The case of S. K. Ghosh v. Union of India. (1968) 3 SCR 631 = (AIR 1968 SC 1385 ) to which reference has been made on behalf of the petitioners can be of no assistance to him as that case related to rules for recruitment to the grade of Directors of Postal Service in Indian postal Service. So far as the seniority of the petitioner vis-a-vis respondent 4 to 26 is concerned the matter is governed by 1952 Seniority Rules and those rules as already mentioned have been the subject of the decision of this court in Karniks case. AIR 1970 SC. 2092 (supra). In view of the direct decision of this Court relating to the precise question with which we are concerned it is not necessary, in our opinion, to refer to other rules.8. The matter can also be looked at from another angle. The seniority of the petitioner qua respondents 4 to 26 was determined as long ago as 1956 in accordance with 1952 Rules. The said seniority was reiterated in the seniority list issued in 1958. The present writ petition was filed in 1971.The petitioner in our opinion, cannot be allowed to challenge the seniority list after lapse of so many years. The fact that a seniority list was issued in 1971 in pursuance of the decision of this Court in Karniks case AIR 1970 SC 2092 (supra) would not clothe the petitioner with a fresh right to challenge the fixation of his seniority qua respondents 4 to 26 as the seniority list of 1971 merely reflected the seniority of the petitioner qua those respondents as already determined in 1956.Satisfactory service conditions postulate that there should be no sense of uncertainty amongst public servants because of stale claims made after lapse of 14 or 15 years. It is essential that any one who feels aggrieved with an administrative decision affecting ones seniority should act with due diligence and promptitude and not sleep over the matter. No satisfactory explanation has been furnished by the petitioner before us for the inordinate delay in approaching the Court. It is no doubt true that he made a representation against the seniority list issued in 1956 and 1958 but that representation was rejected in 1961. No cogent ground has been shown as to why the petitioner became quiescent and took no diligent steps to obtain redress.9. Although security of service cannot be used as a shield against administrative action for lapses of a public servant, by and large one of the essential requirements of contentment and efficiency in public services is a feeling of security. It is difficult no doubt to guarantee such security in all its varied aspects, it should at least be possible to ensure that matters like ones position in the seniority list after having been settled for once should not be liable to be reopened after lapse of many years at the instance of a party who has during the intervening period chosen to keep quiet. Baking up old matters like seniority after a long time is likely to result in administrative complications and difficulties. It would, therefore, appear to be in the interest of smoothness and efficiency of service that such matters should be given a quietus after lapse of some time. | 0[ds]We find it difficult in accede to this contention. The fact that the petitioner was promoted as Assistant Commissioner prior to respondents 4 to 26 would not make him senior to respondents 4 to 26 because according to the seniority list issued on the basis of 1952 Seniority Rules the above mentioned respondents were senior to theseniority of the petitioner vis-a-vis respondent 4 to 26 has to be determined in the light of proposition No. 2 laid down by this Court in Karniks case. AIR 1970 SC 2092 (supra), according to which between an officer promoted earlier and another officer senior to him, but who was not considered in the meeting when the former was promoted, seniority in the list of Income-tax Officers will be reflected in the higher cadre. As respondents 4 to 26 were admittedly shown senior to the petitioner in the list as on October 1, 1956 prepared in accordance with 1952 Rules, their seniority qua the petitioner would be reflected in the higher cadre of Assistant Commissioners. It has not been shown to us that the names of respondents 4 to 26 were also considered in the meeting wherein a decision was taken to promote the petitioner as Assistant Commissioner, Assuming that a decision to promote respondents 4 to 26 to the posts of Assistant Commissioners was taken at the same meeting in which it was decided to promote the petitioner, in that event proposition No. 1 in Karniks case (supra) would be attracted. Even in such a contingency the seniority of respondents 4 to 26 qua the petitioner would be reflected in the list of Assistant Commissioners. In the seniority list of Assistant Commissioners issued in 1958. the petition was shown junior to respondents 4 to 26 in conformity with the Seniority list of 1956. In the matter of confirmation to the post of Assistant Commissioner six out of respondent 4 to 26 were confirmed earlier than the petitioner, while the rest of them were confirmed at the same time, as the petitioner. The impugned list of seniority circulated in 1971 merely reflected the seniority of the petitioner and respondents 4 to 26 as determined in 1956.The matter can also be looked at from another angle. The seniority of the petitioner qua respondents 4 to 26 was determined as long ago as 1956 in accordance with 1952 Rules. The said seniority was reiterated in the seniority list issued in 1958. The present writ petition was filed in 1971.The petitioner in our opinion, cannot be allowed to challenge the seniority list after lapse of so many years. The fact that a seniority list was issued in 1971 in pursuance of the decision of this Court in Karniks case AIR 1970 SC 2092 (supra) would not clothe the petitioner with a fresh right to challenge the fixation of his seniority qua respondents 4 to 26 as the seniority list of 1971 merely reflected the seniority of the petitioner qua those respondents as already determined in 1956.Satisfactory service conditions postulate that there should be no sense of uncertainty amongst public servants because of stale claims made after lapse of 14 or 15 years. It is essential that any one who feels aggrieved with an administrative decision affecting ones seniority should act with due diligence and promptitude and not sleep over the matter. No satisfactory explanation has been furnished by the petitioner before us for the inordinate delay in approaching the Court. It is no doubt true that he made a representation against the seniority list issued in 1956 and 1958 but that representation was rejected in 1961. No cogent ground has been shown as to why the petitioner became quiescent and took no diligent steps to obtain redress.9. Although security of service cannot be used as a shield against administrative action for lapses of a public servant, by and large one of the essential requirements of contentment and efficiency in public services is a feeling of security. It is difficult no doubt to guarantee such security in all its varied aspects, it should at least be possible to ensure that matters like ones position in the seniority list after having been settled for once should not be liable to be reopened after lapse of many years at the instance of a party who has during the intervening period chosen to keep quiet. Baking up old matters like seniority after a long time is likely to result in administrative complications and difficulties. It would, therefore, appear to be in the interest of smoothness and efficiency of service that such matters should be given a quietus after lapse of someview of the direct decision of this Court relating to the precise question with which we are concerned it is not necessary, in our opinion, to refer to other rules. | 0 | 1,946 | 850 | ### 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:
seniority list was according issued.5. The petition has been resisted by the respondents and the affidavit of P. S. Mehra. Under-Secretary to the Government of India. Ministry of Finance, Department of Revenue and Insurance has been filed in opposition to the petition.6. It has been argued by Mr. Ram Panjwani on behalf of the petitioner that as he was promoted Assistant Commissioner on August 19, 1955 while respondents 4 to 26 were promoted to that post subsequent to that date, the petitioner should be shown senior to those respondents. We find it difficult in accede to this contention. The fact that the petitioner was promoted as Assistant Commissioner prior to respondents 4 to 26 would not make him senior to respondents 4 to 26 because according to the seniority list issued on the basis of 1952 Seniority Rules the above mentioned respondents were senior to the petitioners. The seniority of the petitioner vis-a-vis respondent 4 to 26 has to be determined in the light of proposition No. 2 laid down by this Court in Karniks case. AIR 1970 SC 2092 (supra), according to which between an officer promoted earlier and another officer senior to him, but who was not considered in the meeting when the former was promoted, seniority in the list of Income-tax Officers will be reflected in the higher cadre. As respondents 4 to 26 were admittedly shown senior to the petitioner in the list as on October 1, 1956 prepared in accordance with 1952 Rules, their seniority qua the petitioner would be reflected in the higher cadre of Assistant Commissioners. It has not been shown to us that the names of respondents 4 to 26 were also considered in the meeting wherein a decision was taken to promote the petitioner as Assistant Commissioner, Assuming that a decision to promote respondents 4 to 26 to the posts of Assistant Commissioners was taken at the same meeting in which it was decided to promote the petitioner, in that event proposition No. 1 in Karniks case (supra) would be attracted. Even in such a contingency the seniority of respondents 4 to 26 qua the petitioner would be reflected in the list of Assistant Commissioners. In the seniority list of Assistant Commissioners issued in 1958. the petition was shown junior to respondents 4 to 26 in conformity with the Seniority list of 1956. In the matter of confirmation to the post of Assistant Commissioner six out of respondent 4 to 26 were confirmed earlier than the petitioner, while the rest of them were confirmed at the same time, as the petitioner. The impugned list of seniority circulated in 1971 merely reflected the seniority of the petitioner and respondents 4 to 26 as determined in 1956.7. The case of S. K. Ghosh v. Union of India. (1968) 3 SCR 631 = (AIR 1968 SC 1385 ) to which reference has been made on behalf of the petitioners can be of no assistance to him as that case related to rules for recruitment to the grade of Directors of Postal Service in Indian postal Service. So far as the seniority of the petitioner vis-a-vis respondent 4 to 26 is concerned the matter is governed by 1952 Seniority Rules and those rules as already mentioned have been the subject of the decision of this court in Karniks case. AIR 1970 SC. 2092 (supra). In view of the direct decision of this Court relating to the precise question with which we are concerned it is not necessary, in our opinion, to refer to other rules.8. The matter can also be looked at from another angle. The seniority of the petitioner qua respondents 4 to 26 was determined as long ago as 1956 in accordance with 1952 Rules. The said seniority was reiterated in the seniority list issued in 1958. The present writ petition was filed in 1971.The petitioner in our opinion, cannot be allowed to challenge the seniority list after lapse of so many years. The fact that a seniority list was issued in 1971 in pursuance of the decision of this Court in Karniks case AIR 1970 SC 2092 (supra) would not clothe the petitioner with a fresh right to challenge the fixation of his seniority qua respondents 4 to 26 as the seniority list of 1971 merely reflected the seniority of the petitioner qua those respondents as already determined in 1956.Satisfactory service conditions postulate that there should be no sense of uncertainty amongst public servants because of stale claims made after lapse of 14 or 15 years. It is essential that any one who feels aggrieved with an administrative decision affecting ones seniority should act with due diligence and promptitude and not sleep over the matter. No satisfactory explanation has been furnished by the petitioner before us for the inordinate delay in approaching the Court. It is no doubt true that he made a representation against the seniority list issued in 1956 and 1958 but that representation was rejected in 1961. No cogent ground has been shown as to why the petitioner became quiescent and took no diligent steps to obtain redress.9. Although security of service cannot be used as a shield against administrative action for lapses of a public servant, by and large one of the essential requirements of contentment and efficiency in public services is a feeling of security. It is difficult no doubt to guarantee such security in all its varied aspects, it should at least be possible to ensure that matters like ones position in the seniority list after having been settled for once should not be liable to be reopened after lapse of many years at the instance of a party who has during the intervening period chosen to keep quiet. Baking up old matters like seniority after a long time is likely to result in administrative complications and difficulties. It would, therefore, appear to be in the interest of smoothness and efficiency of service that such matters should be given a quietus after lapse of some time.
### Response:
0
### Explanation:
We find it difficult in accede to this contention. The fact that the petitioner was promoted as Assistant Commissioner prior to respondents 4 to 26 would not make him senior to respondents 4 to 26 because according to the seniority list issued on the basis of 1952 Seniority Rules the above mentioned respondents were senior to theseniority of the petitioner vis-a-vis respondent 4 to 26 has to be determined in the light of proposition No. 2 laid down by this Court in Karniks case. AIR 1970 SC 2092 (supra), according to which between an officer promoted earlier and another officer senior to him, but who was not considered in the meeting when the former was promoted, seniority in the list of Income-tax Officers will be reflected in the higher cadre. As respondents 4 to 26 were admittedly shown senior to the petitioner in the list as on October 1, 1956 prepared in accordance with 1952 Rules, their seniority qua the petitioner would be reflected in the higher cadre of Assistant Commissioners. It has not been shown to us that the names of respondents 4 to 26 were also considered in the meeting wherein a decision was taken to promote the petitioner as Assistant Commissioner, Assuming that a decision to promote respondents 4 to 26 to the posts of Assistant Commissioners was taken at the same meeting in which it was decided to promote the petitioner, in that event proposition No. 1 in Karniks case (supra) would be attracted. Even in such a contingency the seniority of respondents 4 to 26 qua the petitioner would be reflected in the list of Assistant Commissioners. In the seniority list of Assistant Commissioners issued in 1958. the petition was shown junior to respondents 4 to 26 in conformity with the Seniority list of 1956. In the matter of confirmation to the post of Assistant Commissioner six out of respondent 4 to 26 were confirmed earlier than the petitioner, while the rest of them were confirmed at the same time, as the petitioner. The impugned list of seniority circulated in 1971 merely reflected the seniority of the petitioner and respondents 4 to 26 as determined in 1956.The matter can also be looked at from another angle. The seniority of the petitioner qua respondents 4 to 26 was determined as long ago as 1956 in accordance with 1952 Rules. The said seniority was reiterated in the seniority list issued in 1958. The present writ petition was filed in 1971.The petitioner in our opinion, cannot be allowed to challenge the seniority list after lapse of so many years. The fact that a seniority list was issued in 1971 in pursuance of the decision of this Court in Karniks case AIR 1970 SC 2092 (supra) would not clothe the petitioner with a fresh right to challenge the fixation of his seniority qua respondents 4 to 26 as the seniority list of 1971 merely reflected the seniority of the petitioner qua those respondents as already determined in 1956.Satisfactory service conditions postulate that there should be no sense of uncertainty amongst public servants because of stale claims made after lapse of 14 or 15 years. It is essential that any one who feels aggrieved with an administrative decision affecting ones seniority should act with due diligence and promptitude and not sleep over the matter. No satisfactory explanation has been furnished by the petitioner before us for the inordinate delay in approaching the Court. It is no doubt true that he made a representation against the seniority list issued in 1956 and 1958 but that representation was rejected in 1961. No cogent ground has been shown as to why the petitioner became quiescent and took no diligent steps to obtain redress.9. Although security of service cannot be used as a shield against administrative action for lapses of a public servant, by and large one of the essential requirements of contentment and efficiency in public services is a feeling of security. It is difficult no doubt to guarantee such security in all its varied aspects, it should at least be possible to ensure that matters like ones position in the seniority list after having been settled for once should not be liable to be reopened after lapse of many years at the instance of a party who has during the intervening period chosen to keep quiet. Baking up old matters like seniority after a long time is likely to result in administrative complications and difficulties. It would, therefore, appear to be in the interest of smoothness and efficiency of service that such matters should be given a quietus after lapse of someview of the direct decision of this Court relating to the precise question with which we are concerned it is not necessary, in our opinion, to refer to other rules.
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Shera Singh Vs. The State Of Punjab | 1. Three accused, including the appellant Shera Singh, were tried for an offence of murder before the learned Sessions Judge, Ferozepur in Sessions Trial No. 41 of 1983. By the judgment dated 29-7-1983 the learned Sessions Judge convicted all the three accused under Section 302 read with Section 34 of the Indian Penal Code and sentenced each of them to suffer imprisonment for life and to pay a fine of Rs 500 or in default to undergo rigorous imprisonment for six months. The said three convicted accused, including the appellant, preferred appeal before the Punjab and Haryana High Court being Criminal Appeal No. 560-DB of 1983. By the impugned judgment dated 17-7-1984, the High Court acquitted the two co-accused Lachman Singh and Balbir Singh, but the conviction of the appellant for an offence of murder under Section 302 IPC has been upheld by the High Court. It may be stated that in this case there is no direct evidence about the complicity of any of the accused in committing the murder of one Sucha Singh at about 9.00 p.m. on 28-7-1982 excepting the evidence of the approve, being PW 13. As per Illustration (b) under Section 114 of the Indian Evidence Act, 1872, an accomplice is unworthy of credit, unless he is corroborated in material particulars. In the instant case, the only evidence other than the deposition of the said approver is the deposition of PW 16, the brother of the deceased who only stated that the deceased was seen by the said brother near the canal bridge of Village Midha at about 9.00 p.m. on 28-7-1982 and he had gone to the western side along with the appellant Shera Singh. As the names of other two accused were not mentioned by PW 16, the High Court gave them the benefit of doubt and acquitted them but since the name of the appellant was mentioned by PW 16 as the person with whom the deceased was last seen together, the conviction against the appellant has been upheld by the High Court. The High Court has held that as the name of the appellant was mentioned by PW 16 as the person with whom the deceased was last seen, the evidence of PW 16 gets corroboration from the deposition of the approver PW 13. 2. In our view, such finding of the High Court is not justified. Simply on the basis of evidence of PW 16 that the deceased was last seen in the company of the appellant, the appellant is not liable to be convicted for the offence of murder. The deposition of an approver is required to be corroborated in material particulars. The circumstance about which PW 16 deposed cannot be regarded such a corroboration. So, the conviction of the appellant by relying upon the evidence of PW 13 was not justified. 3. | 1[ds]In our view, such finding of the High Court is not justified. Simply on the basis of evidence of PW 16 that the deceased was last seen in the company of the appellant, the appellant is not liable to be convicted for the offence of murder. The deposition of an approver is required to be corroborated in material particulars. The circumstance about which PW 16 deposed cannot be regarded such a corroboration. So, the conviction of the appellant by relying upon the evidence of PW 13 was not justified. | 1 | 515 | 102 | ### Instruction:
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1. Three accused, including the appellant Shera Singh, were tried for an offence of murder before the learned Sessions Judge, Ferozepur in Sessions Trial No. 41 of 1983. By the judgment dated 29-7-1983 the learned Sessions Judge convicted all the three accused under Section 302 read with Section 34 of the Indian Penal Code and sentenced each of them to suffer imprisonment for life and to pay a fine of Rs 500 or in default to undergo rigorous imprisonment for six months. The said three convicted accused, including the appellant, preferred appeal before the Punjab and Haryana High Court being Criminal Appeal No. 560-DB of 1983. By the impugned judgment dated 17-7-1984, the High Court acquitted the two co-accused Lachman Singh and Balbir Singh, but the conviction of the appellant for an offence of murder under Section 302 IPC has been upheld by the High Court. It may be stated that in this case there is no direct evidence about the complicity of any of the accused in committing the murder of one Sucha Singh at about 9.00 p.m. on 28-7-1982 excepting the evidence of the approve, being PW 13. As per Illustration (b) under Section 114 of the Indian Evidence Act, 1872, an accomplice is unworthy of credit, unless he is corroborated in material particulars. In the instant case, the only evidence other than the deposition of the said approver is the deposition of PW 16, the brother of the deceased who only stated that the deceased was seen by the said brother near the canal bridge of Village Midha at about 9.00 p.m. on 28-7-1982 and he had gone to the western side along with the appellant Shera Singh. As the names of other two accused were not mentioned by PW 16, the High Court gave them the benefit of doubt and acquitted them but since the name of the appellant was mentioned by PW 16 as the person with whom the deceased was last seen together, the conviction against the appellant has been upheld by the High Court. The High Court has held that as the name of the appellant was mentioned by PW 16 as the person with whom the deceased was last seen, the evidence of PW 16 gets corroboration from the deposition of the approver PW 13. 2. In our view, such finding of the High Court is not justified. Simply on the basis of evidence of PW 16 that the deceased was last seen in the company of the appellant, the appellant is not liable to be convicted for the offence of murder. The deposition of an approver is required to be corroborated in material particulars. The circumstance about which PW 16 deposed cannot be regarded such a corroboration. So, the conviction of the appellant by relying upon the evidence of PW 13 was not justified. 3.
### Response:
1
### Explanation:
In our view, such finding of the High Court is not justified. Simply on the basis of evidence of PW 16 that the deceased was last seen in the company of the appellant, the appellant is not liable to be convicted for the offence of murder. The deposition of an approver is required to be corroborated in material particulars. The circumstance about which PW 16 deposed cannot be regarded such a corroboration. So, the conviction of the appellant by relying upon the evidence of PW 13 was not justified.
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Land Acquisition Officer, City Improvementtrust Board Vs. H. Narayanaiah Etc. Etc | that equity came to supplement and not to supplant the law. We think that, if we were to aquate a notification under section 18 with the notification under section 6 of the Act for purposes of determining the market value, which is to be awarded, we would be doing nothing short-of supplanting at least the law as found clearly laid own in section 27 of the Bangalore Act read with section 23 of the Acquisition Act. We think that the Division Bench of the Karnataka High Court had seriously misdirected itself in not giving effect to obvious meanings of the plain words used in statutes under consideration.Another contention which found favour in the Karnataka High Court was that a judgment filed by the respondents claimants m Civil Appeals Nos. 644-650 of 1974, when they appealed to the Karnataka High Court against the orders passed by a Civil Judge of Bangalore, on a reference made under the Acquisition Act, could be accepted as additional evidence under Order 41, Rule 27 C.P.C. on the ground that it. was relevant, evidence for the purpose of determining compensation of lands which were the subject matter of appeals before the High Court. The reasons given for admitting, at the appellate stage, a judgment of the High Court, which had not been filed before the Trial Court, were: firstly, that it was not available when the proceedings were pending in the Trial Court; and secondly, that lands dealt with by the judgment were adjacent to the lands the value of which needed determination, and that both sets of lands were acquired at different stages of what is known as the "layout scheme within the limits of Bhinnamangala village. The High Court overruled the objection that the judgment admitted as additional evidence was not final inasmuch as an appeal against it was pending in this Court. We find that the High Court did not consider it, for some reason, necessary to refer to the provisions of the Indian Evidence Act which regulate the admissibility of all evidence including judgments. There could be no question of res judicata in such a case. The previous judgment was not between the same parties. Furthermore, the appellant was not given any opportunity of showing that the judgment related to land which was at some distance from the lands whose value was to be determined or that its site value was, for some reason, higher. Even the time at which the value of the other land was determined was not shown to be identical. Such judgments are not judgments in rem. They are judgments in personam. The general provision of law governing admissibility of all judgments, whether they are judgments in rem or judgments in personam operating as res judicata, is section 43 of the Evidence Act which reads as follows:"43. Judgments, orders or decrees, other than those mentioned in Sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provision of this Act".16. It is apparent that section 43 enacts that judgments other than those falling under sections 40 to. 42 are irrelevant unless they fall under some other provision of the Evidence Act; and, even if they do fall under any such other provision, all that is relevant, under section 43 of the Evidence Act, is "the existence" of such judgment, order, or decree provided it "is a fact in issue, or is relevant under some other provision of this Act". An obvious instance of such other provision is a judgment falling under section 13 of the Evidence Act. The illustration to section 13 of the Evidence Act indicates the kind of facts on which the existence of judgments may be relevant.17. In Special Land Acquisition Officer, Bombay v. Lakhamsi Ghelabhai, (A.I.R. 1960 Bom. 78 .) Shelat J, held that judgments not inter partes, relating to land acquired are not admissible merely because the land dealt with n the judgment was situated near the land of which the value is to be determined. It was held there that such judgments would fall neither under section 11 nor under section 1 3 of the Evidence Act. Questions relating to value of particular pieces of land depend upon the evidence in the particular case in which those facts are proved. They embody findings or opinions relating to facts i n issue and investigated in different cases. The existence of a judgment would not prove he value of some piece of land not dealt within at all in the judgment admitted in evidence. Even slight differences in situation can, sometimes, cause considerable differences in value. We do not think it necessary to take so restrictive a view of the provisions of Sections 11 anti 13 of the Evidence Act as to exclude such judgments altogether from evidence even when good grounds are made out for their admission. In Khaja Fizuddin v. State of Andhra Pradesh, (C.A. No. 176 of 1962, decided on 10-4-1963.) a bench of three Judges of this Court held such judgments to be relevant if they relate to similarly situated properties and contain determinations of value on dates fairly proximate to the relevant date in a case.The Karnataka High Court had, however, not complied with provisions of Order 41, Rule 27 of the C.P.C. which require that an Appellate Courts should be satisfied that the additional evidence is required to enable them either to pronounce judgment or for any other substantial cause. It had recorded no reasons to show that it had considered the requirements of Rule 27, Order 41, of the C.P.C. we are of opinion that, the High Court should have recorded its reasons to show why it found the admission of such evidence to be necessary for some substantial reason. And if it found it necessary to admit it, an opportunity should have been given to the appellant to rebut any inference arising from its existence by leading other evidence.18. | 1[ds]We do not think that such an argument could be advanced at all in the face of the provisions of section 27(2) which clearly equate a notification under section 18 of the Bangalore Act with the notification under section 6 of the Acquisition Act. We know the maxim that "equity follows t he law". We have not heard of the proposition that some transcendental Equity should be so used as to defeat or amend the law as it stands. Maitland said long ago that equity came to supplement and not to supplant the law. We think that, if we were to aquate a notification under section 18 with the notification under section 6 of the Act for purposes of determining the market value, which is to be awarded, we would be doing nothing short-of supplanting at least the law as found clearly laid own in section 27 of the Bangalore Act read with section 23 of the Acquisition Act. We think that the Division Bench of the Karnataka High Court had seriously misdirected itself in not giving effect to obvious meanings of the plain words used in statutes under consideration.Another contention which found favour in the Karnataka High Court was that a judgment filed by the respondents claimants m Civil Appeals Nos. 644-650 of 1974, when they appealed to the Karnataka High Court against the orders passed by a Civil Judge of Bangalore, on a reference made under the Acquisition Act, could be accepted as additional evidence under Order 41, Rule 27 C.P.C. on the ground that it. was relevant, evidence for the purpose of determining compensation of lands which were the subject matter of appeals before the High Court. The reasons given for admitting, at the appellate stage, a judgment of the High Court, which had not been filed before the Trial Court, were: firstly, that it was not available when the proceedings were pending in the Trial Court; and secondly, that lands dealt with by the judgment were adjacent to the lands the value of which needed determination, and that both sets of lands were acquired at different stages of what is known as the "layout scheme within the limits of Bhinnamangala village. The High Court overruled the objection that the judgment admitted as additional evidence was not final inasmuch as an appeal against it was pending in this Court. We find that the High Court did not consider it, for some reason, necessary to refer to the provisions of the Indian Evidence Act which regulate the admissibility of all evidence including judgments. There could be no question of res judicata in such a case. The previous judgment was not between the same parties. Furthermore, the appellant was not given any opportunity of showing that the judgment related to land which was at some distance from the lands whose value was to be determined or that its site value was, for some reason, higher. Even the time at which the value of the other land was determined was not shown to be identical. Such judgments are not judgments in rem. They are judgments in personam. The general provision of law governing admissibility of all judgments, whether they are judgments in rem or judgments in personam operating as res judicata, is section 43 of the Evidence Act which reads as follows:"43. Judgments, orders or decrees, other than those mentioned in Sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provision of thisis apparent that section 43 enacts that judgments other than those falling under sections 40 to. 42 are irrelevant unless they fall under some other provision of the Evidence Act; and, even if they do fall under any such other provision, all that is relevant, under section 43 of the Evidence Act, is "the existence" of such judgment, order, or decree provided it "is a fact in issue, or is relevant under some other provision of this Act". An obvious instance of such other provision is a judgment falling under section 13 of the Evidence Act. The illustration to section 13 of the Evidence Act indicates the kind of facts on which the existence of judgments may beSpecial Land Acquisition Officer, Bombay v. Lakhamsi Ghelabhai, (A.I.R. 1960 Bom. 78 .) Shelat J, held that judgments not inter partes, relating to land acquired are not admissible merely because the land dealt with n the judgment was situated near the land of which the value is to be determined. It was held there that such judgments would fall neither under section 11 nor under section 1 3 of the Evidence Act. Questions relating to value of particular pieces of land depend upon the evidence in the particular case in which those facts are proved. They embody findings or opinions relating to facts i n issue and investigated in different cases. The existence of a judgment would not prove he value of some piece of land not dealt within at all in the judgment admitted in evidence. Even slight differences in situation can, sometimes, cause considerable differences in value. We do not think it necessary to take so restrictive a view of the provisions of Sections 11 anti 13 of the Evidence Act as to exclude such judgments altogether from evidence even when good grounds are made out for their admission. In Khaja Fizuddin v. State of Andhra Pradesh, (C.A. No. 176 of 1962, decided on 10-4-1963.) a bench of three Judges of this Court held such judgments to be relevant if they relate to similarly situated properties and contain determinations of value on dates fairly proximate to the relevant date in a case.The Karnataka High Court had, however, not complied with provisions of Order 41, Rule 27 of the C.P.C. which require that an Appellate Courts should be satisfied that the additional evidence is required to enable them either to pronounce judgment or for any other substantial cause. It had recorded no reasons to show that it had considered the requirements of Rule 27, Order 41, of the C.P.C. we are of opinion that, the High Court should have recorded its reasons to show why it found the admission of such evidence to be necessary for some substantial reason. And if it found it necessary to admit it, an opportunity should have been given to the appellant to rebut any inference arising from its existence by leading other evidence. | 1 | 7,080 | 1,192 | ### Instruction:
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that equity came to supplement and not to supplant the law. We think that, if we were to aquate a notification under section 18 with the notification under section 6 of the Act for purposes of determining the market value, which is to be awarded, we would be doing nothing short-of supplanting at least the law as found clearly laid own in section 27 of the Bangalore Act read with section 23 of the Acquisition Act. We think that the Division Bench of the Karnataka High Court had seriously misdirected itself in not giving effect to obvious meanings of the plain words used in statutes under consideration.Another contention which found favour in the Karnataka High Court was that a judgment filed by the respondents claimants m Civil Appeals Nos. 644-650 of 1974, when they appealed to the Karnataka High Court against the orders passed by a Civil Judge of Bangalore, on a reference made under the Acquisition Act, could be accepted as additional evidence under Order 41, Rule 27 C.P.C. on the ground that it. was relevant, evidence for the purpose of determining compensation of lands which were the subject matter of appeals before the High Court. The reasons given for admitting, at the appellate stage, a judgment of the High Court, which had not been filed before the Trial Court, were: firstly, that it was not available when the proceedings were pending in the Trial Court; and secondly, that lands dealt with by the judgment were adjacent to the lands the value of which needed determination, and that both sets of lands were acquired at different stages of what is known as the "layout scheme within the limits of Bhinnamangala village. The High Court overruled the objection that the judgment admitted as additional evidence was not final inasmuch as an appeal against it was pending in this Court. We find that the High Court did not consider it, for some reason, necessary to refer to the provisions of the Indian Evidence Act which regulate the admissibility of all evidence including judgments. There could be no question of res judicata in such a case. The previous judgment was not between the same parties. Furthermore, the appellant was not given any opportunity of showing that the judgment related to land which was at some distance from the lands whose value was to be determined or that its site value was, for some reason, higher. Even the time at which the value of the other land was determined was not shown to be identical. Such judgments are not judgments in rem. They are judgments in personam. The general provision of law governing admissibility of all judgments, whether they are judgments in rem or judgments in personam operating as res judicata, is section 43 of the Evidence Act which reads as follows:"43. Judgments, orders or decrees, other than those mentioned in Sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provision of this Act".16. It is apparent that section 43 enacts that judgments other than those falling under sections 40 to. 42 are irrelevant unless they fall under some other provision of the Evidence Act; and, even if they do fall under any such other provision, all that is relevant, under section 43 of the Evidence Act, is "the existence" of such judgment, order, or decree provided it "is a fact in issue, or is relevant under some other provision of this Act". An obvious instance of such other provision is a judgment falling under section 13 of the Evidence Act. The illustration to section 13 of the Evidence Act indicates the kind of facts on which the existence of judgments may be relevant.17. In Special Land Acquisition Officer, Bombay v. Lakhamsi Ghelabhai, (A.I.R. 1960 Bom. 78 .) Shelat J, held that judgments not inter partes, relating to land acquired are not admissible merely because the land dealt with n the judgment was situated near the land of which the value is to be determined. It was held there that such judgments would fall neither under section 11 nor under section 1 3 of the Evidence Act. Questions relating to value of particular pieces of land depend upon the evidence in the particular case in which those facts are proved. They embody findings or opinions relating to facts i n issue and investigated in different cases. The existence of a judgment would not prove he value of some piece of land not dealt within at all in the judgment admitted in evidence. Even slight differences in situation can, sometimes, cause considerable differences in value. We do not think it necessary to take so restrictive a view of the provisions of Sections 11 anti 13 of the Evidence Act as to exclude such judgments altogether from evidence even when good grounds are made out for their admission. In Khaja Fizuddin v. State of Andhra Pradesh, (C.A. No. 176 of 1962, decided on 10-4-1963.) a bench of three Judges of this Court held such judgments to be relevant if they relate to similarly situated properties and contain determinations of value on dates fairly proximate to the relevant date in a case.The Karnataka High Court had, however, not complied with provisions of Order 41, Rule 27 of the C.P.C. which require that an Appellate Courts should be satisfied that the additional evidence is required to enable them either to pronounce judgment or for any other substantial cause. It had recorded no reasons to show that it had considered the requirements of Rule 27, Order 41, of the C.P.C. we are of opinion that, the High Court should have recorded its reasons to show why it found the admission of such evidence to be necessary for some substantial reason. And if it found it necessary to admit it, an opportunity should have been given to the appellant to rebut any inference arising from its existence by leading other evidence.18.
### Response:
1
### Explanation:
stands. Maitland said long ago that equity came to supplement and not to supplant the law. We think that, if we were to aquate a notification under section 18 with the notification under section 6 of the Act for purposes of determining the market value, which is to be awarded, we would be doing nothing short-of supplanting at least the law as found clearly laid own in section 27 of the Bangalore Act read with section 23 of the Acquisition Act. We think that the Division Bench of the Karnataka High Court had seriously misdirected itself in not giving effect to obvious meanings of the plain words used in statutes under consideration.Another contention which found favour in the Karnataka High Court was that a judgment filed by the respondents claimants m Civil Appeals Nos. 644-650 of 1974, when they appealed to the Karnataka High Court against the orders passed by a Civil Judge of Bangalore, on a reference made under the Acquisition Act, could be accepted as additional evidence under Order 41, Rule 27 C.P.C. on the ground that it. was relevant, evidence for the purpose of determining compensation of lands which were the subject matter of appeals before the High Court. The reasons given for admitting, at the appellate stage, a judgment of the High Court, which had not been filed before the Trial Court, were: firstly, that it was not available when the proceedings were pending in the Trial Court; and secondly, that lands dealt with by the judgment were adjacent to the lands the value of which needed determination, and that both sets of lands were acquired at different stages of what is known as the "layout scheme within the limits of Bhinnamangala village. The High Court overruled the objection that the judgment admitted as additional evidence was not final inasmuch as an appeal against it was pending in this Court. We find that the High Court did not consider it, for some reason, necessary to refer to the provisions of the Indian Evidence Act which regulate the admissibility of all evidence including judgments. There could be no question of res judicata in such a case. The previous judgment was not between the same parties. Furthermore, the appellant was not given any opportunity of showing that the judgment related to land which was at some distance from the lands whose value was to be determined or that its site value was, for some reason, higher. Even the time at which the value of the other land was determined was not shown to be identical. Such judgments are not judgments in rem. They are judgments in personam. The general provision of law governing admissibility of all judgments, whether they are judgments in rem or judgments in personam operating as res judicata, is section 43 of the Evidence Act which reads as follows:"43. Judgments, orders or decrees, other than those mentioned in Sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provision of thisis apparent that section 43 enacts that judgments other than those falling under sections 40 to. 42 are irrelevant unless they fall under some other provision of the Evidence Act; and, even if they do fall under any such other provision, all that is relevant, under section 43 of the Evidence Act, is "the existence" of such judgment, order, or decree provided it "is a fact in issue, or is relevant under some other provision of this Act". An obvious instance of such other provision is a judgment falling under section 13 of the Evidence Act. The illustration to section 13 of the Evidence Act indicates the kind of facts on which the existence of judgments may beSpecial Land Acquisition Officer, Bombay v. Lakhamsi Ghelabhai, (A.I.R. 1960 Bom. 78 .) Shelat J, held that judgments not inter partes, relating to land acquired are not admissible merely because the land dealt with n the judgment was situated near the land of which the value is to be determined. It was held there that such judgments would fall neither under section 11 nor under section 1 3 of the Evidence Act. Questions relating to value of particular pieces of land depend upon the evidence in the particular case in which those facts are proved. They embody findings or opinions relating to facts i n issue and investigated in different cases. The existence of a judgment would not prove he value of some piece of land not dealt within at all in the judgment admitted in evidence. Even slight differences in situation can, sometimes, cause considerable differences in value. We do not think it necessary to take so restrictive a view of the provisions of Sections 11 anti 13 of the Evidence Act as to exclude such judgments altogether from evidence even when good grounds are made out for their admission. In Khaja Fizuddin v. State of Andhra Pradesh, (C.A. No. 176 of 1962, decided on 10-4-1963.) a bench of three Judges of this Court held such judgments to be relevant if they relate to similarly situated properties and contain determinations of value on dates fairly proximate to the relevant date in a case.The Karnataka High Court had, however, not complied with provisions of Order 41, Rule 27 of the C.P.C. which require that an Appellate Courts should be satisfied that the additional evidence is required to enable them either to pronounce judgment or for any other substantial cause. It had recorded no reasons to show that it had considered the requirements of Rule 27, Order 41, of the C.P.C. we are of opinion that, the High Court should have recorded its reasons to show why it found the admission of such evidence to be necessary for some substantial reason. And if it found it necessary to admit it, an opportunity should have been given to the appellant to rebut any inference arising from its existence by leading other evidence.
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M/s. Juggi Lal Kamlapat Vs. Wealth Tax Officer | which accounts are maintained by him regularly, the Wealth tax officer may, instead of determining separately the value of each asset held by the assessee in such business, determine the net value of the assets of the business as a whole having regard to the balance sheet of such business as on the valuation date and making such adjustments therein as may be prescribed. (3) Notwithstanding any thing contained in sub section (1), where the valuation of any asset is referred by the Wealth tax officer to the Valuation officer under section 16A, the value of such asset shall be estimated to be the price which, in the opinion of the Valuation Officer, it would fetch if sold in the open market on the valuation date, or, in the case of an asset being a house referred to in sub section (4), the valuation date referred to in that sub section." Rules 2A and 2B run thus:"Determination of the net value of assets of business as a whole. 2A. Where the Wealth tax officer determines under clause (a) of sub section (2) of section 7 the net value of the assets of the business as a whole having regard to the balance sheet of such business, he shall make the adjustments specified in rules 2B, 2C, 2D, 2E, 2F and 2G." "Adjustments in the value of an asset disclosed in the balance sheet.2B. (1) The value of an asset disclosed in the Balance sheet shall be taken to be- (a) in the case of an asset on which depreciation is admissible, its written down value; (b) in the case of an asset on which no depreciation is admissible, its book value; (c) in the case of closing stock, its value adopted for the purposes of assessment under the Income tax Act, Act, 1961, for the previous year relevant to the corresponding assessment year. (2) Not withstanding any thing containing in sub- rule (1) where the market value of an asset exceeds its written down value or its book value or the value adopted for purposes of assessment under the Income tax Act, 1961, as the case may be, by more than 20 per cent, the value of that asset shall, for the purposes of rule 2A, be taken to be its market value." 7. On a fair reading of the aforesaid provisions it will appear clear that the primary method of determining the value of assets for the purposes of the Act is the one indicated in sec. 7 (1), inasmuch as it provides that the value of any assets, other than cash, for the purposes of this Act shall be estimated to be its market price on the valuation date. Then comes sub-sec. (2) which provides that in the case of a business for which accounts are maintained by the assessee regularly the Wealth tax officer may instead of determining separately the valuation of each asset held by the assessee in such business, determine the net value of the business as a whole having regard to the balance sheet of such business as on the valuation date and making such adjustments therein as may be prescribed. It is true that sub sec. (2) commences with a non obstante clause, but even so, the provision itself is an enabling one conferring discretion on the Wealth tax officer to determine the net value of the assets of the business as a whole having regard to its balance sheets as on the valuation date, instead of proceeding under sub sec. (1). In other words, it is optional for the Wealth tax officer to resort to either of the methods even in the case where the net value of a business carried on by the assessee is to be determined. Thirdly, even when he proceeds und er sub sec. (2) he has to determine the net value of the business as a whole having regard to the balance-sheet of such business as on the valuation date; the phrase "having regard to the balance sheet of such business" as judicially interpret ed means that the Wealth tax officer has to take into consideration or account the balance-sheet of such business for such valuation and not that such balance sheet is conclusive or binding or decisive of the values of assets appearing therein . Fourthly, the said sub- section also says that the Wealth tax officer has to "make such adjustments therein as may be prescribed" and in this behalf Rule 2A and 2B already quoted above indicate what adjustments the Wealth-tax officer has to make while determining the net value of the business as a whole. Particularly sub-rule (2) of Rule 2B clearly provides that where the market value of an asset exceeds its written down value or book value by more than 20 per cent, the value o f that asset for the purposes of Rule 2A shall be taken to be its market value. In other words, it is clear that even where the Wealth-tax officer has resorted to sec. 7 (2) for determining the value of assets of a business as a whole the written down values or book values of specific assets as appearing in the balance-sheet are not sacrosanct and when the market value exceeds the written down value or book value by more than 20 per cent, the Wealth-tax officer has to adopt the market value of such assets for the purposes of this Act. This is apart from the position that the resort to sec. 7 (2) itself is discretionary and optional, the provision being an enabling one.Since in the instant case the Wealth tax officer was of the view that the book values of specific house properties as indicated in the returns filed by appellant No. 2 were far below their market values, he was justified in making a reference to the Valuation officers under sec. 16A of the Act and the notices issued by the Valuation officers in pursuance of such reference were also valid. | 0[ds]On a fair reading of the aforesaid provisions it will appear clear that the primary method of determining the value of assets for the purposes of the Act is the one indicated in sec. 7 (1), inasmuch as it provides that the value of any assets, other than cash, for the purposes of this Act shall be estimated to be its market price on the valuation date. Then comes sub-sec. (2) which provides that in the case of a business for which accounts are maintained by the assessee regularly the Wealth tax officer may instead of determining separately the valuation of each asset held by the assessee in such business, determine the net value of the business as a whole having regard to the balance sheet of such business as on the valuation date and making such adjustments therein as may be prescribed. It is true that sub sec. (2) commences with a non obstante clause, but even so, the provision itself is an enabling one conferring discretion on the Wealth tax officer to determine the net value of the assets of the business as a whole having regard to its balance sheets as on the valuation date, instead of proceeding under sub sec. (1). In other words, it is optional for the Wealth tax officer to resort to either of the methods even in the case where the net value of a business carried on by the assessee is to be determined. Thirdly, even when he proceeds und er sub sec. (2) he has to determine the net value of the business as a whole having regard to the balance-sheet of such business as on the valuation date; the phrase "having regard to the balance sheet of such business" as judicially interpret ed means that the Wealth tax officer has to take into consideration or account the balance-sheet of such business for such valuation and not that such balance sheet is conclusive or binding or decisive of the values of assets appearing therein . Fourthly, the said sub- section also says that the Wealth tax officer has to "make such adjustments therein as may be prescribed" and in this behalf Rule 2A and 2B already quoted above indicate what adjustments the Wealth-tax officer has to make while determining the net value of the business as a whole. Particularly sub-rule (2) of Rule 2B clearly provides that where the market value of an asset exceeds its written down value or book value by more than 20 per cent, the value o f that asset for the purposes of Rule 2A shall be taken to be its market value. In other words, it is clear that even where the Wealth-tax officer has resorted to sec. 7 (2) for determining the value of assets of a business as a whole the written down values or book values of specific assets as appearing in the balance-sheet are not sacrosanct and when the market value exceeds the written down value or book value by more than 20 per cent, the Wealth-tax officer has to adopt the market value of such assets for the purposes of this Act. This is apart from the position that the resort to sec. 7 (2) itself is discretionary and optional, the provision being an enabling one.Since in the instant case the Wealth tax officer was of the view that the book values of specific house properties as indicated in the returns filed by appellant No. 2 were far below their market values, he was justified in making a reference to the Valuation officers under sec. 16A of the Act and the notices issued by the Valuation officers in pursuance of such reference were also valid. | 0 | 5,605 | 673 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
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which accounts are maintained by him regularly, the Wealth tax officer may, instead of determining separately the value of each asset held by the assessee in such business, determine the net value of the assets of the business as a whole having regard to the balance sheet of such business as on the valuation date and making such adjustments therein as may be prescribed. (3) Notwithstanding any thing contained in sub section (1), where the valuation of any asset is referred by the Wealth tax officer to the Valuation officer under section 16A, the value of such asset shall be estimated to be the price which, in the opinion of the Valuation Officer, it would fetch if sold in the open market on the valuation date, or, in the case of an asset being a house referred to in sub section (4), the valuation date referred to in that sub section." Rules 2A and 2B run thus:"Determination of the net value of assets of business as a whole. 2A. Where the Wealth tax officer determines under clause (a) of sub section (2) of section 7 the net value of the assets of the business as a whole having regard to the balance sheet of such business, he shall make the adjustments specified in rules 2B, 2C, 2D, 2E, 2F and 2G." "Adjustments in the value of an asset disclosed in the balance sheet.2B. (1) The value of an asset disclosed in the Balance sheet shall be taken to be- (a) in the case of an asset on which depreciation is admissible, its written down value; (b) in the case of an asset on which no depreciation is admissible, its book value; (c) in the case of closing stock, its value adopted for the purposes of assessment under the Income tax Act, Act, 1961, for the previous year relevant to the corresponding assessment year. (2) Not withstanding any thing containing in sub- rule (1) where the market value of an asset exceeds its written down value or its book value or the value adopted for purposes of assessment under the Income tax Act, 1961, as the case may be, by more than 20 per cent, the value of that asset shall, for the purposes of rule 2A, be taken to be its market value." 7. On a fair reading of the aforesaid provisions it will appear clear that the primary method of determining the value of assets for the purposes of the Act is the one indicated in sec. 7 (1), inasmuch as it provides that the value of any assets, other than cash, for the purposes of this Act shall be estimated to be its market price on the valuation date. Then comes sub-sec. (2) which provides that in the case of a business for which accounts are maintained by the assessee regularly the Wealth tax officer may instead of determining separately the valuation of each asset held by the assessee in such business, determine the net value of the business as a whole having regard to the balance sheet of such business as on the valuation date and making such adjustments therein as may be prescribed. It is true that sub sec. (2) commences with a non obstante clause, but even so, the provision itself is an enabling one conferring discretion on the Wealth tax officer to determine the net value of the assets of the business as a whole having regard to its balance sheets as on the valuation date, instead of proceeding under sub sec. (1). In other words, it is optional for the Wealth tax officer to resort to either of the methods even in the case where the net value of a business carried on by the assessee is to be determined. Thirdly, even when he proceeds und er sub sec. (2) he has to determine the net value of the business as a whole having regard to the balance-sheet of such business as on the valuation date; the phrase "having regard to the balance sheet of such business" as judicially interpret ed means that the Wealth tax officer has to take into consideration or account the balance-sheet of such business for such valuation and not that such balance sheet is conclusive or binding or decisive of the values of assets appearing therein . Fourthly, the said sub- section also says that the Wealth tax officer has to "make such adjustments therein as may be prescribed" and in this behalf Rule 2A and 2B already quoted above indicate what adjustments the Wealth-tax officer has to make while determining the net value of the business as a whole. Particularly sub-rule (2) of Rule 2B clearly provides that where the market value of an asset exceeds its written down value or book value by more than 20 per cent, the value o f that asset for the purposes of Rule 2A shall be taken to be its market value. In other words, it is clear that even where the Wealth-tax officer has resorted to sec. 7 (2) for determining the value of assets of a business as a whole the written down values or book values of specific assets as appearing in the balance-sheet are not sacrosanct and when the market value exceeds the written down value or book value by more than 20 per cent, the Wealth-tax officer has to adopt the market value of such assets for the purposes of this Act. This is apart from the position that the resort to sec. 7 (2) itself is discretionary and optional, the provision being an enabling one.Since in the instant case the Wealth tax officer was of the view that the book values of specific house properties as indicated in the returns filed by appellant No. 2 were far below their market values, he was justified in making a reference to the Valuation officers under sec. 16A of the Act and the notices issued by the Valuation officers in pursuance of such reference were also valid.
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### Explanation:
On a fair reading of the aforesaid provisions it will appear clear that the primary method of determining the value of assets for the purposes of the Act is the one indicated in sec. 7 (1), inasmuch as it provides that the value of any assets, other than cash, for the purposes of this Act shall be estimated to be its market price on the valuation date. Then comes sub-sec. (2) which provides that in the case of a business for which accounts are maintained by the assessee regularly the Wealth tax officer may instead of determining separately the valuation of each asset held by the assessee in such business, determine the net value of the business as a whole having regard to the balance sheet of such business as on the valuation date and making such adjustments therein as may be prescribed. It is true that sub sec. (2) commences with a non obstante clause, but even so, the provision itself is an enabling one conferring discretion on the Wealth tax officer to determine the net value of the assets of the business as a whole having regard to its balance sheets as on the valuation date, instead of proceeding under sub sec. (1). In other words, it is optional for the Wealth tax officer to resort to either of the methods even in the case where the net value of a business carried on by the assessee is to be determined. Thirdly, even when he proceeds und er sub sec. (2) he has to determine the net value of the business as a whole having regard to the balance-sheet of such business as on the valuation date; the phrase "having regard to the balance sheet of such business" as judicially interpret ed means that the Wealth tax officer has to take into consideration or account the balance-sheet of such business for such valuation and not that such balance sheet is conclusive or binding or decisive of the values of assets appearing therein . Fourthly, the said sub- section also says that the Wealth tax officer has to "make such adjustments therein as may be prescribed" and in this behalf Rule 2A and 2B already quoted above indicate what adjustments the Wealth-tax officer has to make while determining the net value of the business as a whole. Particularly sub-rule (2) of Rule 2B clearly provides that where the market value of an asset exceeds its written down value or book value by more than 20 per cent, the value o f that asset for the purposes of Rule 2A shall be taken to be its market value. In other words, it is clear that even where the Wealth-tax officer has resorted to sec. 7 (2) for determining the value of assets of a business as a whole the written down values or book values of specific assets as appearing in the balance-sheet are not sacrosanct and when the market value exceeds the written down value or book value by more than 20 per cent, the Wealth-tax officer has to adopt the market value of such assets for the purposes of this Act. This is apart from the position that the resort to sec. 7 (2) itself is discretionary and optional, the provision being an enabling one.Since in the instant case the Wealth tax officer was of the view that the book values of specific house properties as indicated in the returns filed by appellant No. 2 were far below their market values, he was justified in making a reference to the Valuation officers under sec. 16A of the Act and the notices issued by the Valuation officers in pursuance of such reference were also valid.
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V.K. Javali (Dr.) Vs. State Of Mysore & Anr | that general permission. Thus the first ground is entirely without substance; to describe the speech delivered by the petitioner as a speech on controversial matters does not alter the true character of the speech. It is a speech delivered on an occasion of prize distribution on a subject which is purely educational and it expressed opinions which are generally accepted; but the basis of the ground is that the previous approval should have been obtained and that has no substance because a general permission had been given to the petitioner to deliver speeches on educational matters. 21. The second ground is that the petitioner expressed his views on the language controversy. Now this ground must obviously be read in the light of the requirement of R. 26 (a). Rule 26 (a) can be invoked when the Government servant is shown to have made a statement of fact or opinion which may embarrass the relations between the Government and the people of India or any sections of the people. Can it be seriously suggested that the speech in question could have had any such consequence? In deciding this question we must remember that the speech was delivered on July 5, 1953 in Dharwar which was then a part of the erstwhile State of Bombay in which three principal languages were spoken by the citizens, Marathi, Gujarati and Kannada. The affidavit filed by respondent 1 has made no material averment or allegation which would even remotely suggest that the speech in question could possibly have led to any such consequence. The said affidavit is very unsatisfactory and it gives us no assistance at all to decide the question in favour of respondent 1. Therefore, on the materials produced before us we cannot escape, the conclusion that the broad statement in the ground that the petitioner expressed his views on the language controversy cannot rationally or reasonably bring his case within R. 26 (a). 22. That takes us to the last and the third ground set out in the notice. According to this ground the views expressed by the petitioner were inconsistent with the policy statement issued by the Government of Bombay in a Press Note on September 20, 1951. On this point again the material produced by respondent 1 consists merely an affidavit filed by it. The Press Note itself has not been produced before us, nor has any relevant statement been made to show how, when and by whom the policy in question was determined. Prima facie the question about the medium of instruction at the Post S. S. C. Examination stage is within the jurisdiction of the different Universities. The Post S. S. C. stage is normally the stage of Collegiate education and in the matter of Collegiate education all educational matters are as they should be, generally left to the autonomy of the respective Universities. It is not even alleged in the affidavit made by respondent 1 that the University having jurisdiction in the region where the speech was delivered had come to any such conclusion in the matter of the medium of College education. Therefore, apart from the fact that material and satisfactory evidence about the alleged decision of the Government had not been produced before us it appears to us prima facie very doubtful whether the Government could have come to any such conclusion in the matter of the medium of College education. Under such circumstances it was clearly the duty of respondent 1 to have produced before the Court more satisfactory evidence in support of its case. 23. Respondent 1 has no doubt made a bare statement in its affidavit that any expression of opinion by a Government official on the language controversy directly tends to embarrass the relations between the Government and the people of India or the different sections of the people. It is significant that the affidavit uses the verb tends and it does not even purport to say that it tended to lead to any such consequence in 1953 when the speech was delivered. Indeed the affidavit of respondent 1 does not refer to the relevant facts as they existed in 1953 in the region where the speech was delivered, and so a bare statement that R. 26 (a) was satisfied can hardly be regarded as sufficient or satisfactory for the purpose of dealing with the present case. In our opinion, therefore, having regard to the time and place at which the speech was delivered and the surrounding circumstances, and having regard to the material produced before us, it is impossible to escape the conclusion that the grounds set out in support of the impugned order passed against the petitioner cannot by any stretch of imagination be said to take his case within R. 26 (a).It is significant that the case against the petitioner has changed from stage to stage in that disagreeing with the conclusion of the Enquiry Officer the respondent was driven to set out three grounds in support of the impugned order of punishment none of which can rationally or reasonably take his case within the mischief of R. 26 (a).Besides, it is obvious that even if the expression public order used in Art. 19 (2) is very liberally construed it would be difficult to hold on the material available on the record that the impugned speech could rationally be said to lead to the disturbance of public order as envisaged by Art. 19(2) at the time when it was delivered. Mr. Gopalakrishnan has no doubt sought to place his case under the requirement of public order provided for by Article 19 (2); but we have no hesitation in holding that the impugned order cannot be rationally justified on that ground and must be said to fall wholly outside Art. 19 (2). Our conclusion, therefore, is that the impugned order of punishment passed against the petitioner is not supported or justified by R. 26 (a) and is even otherwise outside Art. 19 (2) and as such unconstitutional and invalid. | 1[ds]14. It appears that apparently on the authority of this Rule instruction had been issued by which Government servants in educational department were required to obtain previous approval of the Director of Education to the text of the speech proposed to be delivered by them.For the purpose of the present petition we ought, however, to add that neither this instruction nor the orders issued in Circular No. P. and S. D. No. 1581/34, dated September 27, 1950, which are alleged to have been contravened have been produced in the present proceedings19. We have already noticed that the enquiry resulted in the finding recorded by the Enquiry Officer in favour of the petitioner. It is true that the Government of Bombay was entitled to take a different view but it is not wholly irrelevant to remember that the Collector of Dharwar who held the enquiry was satisfied that there was no substance in the charges framed against the petitioner20. At this stage it would be material to recall the grounds on which the impugned order of punishment was passed. The first ground is that the speech was delivered by the petitioner without obtaining the previous sanction of the Director of Education in advance in spite of the warning issued to him in August 1952. The requirement that a previous approval of the speech should be obtained by the petitioner from the Director of Education is characterised by Mr. Iyengar as a purely executive order without any legal validity, and in support of his case Mr. Iyengar has relied upon the decision of the Madras High Court in Ramakrishnaiah v. President, District Board, Nellore, AIR 1952 Mad 253 and Krishna Chandra Chatterjee v. Chief Superintendent, Central Telegraph Office, Calcutta, AIR 1955 Cal 75. We, however, do not propose to consider even this point because we will assume that the order in question is valid; but it is essential to remember that the petitioner has specifically averred that he had obtained general permission to make speeches on educational matters and the warning issued to him in August 1952 in not shown to have affected that general permission. Thus the first ground is entirely without substance; to describe the speech delivered by the petitioner as a speech on controversial matters does not alter the true character of the speech. It is a speech delivered on an occasion of prize distribution on a subject which is purely educational and it expressed opinions which are generally accepted; but the basis of the ground is that the previous approval should have been obtained and that has no substance because a general permission had been given to the petitioner to deliver speeches on educational matters21. The second ground is that the petitioner expressed his views on the language controversy. Now this ground must obviously be read in the light of the requirement of R. 26 (a). Rule 26 (a) can be invoked when the Government servant is shown to have made a statement of fact or opinion which may embarrass the relations between the Government and the people of India or any sections of the people. Can it be seriously suggested that the speech in question could have had any such consequence? In deciding this question we must remember that the speech was delivered on July 5, 1953 in Dharwar which was then a part of the erstwhile State of Bombay in which three principal languages were spoken by the citizens, Marathi, Gujarati and Kannada. The affidavit filed by respondent 1 has made no material averment or allegation which would even remotely suggest that the speech in question could possibly have led to any such consequence. The said affidavit is very unsatisfactory and it gives us no assistance at all to decide the question in favour of respondent 1. Therefore, on the materials produced before us we cannot escape, the conclusion that the broad statement in the ground that the petitioner expressed his views on the language controversy cannot rationally or reasonably bring his case within R. 26 (a)22. That takes us to the last and the third ground set out in the notice. According to this ground the views expressed by the petitioner were inconsistent with the policy statement issued by the Government of Bombay in a Press Note on September 20, 1951. On this point again the material produced by respondent 1 consists merely an affidavit filed by it. The Press Note itself has not been produced before us, nor has any relevant statement been made to show how, when and by whom the policy in question was determined. Prima facie the question about the medium of instruction at the Post S. S. C. Examination stage is within the jurisdiction of the different Universities. The Post S. S. C. stage is normally the stage of Collegiate education and in the matter of Collegiate education all educational matters are as they should be, generally left to the autonomy of the respective Universities. It is not even alleged in the affidavit made by respondent 1 that the University having jurisdiction in the region where the speech was delivered had come to any such conclusion in the matter of the medium of College education. Therefore, apart from the fact that material and satisfactory evidence about the alleged decision of the Government had not been produced before us it appears to us prima facie very doubtful whether the Government could have come to any such conclusion in the matter of the medium of College education. Under such circumstances it was clearly the duty of respondent 1 to have produced before the Court more satisfactory evidence in support of its case23. Respondent 1 has no doubt made a bare statement in its affidavit that any expression of opinion by a Government official on the language controversy directly tends to embarrass the relations between the Government and the people of India or the different sections of the people. It is significant that the affidavit uses the verb tends and it does not even purport to say that it tended to lead to any such consequence in 1953 when the speech was delivered. Indeed the affidavit of respondent 1 does not refer to the relevant facts as they existed in 1953 in the region where the speech was delivered, and so a bare statement that R. 26 (a) was satisfied can hardly be regarded as sufficient or satisfactory for the purpose of dealing with the present case. In our opinion, therefore, having regard to the time and place at which the speech was delivered and the surrounding circumstances, and having regard to the material produced before us, it is impossible to escape the conclusion that the grounds set out in support of the impugned order passed against the petitioner cannot by any stretch of imagination be said to take his case within R. 26 (a).It is significant that the case against the petitioner has changed from stage to stage in that disagreeing with the conclusion of the Enquiry Officer the respondent was driven to set out three grounds in support of the impugned order of punishment none of which can rationally or reasonably take his case within the mischief of R. 26 (a).Besides, it is obvious that even if the expression public order used in Art. 19 (2) is very liberally construed it would be difficult to hold on the material available on the record that the impugned speech could rationally be said to lead to the disturbance of public order as envisaged by Art. 19(2) at the time when it was delivered. Mr. Gopalakrishnan has no doubt sought to place his case under the requirement of public order provided for by Article 19 (2); but we have no hesitation in holding that the impugned order cannot be rationally justified on that ground and must be said to fall wholly outside Art. 19 (2). Our conclusion, therefore, is that the impugned order of punishment passed against the petitioner is not supported or justified by R. 26 (a) and is even otherwise outside Art. 19 (2) and as such unconstitutional and invalid. | 1 | 5,023 | 1,459 | ### Instruction:
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that general permission. Thus the first ground is entirely without substance; to describe the speech delivered by the petitioner as a speech on controversial matters does not alter the true character of the speech. It is a speech delivered on an occasion of prize distribution on a subject which is purely educational and it expressed opinions which are generally accepted; but the basis of the ground is that the previous approval should have been obtained and that has no substance because a general permission had been given to the petitioner to deliver speeches on educational matters. 21. The second ground is that the petitioner expressed his views on the language controversy. Now this ground must obviously be read in the light of the requirement of R. 26 (a). Rule 26 (a) can be invoked when the Government servant is shown to have made a statement of fact or opinion which may embarrass the relations between the Government and the people of India or any sections of the people. Can it be seriously suggested that the speech in question could have had any such consequence? In deciding this question we must remember that the speech was delivered on July 5, 1953 in Dharwar which was then a part of the erstwhile State of Bombay in which three principal languages were spoken by the citizens, Marathi, Gujarati and Kannada. The affidavit filed by respondent 1 has made no material averment or allegation which would even remotely suggest that the speech in question could possibly have led to any such consequence. The said affidavit is very unsatisfactory and it gives us no assistance at all to decide the question in favour of respondent 1. Therefore, on the materials produced before us we cannot escape, the conclusion that the broad statement in the ground that the petitioner expressed his views on the language controversy cannot rationally or reasonably bring his case within R. 26 (a). 22. That takes us to the last and the third ground set out in the notice. According to this ground the views expressed by the petitioner were inconsistent with the policy statement issued by the Government of Bombay in a Press Note on September 20, 1951. On this point again the material produced by respondent 1 consists merely an affidavit filed by it. The Press Note itself has not been produced before us, nor has any relevant statement been made to show how, when and by whom the policy in question was determined. Prima facie the question about the medium of instruction at the Post S. S. C. Examination stage is within the jurisdiction of the different Universities. The Post S. S. C. stage is normally the stage of Collegiate education and in the matter of Collegiate education all educational matters are as they should be, generally left to the autonomy of the respective Universities. It is not even alleged in the affidavit made by respondent 1 that the University having jurisdiction in the region where the speech was delivered had come to any such conclusion in the matter of the medium of College education. Therefore, apart from the fact that material and satisfactory evidence about the alleged decision of the Government had not been produced before us it appears to us prima facie very doubtful whether the Government could have come to any such conclusion in the matter of the medium of College education. Under such circumstances it was clearly the duty of respondent 1 to have produced before the Court more satisfactory evidence in support of its case. 23. Respondent 1 has no doubt made a bare statement in its affidavit that any expression of opinion by a Government official on the language controversy directly tends to embarrass the relations between the Government and the people of India or the different sections of the people. It is significant that the affidavit uses the verb tends and it does not even purport to say that it tended to lead to any such consequence in 1953 when the speech was delivered. Indeed the affidavit of respondent 1 does not refer to the relevant facts as they existed in 1953 in the region where the speech was delivered, and so a bare statement that R. 26 (a) was satisfied can hardly be regarded as sufficient or satisfactory for the purpose of dealing with the present case. In our opinion, therefore, having regard to the time and place at which the speech was delivered and the surrounding circumstances, and having regard to the material produced before us, it is impossible to escape the conclusion that the grounds set out in support of the impugned order passed against the petitioner cannot by any stretch of imagination be said to take his case within R. 26 (a).It is significant that the case against the petitioner has changed from stage to stage in that disagreeing with the conclusion of the Enquiry Officer the respondent was driven to set out three grounds in support of the impugned order of punishment none of which can rationally or reasonably take his case within the mischief of R. 26 (a).Besides, it is obvious that even if the expression public order used in Art. 19 (2) is very liberally construed it would be difficult to hold on the material available on the record that the impugned speech could rationally be said to lead to the disturbance of public order as envisaged by Art. 19(2) at the time when it was delivered. Mr. Gopalakrishnan has no doubt sought to place his case under the requirement of public order provided for by Article 19 (2); but we have no hesitation in holding that the impugned order cannot be rationally justified on that ground and must be said to fall wholly outside Art. 19 (2). Our conclusion, therefore, is that the impugned order of punishment passed against the petitioner is not supported or justified by R. 26 (a) and is even otherwise outside Art. 19 (2) and as such unconstitutional and invalid.
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### Explanation:
have affected that general permission. Thus the first ground is entirely without substance; to describe the speech delivered by the petitioner as a speech on controversial matters does not alter the true character of the speech. It is a speech delivered on an occasion of prize distribution on a subject which is purely educational and it expressed opinions which are generally accepted; but the basis of the ground is that the previous approval should have been obtained and that has no substance because a general permission had been given to the petitioner to deliver speeches on educational matters21. The second ground is that the petitioner expressed his views on the language controversy. Now this ground must obviously be read in the light of the requirement of R. 26 (a). Rule 26 (a) can be invoked when the Government servant is shown to have made a statement of fact or opinion which may embarrass the relations between the Government and the people of India or any sections of the people. Can it be seriously suggested that the speech in question could have had any such consequence? In deciding this question we must remember that the speech was delivered on July 5, 1953 in Dharwar which was then a part of the erstwhile State of Bombay in which three principal languages were spoken by the citizens, Marathi, Gujarati and Kannada. The affidavit filed by respondent 1 has made no material averment or allegation which would even remotely suggest that the speech in question could possibly have led to any such consequence. The said affidavit is very unsatisfactory and it gives us no assistance at all to decide the question in favour of respondent 1. Therefore, on the materials produced before us we cannot escape, the conclusion that the broad statement in the ground that the petitioner expressed his views on the language controversy cannot rationally or reasonably bring his case within R. 26 (a)22. That takes us to the last and the third ground set out in the notice. According to this ground the views expressed by the petitioner were inconsistent with the policy statement issued by the Government of Bombay in a Press Note on September 20, 1951. On this point again the material produced by respondent 1 consists merely an affidavit filed by it. The Press Note itself has not been produced before us, nor has any relevant statement been made to show how, when and by whom the policy in question was determined. Prima facie the question about the medium of instruction at the Post S. S. C. Examination stage is within the jurisdiction of the different Universities. The Post S. S. C. stage is normally the stage of Collegiate education and in the matter of Collegiate education all educational matters are as they should be, generally left to the autonomy of the respective Universities. It is not even alleged in the affidavit made by respondent 1 that the University having jurisdiction in the region where the speech was delivered had come to any such conclusion in the matter of the medium of College education. Therefore, apart from the fact that material and satisfactory evidence about the alleged decision of the Government had not been produced before us it appears to us prima facie very doubtful whether the Government could have come to any such conclusion in the matter of the medium of College education. Under such circumstances it was clearly the duty of respondent 1 to have produced before the Court more satisfactory evidence in support of its case23. Respondent 1 has no doubt made a bare statement in its affidavit that any expression of opinion by a Government official on the language controversy directly tends to embarrass the relations between the Government and the people of India or the different sections of the people. It is significant that the affidavit uses the verb tends and it does not even purport to say that it tended to lead to any such consequence in 1953 when the speech was delivered. Indeed the affidavit of respondent 1 does not refer to the relevant facts as they existed in 1953 in the region where the speech was delivered, and so a bare statement that R. 26 (a) was satisfied can hardly be regarded as sufficient or satisfactory for the purpose of dealing with the present case. In our opinion, therefore, having regard to the time and place at which the speech was delivered and the surrounding circumstances, and having regard to the material produced before us, it is impossible to escape the conclusion that the grounds set out in support of the impugned order passed against the petitioner cannot by any stretch of imagination be said to take his case within R. 26 (a).It is significant that the case against the petitioner has changed from stage to stage in that disagreeing with the conclusion of the Enquiry Officer the respondent was driven to set out three grounds in support of the impugned order of punishment none of which can rationally or reasonably take his case within the mischief of R. 26 (a).Besides, it is obvious that even if the expression public order used in Art. 19 (2) is very liberally construed it would be difficult to hold on the material available on the record that the impugned speech could rationally be said to lead to the disturbance of public order as envisaged by Art. 19(2) at the time when it was delivered. Mr. Gopalakrishnan has no doubt sought to place his case under the requirement of public order provided for by Article 19 (2); but we have no hesitation in holding that the impugned order cannot be rationally justified on that ground and must be said to fall wholly outside Art. 19 (2). Our conclusion, therefore, is that the impugned order of punishment passed against the petitioner is not supported or justified by R. 26 (a) and is even otherwise outside Art. 19 (2) and as such unconstitutional and invalid.
|
Katyani Dayal and Others Vs. Union of India and Others | have stated earlier, the appointments of some of the petitioners and some of the respondents were made in violation of the rules which were in force at the relevant time. It is in respect of that class of persons that the Delhi High Court was driven to hold that they must be deemed to have been appointed to ex-cadre posts..... But, the fact remains that persons who were appointed contrary to the rules but to ex-cadre posts were taken initially for purposes of certain projects to which we have already referred. Their precarious tenure was continued from time to time but that will not furnish justification for treating them on the same footing as others whose appointments were made strictly in accordance with the rules and who were appointed to posts borne on the cadre of the Central Engineering Service. A division of these two classes of officers into separate categories will remove possible injustice to those who were appointed to cadre posts in that their promotional opportunities will not be blocked or hindered by ex-cadre officers w ho were recruited on a large scale to meet an urgent necessity. Such a classification will also minimise the injustice which would otherwise have been caused to those who were appointed to ex-cadre posts". 32. We have referred, without comment, to a few earlier decisions of this Court and quoted the observations of learned Judges therein. These decisions and the observations extracted therefrom illustrate and emphasise that there are and there can be no absolutes when we consider claims to justice on complaints of inequality. The Marxian ultimate of a classless society, however laudable that may be, is evidently not what is sought to be achieved by Articles 14 and 16 of the Constitution. The goal is a limited one. It is equality among comparables. A necessary, but not necessarily cynical, implication of equality among comparable is the permissibility of reasonable classification, having nexus with the object to be achieved. So, it was said that if two services started and continued dissimilarly, though they apparently discharged similar duties, they were not comparable services so as to furnish a basis for the claim to equality (State of Punjab v. Joginder Singh) (supra). Bu t, if in the same service there were two sources of recruitment to the same posts, a classification based solely on source of recruitment was not permissible (Roshan Lal Tandon v. Union of India, and Mervyn Coutinda &Ors. v. Collector of Customs, Bombay &Ors.) (supra). This was also the principle of the decision in S. B. Patwardhan &Ors. etc. etc. v. State of Maharashtra &Ors. (supra). Even so, Chandrachud, J., Krishna Iyer, J., and Bhagwati, J., had to recognise, even if reluctantly, that even among the members of the same service, a classification based otherwise than on mere source of recruitment such as educational qualification was at times permissible. But necessary words of caution against making minute and micro-cosmic classifications were uttered. (State of Jammu &Kashmir v. Trilokinath Khosa, (Supra) and Mohammad Shujat Ali &Ors. etc. v. Union of India &Ors. etc. (supra). Chandrachud, J., however drew the line when among members of the same service a classification was sought to be made between those who had been recruited on the basis of results of a competitive examination and those who had come in by the method of interview. But, here again he felt constrained to say that those who were appointed to ex-cadre posts outside the rules and whose tenure was therefore precarious could not claim to be treated on the same footing as those who were appointed strictly in accordance with the rules and to posts borne on the cadre of the service (H. S. Verma &Anr. v. Secretary, Ministry of Shipping &Transport &Ors.) (supra).If we now look at the facts of the case before us, we find that the service comprising the Temporary Assistant Officers and the Indian Railway Service of Engineers Class I started separately and never became one. The objects of their recruitment were different as explained earlier, the methods of recruitment were dissimilar and the appointing authority was not the same. The training that was imparted was also unlike. The very tenure of the Temporary Assistant Officers was precarious and their immediate aspiration was only to be absorbed into the Indian Railway Service of Engineers class I. These distinctive features marked out the Temporary Assistant Officers as a Class-apart from the Indian Railway Service of Engineers Class I and therefore there was no question of entitlement of equal rights with the latter. Of course, once they were absorbed into the Indian Railway Service of Engineers they would be entitled not to be treated differently thereafter. Their seniority would ordinarily be reckoned from the date of their absorption into the Indian Railway Service of Engineers, as promised in their letters of appointment. No doubt these officers merited something more than the long wait at the portals of the Indian Railway Service of Engineers. The Railway Board however, appears to have tried to make the long wait a little less tedious by giving them weightage of half of their length of service as Temporary Assistant Officers, subject to a maximum of five years. We wish to say nothing about the validity of such weightage as we understand it is in question elsewhere. 33. Though we are denying the claim of the petitioners to equality because of the history, origin, and structure of the Services and the existing legal position in relation thereto, we do not wish to be understood as saying that there is any thing doctrinaire in the principles of equal pay for equal work and equal status for equal pay and equal work. They are not goals to be scoffed at. It may be that in the present societal context the goals appear to be distant. But they are goals worthy of attainment and let us hope, with no overtones of cynicism, that these goals will be achieved in the not too distant future. | 1[ds]17. The inevitable sequitur from these Constitutional provisions is that the President, acting directly or through Officers subordinate to him, is free to constitute a service (with as many cadres as he chooses), to create posts without constituting a service or to create posts outside (the cadres of) the constituted service. The President (or the person directed by him) may, or, again if he so chooses he may not, make rules regulating the recruitment and conditions of service of persons appointed to such service or posts. He is also free to make or not to make appointments to such services or posts. Nor is it obligatory for him to make rules of recruitment etc. before a service may be constituted or a post created or filled. But if there is an Act of Parliament or a rule under the proviso to Art. 309 on the matter, the executive power, under Articles 53 and 73, may not be exercised in a manner in consistent with or contrary to such Act or rule (vide B. N. Nagarajan &Ors. v. State of Mysore &Ors., State of Kerala v. M. K. Krishan Nair &Ors., etc. etc.17a. So, the previous existence of the Indian Railway Service of Engineers and the rules made for recruitment to that service do not bar the constitution of another service or the creation of posts outside the cadres of the Indian Railway Service of Engineers. That, precisely, was what was done in 1956 and subsequent years upto 1965. The administrative expedience and exigence of the time required the creation of temporary posts outside the cadres of the Indian Railway Service of Engineers. The circumstances and the reasons necessitating the creation of these posts of Temporary Engineers were fully set out in the letters of indent addressed by the Railway Board to the Union Public Service Commission, the details of which have already been mentioned by us in paragraph 4 supra. The posts so created were not to be confused with the posts in the cadre of the Indian Railway Service of Engineers Class I notwithstanding that the scale of pay and the duties were to be the same. That the posts were not to be treated as in Class I or in Class II of the Indian Railway Service of Engineers was expressly mentioned and clarified in the requisitions made by the Railway Board to the Union Public Service Commission and the correspondence which ensued between the Railway Board and the Union Public Service Commission. It was also made clear in the letters of appointment and the agreements required to be executed by the persons appointed. Though to start with there was no Presidential sanction for the creation of the posts of Temporary Assistant Officers in the various Departments of Indian Railways, which were neither in Class I nor in Class II but merely in gazetted service, the matter was soon rectified by the grant of Presidential sanction for the posts in November 1956 and by the President further specifying the Railway Board as the authority competent to make appointments of such temporary Ass istant Officers. This is apparent from the letter No.. A) dated November 22, 1956 and letter No. 5. A dated December 12, 1956 to which we have referred in paragraph 8 supraIf Temporary Assistant Officers were to be a source of recruitment to the Indian Railway Service of Engineers Class I, we do not see how any temporary Assistant Officer could possibly be under any misapprehension that he was appointed to the Indian Railway Service of Engineers Class I or could claim that he was appointed to such service19. It is not possible to accept the submission that they must be considered to have been appointed under r. 130(d) o f the Indian Railway Establishment Code which provides for occasional admission of other qualified persons on the recommendation of the Union Public Service Commission merely because they were selected for appointment by the Union Public Service Commission, their scale of pay was the same as that of the Class I Junior Scale Officers of the Indian Railway Service of Engineers and their duties were the same. There were special reasons for recruiting Temporary Assistant Officers outside the cadres of the Indian Railway Service of Engineers and when it was admittedly and avowedly so done, and when right through such officers were merely treated as a source of recruitment to the Indian Railway Service of Engineers, it would not be permissible for us to hold that the Temporary Assistant Officers were recruited to the cadre of the Indian Railway Service of Engineers Class IWe do not think that there is any substance in these submissions. It is no doubt true that a ca dre may consist of permanent as well as temporary posts and there may be permanent vacancies in permanent as well as temporary posts borne on the cadre. But it does not follow that appointments stated to be made to posts outside the vary service and therefore necessarily outside the cadre must be considered to be made to temporary posts borne on the cadre merely because the posts were likely to continue indefinitely and did so continue. We do not see how we can ignore the very purpose of scheme of recruitment of Temporary Assistant Officer which was to recruit Temporary Assistant Officers outside the existing Service and cadres to meet the anticipated requirements of certain special objects. Even in the requisition made in the prescribed form by the Railway Board to the Union Public Service Commission it was mentioned "the posts will be sanctioned shortly in connection with a number of projects". It was not mentioned that the posts were already borne on the cadre of the Indian Railway Service of Engineers. Our attention was invited to the Annual Administrative Reports where, it was said, no distinction was made between classified and unclassified service. We do not think that these reports are of the slightest help. The reports merely refer to appointments, temporary as well as permanent, made in the gazetted service by direct recruitment. Gazetted Railway services must include both the Indian Railway Service of Engineers and t he Gazetted Railway Service constituted by the temporary Assistant Officers. Therefore, by merely taking into account the number of Temporary Assistant Officers for the purpose of calculating the total number of persons appointed to Gazetted Railway Service it cannot conceivably be said that Temporary Assistant Officers were appointed to cadre posts in the Indian Railway Service of Engineers. Our attention was also invited to the classified lists of Officers published by the Railway Board. This list takes the case of the petitioners no further. There is nothing in the list to indicate that persons who were appointed as Temporary Assistant Officers were appointed to posts borne on the cadre of Indian Railway Service of Engineers. On the other hand under the column "Date of appointment to Class" no entry is made against the names of any of the Temporary Assistant Officers who had not yet been absorbed into the Indian Railway Service of Engineers. We were also referred to the reports of the Administrative Reforms Commission where it is said "In the Railways there is a sizeable number of unclassified posts equivalent to Junior Class I and only a small number of them are taken each year into the regular service". This statement does not support the case of the petitioners that they were appointed to posts borne on the cadre of Indian Railway Service of Engineers. Far from it. Passages from the reports of the Central Pay Commission were also read out to us to emphasize that the posts have continued over the years indefinitely. If posts were initially created and sanctioned for short periods, we do not see how the subsequent continuance of the posts indefinitely would make persons appointed to the posts members of the regular service, namely, the Indian Railway Service of Engineers Class IThe note was neither declaratory nor explanatory an d was of no affect whatever. We think that the argument regarding the status and the effect of the note is of no real relevance. The note merely states an existing fact known to all concerned. It was known that posts of Temporary Assistant Officers in gazetted railway service who were not to be classified either as Class I or as Class II had been sanctioned by the President who had designated the Railway Board as the authority competent to make appointments to those posts. The note below rule 106 merely stated this fact. With or without the note, the Temporary Assistant Officers would still not be classified either as Class I or Class II. Their classification outside Class I and Class II was not dependant on the note but on the Presidential action in regard to the creation of the postsWhat was always well known to the Temporary Assistant Officers and the Railway Board and what was the inevitable result of the Presidential sanction for the creation of posts which were not to be classified either as Class I or Class II, was made explicit in the Indian Railway Establishment code also by the introduction of these amendments. This became necessary because in the Writ Petition filed by Katyani Dayal, the Allahabad High Court, while appearing to hold that Temporary Assistant Officers belonged neither to Class I nor to Class II service, held that they came within the then existing definition of Assistant Officer so as to entitle them for promotion under r. 133 of the Indian Railway Establishment Code. We are afraid it was the use of the expression Temporary Assistant Officer that ha s led to considerable confusion. The expression Temporary Assistant Officer was coined to describe the new post created for the first time in 1955. The expression was not used to signify officers temporarily holding the posts of Assistant Officers in the several established Railway Services. For instance a Class II Assistant Engineer who is temporarily promoted to hold the post of an Assistant Engineer Class I may be described as a Temporary Assistant Officer but he certainly would not be a Temporary Assistant Officer appointed to any of the posts specially created by the President which were neither in Class I nor in Class II. The word Temporary in the expression Temporary Assistant Officer was not used to qualify the words Assistant Officer. The whole of the expression was intended to describe the particular post, which was neither in Class I nor Class II, which was created in 1955. There would not have been any confusion and it would have been much happier if instead of the expression Temporary Assistant Officer some other expression such as Special Assistant Officer or Special Assistant Engineer had been chosen. We are of the view that the Allahabad High Court was not justified in looking at the amended definition of Assistant Officer in isolation and concluding that the expression Assistant Officer included Temporary Assistant Officer because Temporary Assistant Officer was also a gazetted Railway servant who drew the junior scale of pay. The definition of Assistant Officer was not to be read in isolation in that manner. It should have been read conjunctively with Rules 105, 106 and 108. A reference to Rule 105 would show that for the purposes of the rules in the Indian Railway Establishment Code, Railway services were to be classified into Class I, Class II, Class III, Class IV and Workshop staff. Rule 106 specified the appointment and categories falling under the services mentioned in Rule 105. Rule 108 required the Railway Board to fix the strength of the Railway Services Class I and Class II. There could therefore, be no question of an officer not falling within the class, category or cadre specified in rules 105 , 106 and 108 claiming to be an Assistant Officer within the meaning of that expression. A person recruited to the post of Temporary Assistant Officer not classified as Class I or Class II Officer could not claim to belong to the Class, category or cadre specified in Rules 105, 106 and 108 and was, therefore, not an Assistant Officer within the meaning of that expression even before the 1975 amendmentThere was so much identity on all vital and important matters that the classification of Temporary Assistant Officers outside the Indian Rail way Service of Engineers Class I was arbitrary. It led to all manner of discrimination in the matter of advancement in service, seniority, promotion etc. The unfairness of it all was sought to be graphically demonstrated by pointing out how after twenty years of service Temporary Assistant Officers continued to be Temporary Assistant Officers while Class I officers recruited much later were placed much higher than them in order of seniority and had risen to much higher positions in the service. Another limb of the argument on the question of discrimination was that all Assistant Officers whether they were permanent Assistant Officers or Temporary Assistant Officers constituted a single cadre and it was not permissible to further classify them on the basis of the manner of their recruitment, namely, by competitive examination or by selection by the Union Public Service Commission. Part of this submission has already been met b y us and we have shown how Temporary Assistant Officers are not Assistant Officers within the meaning of that expression in the Indian Railway Establishment Code24. It is true that the minimum educational qualification for the post of Temporary Assistant Officer was the same as that for recruitment to the Indian Railway Service of Engineers Class I. It is true that the scale of pay is the same, and the functions and duties are the same. It is also true that except to the ex tent provided, the Temporary Assistant Officers were also subject to the provisions of the Indian Railway Establishment Code and the rules made thereunder. But, there are certain fundamental differences between two classes which cannot be ignored and which demand attention. To begin with, the object of recruitment to the Indian Railway Service of Engineers is to provide Officers of the highest quality to meet the requirements of all posts in the service including Senior Administrative posts. Rule 109(2)(c) of the Indian Railway Establishment Code, extracted earlier expressly provides that the number of posts to be allotted to the Assistant Officers grade shall be calculated with reference to the total number of administrative and District Officers posts, and shall be so fixed as to allow of a continuous flow of promotion from the Assistant Officers grade to the higher grades after a given period of service. For this purpose all the administrative post s including the general Administrative posts are required to be taken into account. On the other hand the object of recruiting Temporary Assistant Officers was to meet specific requirements of various projects with a prospect of promotion in a temporary capacity to a senior scale post and absorption into the Indian Railway Service of Engineers Class I. They were not to be members of the Indian Railway Service of Engineers but were to be a source of recruitment to the Indian Railway Service of Engineers. Thus the very appointments of Temporary Assistant Officers were to temporary posts outside the cadre and outside the recruitment rules of the Indian Railway Service of Engineers Class I and the very nature of this tenure was precarious, whereas Class I Officers recruited on the basis of a result of competitive examination were appointed to cadre posts strictly in accordance with the recruitment rulesTrue, the minimum educational qualification is the same. But, those who are recruited directly to the Indian Railway Service of Engineers Class I are subjected to stiff and competitive, written and personality tests. Only the very best can aspire to come out successful. The Temporary Assistant Officers were not subjected either to a written or to a personality test but were selected on the basis of an interview by the Union Public Service Commission. In addition to the minimum educational qualification, three years experience as a Civil Engineer was also prescribed. Thus while brilliance was the beacon light which beckoned those aspiring to become members of the Indian Railway Service of Engineers Class I, it was replaced by experience in the case of those wanting to be Temporary Assistant Officers. Again the appointing authority in the case of Indian Railway Service of Engineers Class I is the President while the appointing authority in the case of Temporary Assistant Officers was the Railway Board, no doubt, pursuant to the authority given by the President. Different courses of training were prescribed for the Indian Railway Service of Engineers and the Temporary Assistant Officers. For the Indian Railway Service of Engineers the training is an intensive and comprehensive one designed to equip them for higher posts in the De partment too, while the training for Temporary Assistant Engineers was a brief six months training intended merely to equip them for carrying out the specific jobs. In the matter of terms and conditions of service, while the provisions of the Indian Railway Establishment Code are fully applicable to the Indian Railway Service of Engineers Class I, those provisions are applicable to "Temporary Assistant Officers" to the extent there is no specific provision in their letter of appointment and agreementThe very tenure of the Temporary Assistant Officers was precarious and their immediate aspiration was only to be absorbed into the Indian Railway Service of Engineers class I. These distinctive features marked out the Temporary Assistant Officers as at from the Indian Railway Service of Engineers Class I and therefore there was no question of entitlement of equal rights with the latter. Of course, once they were absorbed into the Indian Railway Service of Engineers they would be entitled not to be treated differently thereafter. Their seniority would ordinarily be reckoned from the date of their absorption into the Indian Railway Service of Engineers, as promised in their letters of appointment. No doubt these officers merited something more than the long wait at the portals of the Indian Railway Service of Engineers. The Railway Board however, appears to have tried to make the long wait a little less tedious by giving them weightage of half of their length of service as Temporary Assistant Officers, subject to a maximum of five years. We wish to say nothing about the validity of such weightage as we understand it is in question elsewhere33. Though we are denying the claim of the petitioners to equality because of the history, origin, and structure of the Services and the existing legal position in relation thereto, we do not wish to be understood as saying that there is any thing doctrinaire in the principles of equal pay for equal work and equal status for equal pay and equal work. They are not goals to be scoffed at. It may be that in the present societal context the goals appear to be distant. But they are goals worthy of attainment and let us hope, with no overtones of cynicism, that these goals will be achieved in the not too distant future. | 1 | 13,949 | 3,400 | ### 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:
have stated earlier, the appointments of some of the petitioners and some of the respondents were made in violation of the rules which were in force at the relevant time. It is in respect of that class of persons that the Delhi High Court was driven to hold that they must be deemed to have been appointed to ex-cadre posts..... But, the fact remains that persons who were appointed contrary to the rules but to ex-cadre posts were taken initially for purposes of certain projects to which we have already referred. Their precarious tenure was continued from time to time but that will not furnish justification for treating them on the same footing as others whose appointments were made strictly in accordance with the rules and who were appointed to posts borne on the cadre of the Central Engineering Service. A division of these two classes of officers into separate categories will remove possible injustice to those who were appointed to cadre posts in that their promotional opportunities will not be blocked or hindered by ex-cadre officers w ho were recruited on a large scale to meet an urgent necessity. Such a classification will also minimise the injustice which would otherwise have been caused to those who were appointed to ex-cadre posts". 32. We have referred, without comment, to a few earlier decisions of this Court and quoted the observations of learned Judges therein. These decisions and the observations extracted therefrom illustrate and emphasise that there are and there can be no absolutes when we consider claims to justice on complaints of inequality. The Marxian ultimate of a classless society, however laudable that may be, is evidently not what is sought to be achieved by Articles 14 and 16 of the Constitution. The goal is a limited one. It is equality among comparables. A necessary, but not necessarily cynical, implication of equality among comparable is the permissibility of reasonable classification, having nexus with the object to be achieved. So, it was said that if two services started and continued dissimilarly, though they apparently discharged similar duties, they were not comparable services so as to furnish a basis for the claim to equality (State of Punjab v. Joginder Singh) (supra). Bu t, if in the same service there were two sources of recruitment to the same posts, a classification based solely on source of recruitment was not permissible (Roshan Lal Tandon v. Union of India, and Mervyn Coutinda &Ors. v. Collector of Customs, Bombay &Ors.) (supra). This was also the principle of the decision in S. B. Patwardhan &Ors. etc. etc. v. State of Maharashtra &Ors. (supra). Even so, Chandrachud, J., Krishna Iyer, J., and Bhagwati, J., had to recognise, even if reluctantly, that even among the members of the same service, a classification based otherwise than on mere source of recruitment such as educational qualification was at times permissible. But necessary words of caution against making minute and micro-cosmic classifications were uttered. (State of Jammu &Kashmir v. Trilokinath Khosa, (Supra) and Mohammad Shujat Ali &Ors. etc. v. Union of India &Ors. etc. (supra). Chandrachud, J., however drew the line when among members of the same service a classification was sought to be made between those who had been recruited on the basis of results of a competitive examination and those who had come in by the method of interview. But, here again he felt constrained to say that those who were appointed to ex-cadre posts outside the rules and whose tenure was therefore precarious could not claim to be treated on the same footing as those who were appointed strictly in accordance with the rules and to posts borne on the cadre of the service (H. S. Verma &Anr. v. Secretary, Ministry of Shipping &Transport &Ors.) (supra).If we now look at the facts of the case before us, we find that the service comprising the Temporary Assistant Officers and the Indian Railway Service of Engineers Class I started separately and never became one. The objects of their recruitment were different as explained earlier, the methods of recruitment were dissimilar and the appointing authority was not the same. The training that was imparted was also unlike. The very tenure of the Temporary Assistant Officers was precarious and their immediate aspiration was only to be absorbed into the Indian Railway Service of Engineers class I. These distinctive features marked out the Temporary Assistant Officers as a Class-apart from the Indian Railway Service of Engineers Class I and therefore there was no question of entitlement of equal rights with the latter. Of course, once they were absorbed into the Indian Railway Service of Engineers they would be entitled not to be treated differently thereafter. Their seniority would ordinarily be reckoned from the date of their absorption into the Indian Railway Service of Engineers, as promised in their letters of appointment. No doubt these officers merited something more than the long wait at the portals of the Indian Railway Service of Engineers. The Railway Board however, appears to have tried to make the long wait a little less tedious by giving them weightage of half of their length of service as Temporary Assistant Officers, subject to a maximum of five years. We wish to say nothing about the validity of such weightage as we understand it is in question elsewhere. 33. Though we are denying the claim of the petitioners to equality because of the history, origin, and structure of the Services and the existing legal position in relation thereto, we do not wish to be understood as saying that there is any thing doctrinaire in the principles of equal pay for equal work and equal status for equal pay and equal work. They are not goals to be scoffed at. It may be that in the present societal context the goals appear to be distant. But they are goals worthy of attainment and let us hope, with no overtones of cynicism, that these goals will be achieved in the not too distant future.
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1
### Explanation:
or by selection by the Union Public Service Commission. Part of this submission has already been met b y us and we have shown how Temporary Assistant Officers are not Assistant Officers within the meaning of that expression in the Indian Railway Establishment Code24. It is true that the minimum educational qualification for the post of Temporary Assistant Officer was the same as that for recruitment to the Indian Railway Service of Engineers Class I. It is true that the scale of pay is the same, and the functions and duties are the same. It is also true that except to the ex tent provided, the Temporary Assistant Officers were also subject to the provisions of the Indian Railway Establishment Code and the rules made thereunder. But, there are certain fundamental differences between two classes which cannot be ignored and which demand attention. To begin with, the object of recruitment to the Indian Railway Service of Engineers is to provide Officers of the highest quality to meet the requirements of all posts in the service including Senior Administrative posts. Rule 109(2)(c) of the Indian Railway Establishment Code, extracted earlier expressly provides that the number of posts to be allotted to the Assistant Officers grade shall be calculated with reference to the total number of administrative and District Officers posts, and shall be so fixed as to allow of a continuous flow of promotion from the Assistant Officers grade to the higher grades after a given period of service. For this purpose all the administrative post s including the general Administrative posts are required to be taken into account. On the other hand the object of recruiting Temporary Assistant Officers was to meet specific requirements of various projects with a prospect of promotion in a temporary capacity to a senior scale post and absorption into the Indian Railway Service of Engineers Class I. They were not to be members of the Indian Railway Service of Engineers but were to be a source of recruitment to the Indian Railway Service of Engineers. Thus the very appointments of Temporary Assistant Officers were to temporary posts outside the cadre and outside the recruitment rules of the Indian Railway Service of Engineers Class I and the very nature of this tenure was precarious, whereas Class I Officers recruited on the basis of a result of competitive examination were appointed to cadre posts strictly in accordance with the recruitment rulesTrue, the minimum educational qualification is the same. But, those who are recruited directly to the Indian Railway Service of Engineers Class I are subjected to stiff and competitive, written and personality tests. Only the very best can aspire to come out successful. The Temporary Assistant Officers were not subjected either to a written or to a personality test but were selected on the basis of an interview by the Union Public Service Commission. In addition to the minimum educational qualification, three years experience as a Civil Engineer was also prescribed. Thus while brilliance was the beacon light which beckoned those aspiring to become members of the Indian Railway Service of Engineers Class I, it was replaced by experience in the case of those wanting to be Temporary Assistant Officers. Again the appointing authority in the case of Indian Railway Service of Engineers Class I is the President while the appointing authority in the case of Temporary Assistant Officers was the Railway Board, no doubt, pursuant to the authority given by the President. Different courses of training were prescribed for the Indian Railway Service of Engineers and the Temporary Assistant Officers. For the Indian Railway Service of Engineers the training is an intensive and comprehensive one designed to equip them for higher posts in the De partment too, while the training for Temporary Assistant Engineers was a brief six months training intended merely to equip them for carrying out the specific jobs. In the matter of terms and conditions of service, while the provisions of the Indian Railway Establishment Code are fully applicable to the Indian Railway Service of Engineers Class I, those provisions are applicable to "Temporary Assistant Officers" to the extent there is no specific provision in their letter of appointment and agreementThe very tenure of the Temporary Assistant Officers was precarious and their immediate aspiration was only to be absorbed into the Indian Railway Service of Engineers class I. These distinctive features marked out the Temporary Assistant Officers as at from the Indian Railway Service of Engineers Class I and therefore there was no question of entitlement of equal rights with the latter. Of course, once they were absorbed into the Indian Railway Service of Engineers they would be entitled not to be treated differently thereafter. Their seniority would ordinarily be reckoned from the date of their absorption into the Indian Railway Service of Engineers, as promised in their letters of appointment. No doubt these officers merited something more than the long wait at the portals of the Indian Railway Service of Engineers. The Railway Board however, appears to have tried to make the long wait a little less tedious by giving them weightage of half of their length of service as Temporary Assistant Officers, subject to a maximum of five years. We wish to say nothing about the validity of such weightage as we understand it is in question elsewhere33. Though we are denying the claim of the petitioners to equality because of the history, origin, and structure of the Services and the existing legal position in relation thereto, we do not wish to be understood as saying that there is any thing doctrinaire in the principles of equal pay for equal work and equal status for equal pay and equal work. They are not goals to be scoffed at. It may be that in the present societal context the goals appear to be distant. But they are goals worthy of attainment and let us hope, with no overtones of cynicism, that these goals will be achieved in the not too distant future.
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Anil Kumar Roy Chowdhury and Others Vs. Commissioner of Income Tax, West Bengal II | is also true that the order of the Pakistan Agricultural Income-tax Officer was not conclusive on the point because "Hindu undivided family" as defined in section 2(8) of the Bengal Agricultural Income-tax Act, 1944, means a "Hindu undivided family governed by Mitakshara law" and does not include a Dayabhaga undivided family; therefore, even if the income was of the undivided family of the appellants, the Pakistan Agricultural Income-tax Officer had to assess it in the hands of the individual members of the family who belong to the Dayabhaga school of Hindu law. But the claim that the income belonged to the appellants in their individual capacity was admittedly made before the Appellate Assistant Commissioner who did not accept it giving reasons for his decision and the Tribunal in appeal held that these were not valid reasons. No objection, however, appears to have been taken either before the Appellate Assistant Commissioner or before the Tribunal that the assessee was not entitled to raise the contention which was not specifically raised before the Income-tax Officer. No such question was sought to be raised in the applications under sections 66(1) and 66(2). We do not think that the High Court had jurisdiction in a reference under section 66 to go behind the order of the Appellate Tribunal to investigate what case the assessee had initially made when the agreed statement of case sets out the assessees claim as finally made and considered. Admittedly, there is no evidence that the property from which the income in question accrued was the property of the Hindu undivided family. The person who asserts that a property is joint family property has to prove that it is so. Nothing appears from the order of the Income-tax Officer or the Appellate Assistant Commissioner or the Tribunal on which a presumption might arise that the property was acquired with the income of some joint property which the appellants may have possessed. In the absence of any such evidence the burden cannot shift to the appellants to prove affirmatively that the property in question was acquired with the joint family funds. The conclusions of fact recorded by the Tribunal cannot, therefore, be said to be without any basisIn our opinion, the approach of the High Court was incorrect and this has vitiated the answers it has given to the questions referred to it. It is well-settled that in a reference under section 66 of the Act, the High Court exercises advisory jurisdiction and does not function as a court of appeal. The nature of the High Courts jurisdiction in dealing with references under section 66 was explained by this court in Commissioner of Income-tax v. Calcutta Agency Ltd. as follows: "The jurisdiction of the High Court in the matter of income-tax references is an advisory jurisdiction and under the Act the decision of the Tribunal on facts is final, unless it can be successfully assailed on the ground that there was no evidence for the conclusions on facts recorded by the Tribunal. It is, therefore, the duty of the High Court to start by looking at the facts found by the Tribunal and answer the questions of law on that footing. Any departure from this rule of law will convert the High Court into a fact-finding authority, which it is not under the advisory jurisdiction. The statement of the case under the rules framed under the Income-tax Act is prepared with the knowledge of the parties concerned and they have a full opportunity to apply for any addition or deletion from that statement of the case. If they approved of that statement that is the agreed statement of facts by the parties on which the High Court has to pronounce its judgment." 4. In India Cements Ltd. v. Commissioner of Income-tax this court again observed that the High Court must accept the findings of fact made by the Appellate Tribunal and the correctness of these findings of fact cannot be questioned except by applying under section 66 expressly raising the question about the validity of the findings. In Rameshwar Prasad Bagla v. Commissioner of Income-tax this court reiterated the law stated in Commissioner of Income-tax v. Calcutta Agency Ltd. and India Cements Ltd. v. Commissioner of Income-tax"It is for the Tribunal to decide questions of fact, and the High Court in a reference under section 66 of the Act cannot go behind the Tribunals findings of fact. The High Court can only lay down the law applicable to the facts found by the Tribunal. The High Court and the Supreme Court, in an appeal against the judgment of the High Court given in a reference under section 66 of the Act, are not constituted courts of appeal against the order of the Tribunal. These courts only exercise advisory jurisdiction in such references. The High Court in a reference under section 66 of the Act can, however, go into the question as to whether the conclusion of the Tribunal on a question of fact is based upon relevant evidence............The fact that the High Court on appreciation of evidence would have arrived at a conclusion of fact different from that of the Tribunal did not warrant interference with the finding of the Tribunal." 5. On the facts as found by the Tribunal the answer to the question referred under section 66(1) must, therefore, be in the affirmative. As regards the three questions referred under section 66(2), for the reasons already stated, the Tribunal was right in holding that section 25A of the Indian Income-tax Act, 1922, had no application in the present case and the answer to the first question must also be in the affirmative. In view of the affirmative answers to these two questions, the other two questions referred under section 66(2) do not really arise; we have, however, already held that on the facts appearing from the order of the Tribunal the onus was upon the department to prove that the income in question belonged to the Hindu undivided family. | 1[ds]The High Court observed that the question whether the agricultural land in Pakistan belonged to the Hindu undivided family or to its members individually was "a crucial question of fact" and was of opinion that the Tribunal was wrong in allowing the assessee to raise this question which was not raised before thex Officer. The High Court held that the conclusion reached by the Tribunal that the members of the undivided family owned the property in their individual capacity "was not supported by any fact or evidence". According to the High Court the assessees claim could succeed only if the requirements of section 25A were satisfied. The High Court also found that "even the remittances from Pakistan were being absorbed and appropriated to the credit of joint accounts of the Hindu undivided family here in India, as already indicated, and there was the fact of blending indicated by that act". These facts, however, do not appear either from the statement of case or the order of the Tribunal. On the view taken by it, the High Court answered the question referred under section 66(1) in the negative in favour of the revenue. Of the three questions referred under section 66(2), the High Court answered question (a) in the negative and in favour of the revenue holding that the Tribunal was wrong in saying that section 25A of thex Act had no application in the present case. Question (b) was also answered in the negative and in favour of the revenue on the finding that on the facts and circumstances the Tribunal was wrong in placing the onus upon the department. Question (c) too was answered in the negative and in favour of the revenueIt does not seem to us that the High Court was right in thinking that the assessees case never was that the agricultural income did not belong to the Hindu undivided family but to its members in severalty. It is true, that the argument does not appear to have been made before thex Officer, but the order of the Pakistan Agriculturalx Officer on which thex Officer in Calcutta relied shows that the former had assessed the income in the hands of the individual members of the family. It is also true that the order of the Pakistan Agriculturalx Officer was not conclusive on the point because "Hindu undivided family" as defined in section 2(8) of the Bengal Agriculturalx Act, 1944, means a "Hindu undivided family governed by Mitakshara law" and does not include a Dayabhaga undivided family; therefore, even if the income was of the undivided family of the appellants, the Pakistan Agriculturalx Officer had to assess it in the hands of the individual members of the family who belong to the Dayabhaga school of Hindu law. But the claim that the income belonged to the appellants in their individual capacity was admittedly made before the Appellate Assistant Commissioner who did not accept it giving reasons for his decision and the Tribunal in appeal held that these were not valid reasons. No objection, however, appears to have been taken either before the Appellate Assistant Commissioner or before the Tribunal that the assessee was not entitled to raise the contention which was not specifically raised before thex Officer. No such question was sought to be raised in the applications under sections 66(1) and 66(2). We do not think that the High Court had jurisdiction in a reference under section 66 to go behind the order of the Appellate Tribunal to investigate what case the assessee had initially made when the agreed statement of case sets out the assessees claim as finally made and considered. Admittedly, there is no evidence that the property from which the income in question accrued was the property of the Hindu undivided family. The person who asserts that a property is joint family property has to prove that it is so. Nothing appears from the order of thex Officer or the Appellate Assistant Commissioner or the Tribunal on which a presumption might arise that the property was acquired with the income of some joint property which the appellants may have possessed. In the absence of any such evidence the burden cannot shift to the appellants to prove affirmatively that the property in question was acquired with the joint family funds. The conclusions of fact recorded by the Tribunal cannot, therefore, be said to be without any basisIn our opinion, the approach of the High Court was incorrect and this has vitiated the answers it has given to the questions referred to it. It isd that in a reference under section 66 of the Act, the High Court exercises advisory jurisdiction and does not function as a court of appeal4. In India Cements Ltd. v. Commissioner ofx this court again observed that the High Court must accept the findings of fact made by the Appellate Tribunal and the correctness of these findings of fact cannot be questioned except by applying under section 66 expressly raising the question about the validity of the findings. In Rameshwar Prasad Bagla v. Commissioner ofx this court reiterated the law stated in Commissioner ofx v. Calcutta Agency Ltd. and India Cements Ltd. v. Commissioner oft is for the Tribunal to decide questions of fact, and the High Court in a reference under section 66 of the Act cannot go behind the Tribunals findings of fact. The High Court can only lay down the law applicable to the facts found by the Tribunal. The High Court and the Supreme Court, in an appeal against the judgment of the High Court given in a reference under section 66 of the Act, are not constituted courts of appeal against the order of the Tribunal. These courts only exercise advisory jurisdiction in such references. The High Court in a reference under section 66 of the Act can, however, go into the question as to whether the conclusion of the Tribunal on a question of fact is based upon relevant evidence............The fact that the High Court on appreciation of evidence would have arrived at a conclusion of fact different from that of the Tribunal did not warrant interference with the finding of the Tribunal."5. On the facts as found by the Tribunal the answer to the question referred under section 66(1) must, therefore, be in the affirmative. As regards the three questions referred under section 66(2), for the reasons already stated, the Tribunal was right in holding that section 25A of the Indianx Act, 1922, had no application in the present case and the answer to the first question must also be in the affirmative. In view of the affirmative answers to these two questions, the other two questions referred under section 66(2) do not really arise; we have, however, already held that on the facts appearing from the order of the Tribunal the onus was upon the department to prove that the income in question belonged to the Hindu undivided family. | 1 | 2,435 | 1,274 | ### 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:
is also true that the order of the Pakistan Agricultural Income-tax Officer was not conclusive on the point because "Hindu undivided family" as defined in section 2(8) of the Bengal Agricultural Income-tax Act, 1944, means a "Hindu undivided family governed by Mitakshara law" and does not include a Dayabhaga undivided family; therefore, even if the income was of the undivided family of the appellants, the Pakistan Agricultural Income-tax Officer had to assess it in the hands of the individual members of the family who belong to the Dayabhaga school of Hindu law. But the claim that the income belonged to the appellants in their individual capacity was admittedly made before the Appellate Assistant Commissioner who did not accept it giving reasons for his decision and the Tribunal in appeal held that these were not valid reasons. No objection, however, appears to have been taken either before the Appellate Assistant Commissioner or before the Tribunal that the assessee was not entitled to raise the contention which was not specifically raised before the Income-tax Officer. No such question was sought to be raised in the applications under sections 66(1) and 66(2). We do not think that the High Court had jurisdiction in a reference under section 66 to go behind the order of the Appellate Tribunal to investigate what case the assessee had initially made when the agreed statement of case sets out the assessees claim as finally made and considered. Admittedly, there is no evidence that the property from which the income in question accrued was the property of the Hindu undivided family. The person who asserts that a property is joint family property has to prove that it is so. Nothing appears from the order of the Income-tax Officer or the Appellate Assistant Commissioner or the Tribunal on which a presumption might arise that the property was acquired with the income of some joint property which the appellants may have possessed. In the absence of any such evidence the burden cannot shift to the appellants to prove affirmatively that the property in question was acquired with the joint family funds. The conclusions of fact recorded by the Tribunal cannot, therefore, be said to be without any basisIn our opinion, the approach of the High Court was incorrect and this has vitiated the answers it has given to the questions referred to it. It is well-settled that in a reference under section 66 of the Act, the High Court exercises advisory jurisdiction and does not function as a court of appeal. The nature of the High Courts jurisdiction in dealing with references under section 66 was explained by this court in Commissioner of Income-tax v. Calcutta Agency Ltd. as follows: "The jurisdiction of the High Court in the matter of income-tax references is an advisory jurisdiction and under the Act the decision of the Tribunal on facts is final, unless it can be successfully assailed on the ground that there was no evidence for the conclusions on facts recorded by the Tribunal. It is, therefore, the duty of the High Court to start by looking at the facts found by the Tribunal and answer the questions of law on that footing. Any departure from this rule of law will convert the High Court into a fact-finding authority, which it is not under the advisory jurisdiction. The statement of the case under the rules framed under the Income-tax Act is prepared with the knowledge of the parties concerned and they have a full opportunity to apply for any addition or deletion from that statement of the case. If they approved of that statement that is the agreed statement of facts by the parties on which the High Court has to pronounce its judgment." 4. In India Cements Ltd. v. Commissioner of Income-tax this court again observed that the High Court must accept the findings of fact made by the Appellate Tribunal and the correctness of these findings of fact cannot be questioned except by applying under section 66 expressly raising the question about the validity of the findings. In Rameshwar Prasad Bagla v. Commissioner of Income-tax this court reiterated the law stated in Commissioner of Income-tax v. Calcutta Agency Ltd. and India Cements Ltd. v. Commissioner of Income-tax"It is for the Tribunal to decide questions of fact, and the High Court in a reference under section 66 of the Act cannot go behind the Tribunals findings of fact. The High Court can only lay down the law applicable to the facts found by the Tribunal. The High Court and the Supreme Court, in an appeal against the judgment of the High Court given in a reference under section 66 of the Act, are not constituted courts of appeal against the order of the Tribunal. These courts only exercise advisory jurisdiction in such references. The High Court in a reference under section 66 of the Act can, however, go into the question as to whether the conclusion of the Tribunal on a question of fact is based upon relevant evidence............The fact that the High Court on appreciation of evidence would have arrived at a conclusion of fact different from that of the Tribunal did not warrant interference with the finding of the Tribunal." 5. On the facts as found by the Tribunal the answer to the question referred under section 66(1) must, therefore, be in the affirmative. As regards the three questions referred under section 66(2), for the reasons already stated, the Tribunal was right in holding that section 25A of the Indian Income-tax Act, 1922, had no application in the present case and the answer to the first question must also be in the affirmative. In view of the affirmative answers to these two questions, the other two questions referred under section 66(2) do not really arise; we have, however, already held that on the facts appearing from the order of the Tribunal the onus was upon the department to prove that the income in question belonged to the Hindu undivided family.
### Response:
1
### Explanation:
from the statement of case or the order of the Tribunal. On the view taken by it, the High Court answered the question referred under section 66(1) in the negative in favour of the revenue. Of the three questions referred under section 66(2), the High Court answered question (a) in the negative and in favour of the revenue holding that the Tribunal was wrong in saying that section 25A of thex Act had no application in the present case. Question (b) was also answered in the negative and in favour of the revenue on the finding that on the facts and circumstances the Tribunal was wrong in placing the onus upon the department. Question (c) too was answered in the negative and in favour of the revenueIt does not seem to us that the High Court was right in thinking that the assessees case never was that the agricultural income did not belong to the Hindu undivided family but to its members in severalty. It is true, that the argument does not appear to have been made before thex Officer, but the order of the Pakistan Agriculturalx Officer on which thex Officer in Calcutta relied shows that the former had assessed the income in the hands of the individual members of the family. It is also true that the order of the Pakistan Agriculturalx Officer was not conclusive on the point because "Hindu undivided family" as defined in section 2(8) of the Bengal Agriculturalx Act, 1944, means a "Hindu undivided family governed by Mitakshara law" and does not include a Dayabhaga undivided family; therefore, even if the income was of the undivided family of the appellants, the Pakistan Agriculturalx Officer had to assess it in the hands of the individual members of the family who belong to the Dayabhaga school of Hindu law. But the claim that the income belonged to the appellants in their individual capacity was admittedly made before the Appellate Assistant Commissioner who did not accept it giving reasons for his decision and the Tribunal in appeal held that these were not valid reasons. No objection, however, appears to have been taken either before the Appellate Assistant Commissioner or before the Tribunal that the assessee was not entitled to raise the contention which was not specifically raised before thex Officer. No such question was sought to be raised in the applications under sections 66(1) and 66(2). We do not think that the High Court had jurisdiction in a reference under section 66 to go behind the order of the Appellate Tribunal to investigate what case the assessee had initially made when the agreed statement of case sets out the assessees claim as finally made and considered. Admittedly, there is no evidence that the property from which the income in question accrued was the property of the Hindu undivided family. The person who asserts that a property is joint family property has to prove that it is so. Nothing appears from the order of thex Officer or the Appellate Assistant Commissioner or the Tribunal on which a presumption might arise that the property was acquired with the income of some joint property which the appellants may have possessed. In the absence of any such evidence the burden cannot shift to the appellants to prove affirmatively that the property in question was acquired with the joint family funds. The conclusions of fact recorded by the Tribunal cannot, therefore, be said to be without any basisIn our opinion, the approach of the High Court was incorrect and this has vitiated the answers it has given to the questions referred to it. It isd that in a reference under section 66 of the Act, the High Court exercises advisory jurisdiction and does not function as a court of appeal4. In India Cements Ltd. v. Commissioner ofx this court again observed that the High Court must accept the findings of fact made by the Appellate Tribunal and the correctness of these findings of fact cannot be questioned except by applying under section 66 expressly raising the question about the validity of the findings. In Rameshwar Prasad Bagla v. Commissioner ofx this court reiterated the law stated in Commissioner ofx v. Calcutta Agency Ltd. and India Cements Ltd. v. Commissioner oft is for the Tribunal to decide questions of fact, and the High Court in a reference under section 66 of the Act cannot go behind the Tribunals findings of fact. The High Court can only lay down the law applicable to the facts found by the Tribunal. The High Court and the Supreme Court, in an appeal against the judgment of the High Court given in a reference under section 66 of the Act, are not constituted courts of appeal against the order of the Tribunal. These courts only exercise advisory jurisdiction in such references. The High Court in a reference under section 66 of the Act can, however, go into the question as to whether the conclusion of the Tribunal on a question of fact is based upon relevant evidence............The fact that the High Court on appreciation of evidence would have arrived at a conclusion of fact different from that of the Tribunal did not warrant interference with the finding of the Tribunal."5. On the facts as found by the Tribunal the answer to the question referred under section 66(1) must, therefore, be in the affirmative. As regards the three questions referred under section 66(2), for the reasons already stated, the Tribunal was right in holding that section 25A of the Indianx Act, 1922, had no application in the present case and the answer to the first question must also be in the affirmative. In view of the affirmative answers to these two questions, the other two questions referred under section 66(2) do not really arise; we have, however, already held that on the facts appearing from the order of the Tribunal the onus was upon the department to prove that the income in question belonged to the Hindu undivided family.
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Mantu Chalak Vs. State of West Bengal | Shelat, J. 1. This writ petition, filed under Article 32 of the Constitution, challenges the validity of the preventive detention of the petitioner by the State of West Bengal. The petitioner was detained in pursuance of an order passed by the District Magistrate, Midnapur in exercise of power conferred on him by sub-section (1) read with sub-section (2) of Section 3 of the Maintenance of Internal Security Act, 26 of 1971. Pursuant to the said order, the petitioner was arrested on February 16, 1972 and has since then been detained in jail. The grounds of detention furnished to the petitioner at the time of his arrest were that on May 17, June 15, July 31 and August 7, 1971 the petitioner together with his associates stopped various goods-trains at different places between various railway stations by placing logs on railway tracks and thereafter stole away several bags of foodgrains by breaking open wagons, which acts were, according to the grounds of detention, prejudicial to the maintenance of supplies and services essential to the community. The various dates given in the return filed by the respondent-Government and otherwise appearing on the record indicate that the detaining authorities took all steps required under the Act, including the reference of the petitioners case to the Advisory Board and consideration of the petitioners representation, both by the Government and the Board, within the time allowed therefor. No objection to the detention on that ground, therefore, can be taken, or has been taken on behalf of the petitioner. 2. Counsel appearing amicus curiae for the petitioner, however, raised three points. The first was that the petitioner was arrested not on February 16, 1972, but on November 19, 1971, that is to say, on the very day when the impugned order was passed. The argument was that if that was so all the subsequent steps taken by Government pursuant to the detention order and required to be taken under the Act would be beyond time rendering his detention illegal. The case set out in the Governments return, however, was that though the order was passed on November 19, 1971, the petitioner could not be arrested till February 16, 1972 as he was all throughout absconding during the intervening period. The question is whether it is possible to say that the return filed by the Government alleging that the petitioner was absconding and therefore could not be arrested till February 16, 1972 is acceptable or not? 3. As against the date of arrest given by Government, the petitioner has given different dates of his arrest at different times. In the petition he gave November 16, 1971 as the date of his arrest, that is to say, even before the date of the detention order. In his representation to the Government he gave the date August 13, 1971 as the date of his arrest and alleged that since then he was kept in Midnapur jail. The petitioners case as to the date of his arrest is thus not consistent. Assuming, however, that for one reason or the other he was in jail either in August or November 1971, the detention order could still be validly passed, if on the date thereof he was either not in jail custody or was likely to be released therefrom within a short time. There is in fact nothing on record to indicate that he was not at large on November 19, 1971 when the impugned order was passed, nor is there any data before us to question the date of his arrest given in the Governments return. That being so, it is impossible to take November 19, 1971 or a date earlier than that as the date of his arrest and hold on such basis that the follow-up step taken by the Government were beyond the admissible time. 4. The second point raised was that amongst the grounds for detention ground No. 4 was vague thereby rendering the detention order and the detention consequent thereupon illegal. Ground No. 4 gives the date, the time, the persons accompanying the petitioner, the place where the incident took place and all other particulars relating to it. It is, therefore, difficult to comprehend as to what is meant by the assertion that ground No. 4 was vague, or that by its being so vague it made it impossible for the petitioner to make an effective representation. 5. Lastly, it was argued that the order of confirmation passed by the State Government after it received the opinion of the Advisory Board did not contain the date of arrest, and that therefore, the petitioner was not able to know on what exact date hdis detention period would terminate. There is nothing in the Act requiring the Government to mention such a date in its order of confirmation. No decision also has been shown requiring that such date should be mentioned in the order of confirmation. The petitioner must know the date of his arrest and can therefrom know when the maximum period of detention permissible under the Act would end. That being the position, it is impossible to see any substance in the contention raised by the petitioner. | 0[ds]The various dates given in the return filed by thet and otherwise appearing on the record indicate that the detaining authorities took all steps required under the Act, including the reference of the petitioners case to the Advisory Board and consideration of the petitioners representation, both by the Government and the Board, within the time allowed therefor. No objection to the detention on that ground, therefore, can be taken, or has been taken on behalf of the petitioner3. As against the date of arrest given by Government, the petitioner has given different dates of his arrest at different times. In the petition he gave November 16, 1971 as the date of his arrest, that is to say, even before the date of the detention order. In his representation to the Government he gave the date August 13, 1971 as the date of his arrest and alleged that since then he was kept in Midnapur jail. The petitioners case as to the date of his arrest is thus not consistent. Assuming, however, that for one reason or the other he was in jail either in August or November 1971, the detention order could still be validly passed, if on the date thereof he was either not in jail custody or was likely to be released therefrom within a short time. There is in fact nothing on record to indicate that he was not at large on November 19, 1971 when the impugned order was passed, nor is there any data before us to question the date of his arrest given in the Governments return. That being so, it is impossible to take November 19, 1971 or a date earlier than that as the date of his arrest and hold on such basis that thep step taken by the Government were beyond the admissible time4. The second point raised was that amongst the grounds for detention ground No. 4 was vague thereby rendering the detention order and the detention consequent thereupon illegal. Ground No. 4 gives the date, the time, the persons accompanying the petitioner, the place where the incident took place and all other particulars relating to it. It is, therefore, difficult to comprehend as to what is meant by the assertion that ground No. 4 was vague, or that by its being so vague it made it impossible for the petitioner to make an effective representation5. Lastly,it was argued that the order of confirmation passed by the State Government after it received the opinion of the Advisory Board did not contain the date of arrest, and that therefore, the petitioner was not able to know on what exact date hdis detention period would terminate.There is nothing in the Act requiring the Government to mention such a date in its order of confirmation. No decision also has been shown requiring that such date should be mentioned in the order of confirmation. The petitioner must know the date of his arrest and can therefrom know when the maximum period of detention permissible under the Act would end. That being the position, it is impossible to see any substance in the contention raised by the petitioner. | 0 | 954 | 576 | ### 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:
Shelat, J. 1. This writ petition, filed under Article 32 of the Constitution, challenges the validity of the preventive detention of the petitioner by the State of West Bengal. The petitioner was detained in pursuance of an order passed by the District Magistrate, Midnapur in exercise of power conferred on him by sub-section (1) read with sub-section (2) of Section 3 of the Maintenance of Internal Security Act, 26 of 1971. Pursuant to the said order, the petitioner was arrested on February 16, 1972 and has since then been detained in jail. The grounds of detention furnished to the petitioner at the time of his arrest were that on May 17, June 15, July 31 and August 7, 1971 the petitioner together with his associates stopped various goods-trains at different places between various railway stations by placing logs on railway tracks and thereafter stole away several bags of foodgrains by breaking open wagons, which acts were, according to the grounds of detention, prejudicial to the maintenance of supplies and services essential to the community. The various dates given in the return filed by the respondent-Government and otherwise appearing on the record indicate that the detaining authorities took all steps required under the Act, including the reference of the petitioners case to the Advisory Board and consideration of the petitioners representation, both by the Government and the Board, within the time allowed therefor. No objection to the detention on that ground, therefore, can be taken, or has been taken on behalf of the petitioner. 2. Counsel appearing amicus curiae for the petitioner, however, raised three points. The first was that the petitioner was arrested not on February 16, 1972, but on November 19, 1971, that is to say, on the very day when the impugned order was passed. The argument was that if that was so all the subsequent steps taken by Government pursuant to the detention order and required to be taken under the Act would be beyond time rendering his detention illegal. The case set out in the Governments return, however, was that though the order was passed on November 19, 1971, the petitioner could not be arrested till February 16, 1972 as he was all throughout absconding during the intervening period. The question is whether it is possible to say that the return filed by the Government alleging that the petitioner was absconding and therefore could not be arrested till February 16, 1972 is acceptable or not? 3. As against the date of arrest given by Government, the petitioner has given different dates of his arrest at different times. In the petition he gave November 16, 1971 as the date of his arrest, that is to say, even before the date of the detention order. In his representation to the Government he gave the date August 13, 1971 as the date of his arrest and alleged that since then he was kept in Midnapur jail. The petitioners case as to the date of his arrest is thus not consistent. Assuming, however, that for one reason or the other he was in jail either in August or November 1971, the detention order could still be validly passed, if on the date thereof he was either not in jail custody or was likely to be released therefrom within a short time. There is in fact nothing on record to indicate that he was not at large on November 19, 1971 when the impugned order was passed, nor is there any data before us to question the date of his arrest given in the Governments return. That being so, it is impossible to take November 19, 1971 or a date earlier than that as the date of his arrest and hold on such basis that the follow-up step taken by the Government were beyond the admissible time. 4. The second point raised was that amongst the grounds for detention ground No. 4 was vague thereby rendering the detention order and the detention consequent thereupon illegal. Ground No. 4 gives the date, the time, the persons accompanying the petitioner, the place where the incident took place and all other particulars relating to it. It is, therefore, difficult to comprehend as to what is meant by the assertion that ground No. 4 was vague, or that by its being so vague it made it impossible for the petitioner to make an effective representation. 5. Lastly, it was argued that the order of confirmation passed by the State Government after it received the opinion of the Advisory Board did not contain the date of arrest, and that therefore, the petitioner was not able to know on what exact date hdis detention period would terminate. There is nothing in the Act requiring the Government to mention such a date in its order of confirmation. No decision also has been shown requiring that such date should be mentioned in the order of confirmation. The petitioner must know the date of his arrest and can therefrom know when the maximum period of detention permissible under the Act would end. That being the position, it is impossible to see any substance in the contention raised by the petitioner.
### Response:
0
### Explanation:
The various dates given in the return filed by thet and otherwise appearing on the record indicate that the detaining authorities took all steps required under the Act, including the reference of the petitioners case to the Advisory Board and consideration of the petitioners representation, both by the Government and the Board, within the time allowed therefor. No objection to the detention on that ground, therefore, can be taken, or has been taken on behalf of the petitioner3. As against the date of arrest given by Government, the petitioner has given different dates of his arrest at different times. In the petition he gave November 16, 1971 as the date of his arrest, that is to say, even before the date of the detention order. In his representation to the Government he gave the date August 13, 1971 as the date of his arrest and alleged that since then he was kept in Midnapur jail. The petitioners case as to the date of his arrest is thus not consistent. Assuming, however, that for one reason or the other he was in jail either in August or November 1971, the detention order could still be validly passed, if on the date thereof he was either not in jail custody or was likely to be released therefrom within a short time. There is in fact nothing on record to indicate that he was not at large on November 19, 1971 when the impugned order was passed, nor is there any data before us to question the date of his arrest given in the Governments return. That being so, it is impossible to take November 19, 1971 or a date earlier than that as the date of his arrest and hold on such basis that thep step taken by the Government were beyond the admissible time4. The second point raised was that amongst the grounds for detention ground No. 4 was vague thereby rendering the detention order and the detention consequent thereupon illegal. Ground No. 4 gives the date, the time, the persons accompanying the petitioner, the place where the incident took place and all other particulars relating to it. It is, therefore, difficult to comprehend as to what is meant by the assertion that ground No. 4 was vague, or that by its being so vague it made it impossible for the petitioner to make an effective representation5. Lastly,it was argued that the order of confirmation passed by the State Government after it received the opinion of the Advisory Board did not contain the date of arrest, and that therefore, the petitioner was not able to know on what exact date hdis detention period would terminate.There is nothing in the Act requiring the Government to mention such a date in its order of confirmation. No decision also has been shown requiring that such date should be mentioned in the order of confirmation. The petitioner must know the date of his arrest and can therefrom know when the maximum period of detention permissible under the Act would end. That being the position, it is impossible to see any substance in the contention raised by the petitioner.
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Killick Nixon Ltd Vs. Custodian | veil to be torn off" as M/s Dhanraj Mills Private Limited had no explanation whatsoever for how such large amounts of "loans" could have been advanced to the appellant and its group Companies when M/s Dhanraj Mills Private Limited itself had been defunct for many years without any commercial activity of its own.7. In the year 1999, The Special Court having considered the request of the original judgment debtors, granted extension of time and directed the Custodian not to proceed with execution of the decrees, subject to payment of defaulted installments. As usually, the appellant and its group Companies defaulted in payment of the said amounts once again. Left with no alternative, the Custodian filed execution applications against the judgment debtors for recovery of dues from M/s Dhanraj Mills Private Limited. It is not necessary to refer the facts, the subsequent events in detail and various objections raised from time to time as to the sale of properties in the process of realizing the decretal amounts. However, one important fact that may be required to state is that the Special Court by its earlier order dated 30th November, 2001 required the judgment debtors to pay Rs.16 crores payable towards all decrees for considering the prayer for extension of time to which all of them agreed to do so. This singular fact establishes that even judgment debtors were treating the separate decrees passed against each one of them as a consolidated common decree. The Custodian, at all points of time treated them as a group to which no objections were raised at any point of time. The sale proceeds were accordingly appropriated against dues of the entire group of M/s Killick Nixon Ltd.8. The dispute now raised by the appellants is that the sale proceeds or the properties of M/s. Killick Nixon group companies ought to be apportioned individually decree wise. This is contrary to its earlier stand. The material available on record also reveals that these group companies have always referred to the aggregate principal amount of alleged loan given by M/s. Dhanraj Mills Private Limited. 9. The appellants submitted before the Special Court that the liabilities of the judgment debtors under separate decrees were not joint liabilities inasmuch as each judgment debtor is a separate entity in law having their separate properties and assets. It was the case of the appellants that merely because the judgment debtors are group companies the amount of decree passed against them cannot be consolidated. It was their case that the Custodian cannot be permitted to appropriate the amounts paid by the judgment debtors as also the sale proceeds realized from the sale of properties towards a consolidated decree. It is not necessary to refer in detail the stand taken by the Custodian opposing the plea of the appellants. Various instances were pointed out by the Custodian as to how the appellants themselves were treating the decrees as a consolidated one.10. It was specifically demonstrated by the Custodian that the appellants not only treated them as one group but have themselves proceeded and agreed to have appropriation of the sale proceeds of the properties sold on group basis. The averment in the petition filed in the Special Court contained figures relating to the aggregate dues of the group, the aggregate amounts received from the sale of properties and the aggregate balance amount.11. The Special Court after a detailed consideration came to the conclusion that M/s. Killick Nixon Limited and others are group companies and they are all controlled by M/s. Dhanraj Mills Private Limited - notified party and the amounts that are being recovered in execution of the decrees are really public funds which were siphoned off by the Directors of M/s Dhanraj Mills Private Limited, and parked in the companies controlled by them. The Special Court accordingly held that the appropriation of sale proceeds made by the Custodian is proper and accordingly the Custodian should proceed further to recover the amount that remained in balance.12. In these appeals, the singular submission made by Shri Dhruv Mehta, learned senior counsel for the appellants, is that the appropriation of sale proceeds ought to have been carried out individually against each of the decree and not as done by the Custodian treating all the decrees as a consolidated decree. 13. Having heard learned counsel for the appellants and respondent, we are satisfied that an interference with the impugned order passed by the Special Court, which is purely interlocutory and does not decide any rights of any party, is unwarranted. The Special Court did not decide any rights of the parties but merely passed orders from time to time including the one under the appeals for the realization of the amounts under the decrees passed which attained their finality. The procedure adopted for realization of the amounts under the decrees and the manner of appropriation, in our considered opinion, by itself does not amount to deciding any lis as such between the parties. Under Section 10 of the Act that an appeal shall lie to this Court from any judgment, sentence or order of the Special Court but not against the interlocutory orders. Appeals against interlocutory orders are specially excluded under the said provision.14. There cannot be any iota of doubt that M/s Killick Nixon and other companies were always treated as one group and there is a clear finding in this regard by the Special Court that the said group of companies are nothing but front companies of M/s. Dhanraj Mills Private Limited.15. The orders impugned in these appeals are purely interlocutory in nature against which no appeal lies to this court under Section 10 of the Act. We are fortified in that view of ours by a decision of this court in CIFCO Properties (P) Ltd. and Others vs. Custodian and Others ((2005) 3 SCC 708 ). Even on merits, we find that the Special Court having meticulously analyzed the facts, arrived at a proper conclusion and rightly treated the decrees as a consolidated one. | 0[ds]13. Having heard learned counsel for the appellants and respondent, we are satisfied that an interference with the impugned order passed by the Special Court, which is purely interlocutory and does not decide any rights of any party, is unwarranted. The Special Court did not decide any rights of the parties but merely passed orders from time to time including the one under the appeals for the realization of the amounts under the decrees passed which attained their finality. The procedure adopted for realization of the amounts under the decrees and the manner of appropriation, in our considered opinion, by itself does not amount to deciding any lis as such between the parties. Under Section 10 of the Act that an appeal shall lie to this Court from any judgment, sentence or order of the Special Court but not against the interlocutory orders. Appeals against interlocutory orders are specially excluded under the said provision.14. There cannot be any iota of doubt that M/s Killick Nixon and other companies were always treated as one group and there is a clear finding in this regard by the Special Court that the said group of companies are nothing but front companies of M/s. Dhanraj Mills Private Limited.15. The orders impugned in these appeals are purely interlocutory in nature against which no appeal lies to this court under Section 10 of the Act. We are fortified in that view of ours by a decision of this court in CIFCO Properties (P) Ltd. and Others vs. Custodian and Others ((2005) 3 SCC 708 ). Even on merits, we find that the Special Court having meticulously analyzed the facts, arrived at a proper conclusion and rightly treated the decrees as a consolidated one. | 0 | 1,750 | 316 | ### Instruction:
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veil to be torn off" as M/s Dhanraj Mills Private Limited had no explanation whatsoever for how such large amounts of "loans" could have been advanced to the appellant and its group Companies when M/s Dhanraj Mills Private Limited itself had been defunct for many years without any commercial activity of its own.7. In the year 1999, The Special Court having considered the request of the original judgment debtors, granted extension of time and directed the Custodian not to proceed with execution of the decrees, subject to payment of defaulted installments. As usually, the appellant and its group Companies defaulted in payment of the said amounts once again. Left with no alternative, the Custodian filed execution applications against the judgment debtors for recovery of dues from M/s Dhanraj Mills Private Limited. It is not necessary to refer the facts, the subsequent events in detail and various objections raised from time to time as to the sale of properties in the process of realizing the decretal amounts. However, one important fact that may be required to state is that the Special Court by its earlier order dated 30th November, 2001 required the judgment debtors to pay Rs.16 crores payable towards all decrees for considering the prayer for extension of time to which all of them agreed to do so. This singular fact establishes that even judgment debtors were treating the separate decrees passed against each one of them as a consolidated common decree. The Custodian, at all points of time treated them as a group to which no objections were raised at any point of time. The sale proceeds were accordingly appropriated against dues of the entire group of M/s Killick Nixon Ltd.8. The dispute now raised by the appellants is that the sale proceeds or the properties of M/s. Killick Nixon group companies ought to be apportioned individually decree wise. This is contrary to its earlier stand. The material available on record also reveals that these group companies have always referred to the aggregate principal amount of alleged loan given by M/s. Dhanraj Mills Private Limited. 9. The appellants submitted before the Special Court that the liabilities of the judgment debtors under separate decrees were not joint liabilities inasmuch as each judgment debtor is a separate entity in law having their separate properties and assets. It was the case of the appellants that merely because the judgment debtors are group companies the amount of decree passed against them cannot be consolidated. It was their case that the Custodian cannot be permitted to appropriate the amounts paid by the judgment debtors as also the sale proceeds realized from the sale of properties towards a consolidated decree. It is not necessary to refer in detail the stand taken by the Custodian opposing the plea of the appellants. Various instances were pointed out by the Custodian as to how the appellants themselves were treating the decrees as a consolidated one.10. It was specifically demonstrated by the Custodian that the appellants not only treated them as one group but have themselves proceeded and agreed to have appropriation of the sale proceeds of the properties sold on group basis. The averment in the petition filed in the Special Court contained figures relating to the aggregate dues of the group, the aggregate amounts received from the sale of properties and the aggregate balance amount.11. The Special Court after a detailed consideration came to the conclusion that M/s. Killick Nixon Limited and others are group companies and they are all controlled by M/s. Dhanraj Mills Private Limited - notified party and the amounts that are being recovered in execution of the decrees are really public funds which were siphoned off by the Directors of M/s Dhanraj Mills Private Limited, and parked in the companies controlled by them. The Special Court accordingly held that the appropriation of sale proceeds made by the Custodian is proper and accordingly the Custodian should proceed further to recover the amount that remained in balance.12. In these appeals, the singular submission made by Shri Dhruv Mehta, learned senior counsel for the appellants, is that the appropriation of sale proceeds ought to have been carried out individually against each of the decree and not as done by the Custodian treating all the decrees as a consolidated decree. 13. Having heard learned counsel for the appellants and respondent, we are satisfied that an interference with the impugned order passed by the Special Court, which is purely interlocutory and does not decide any rights of any party, is unwarranted. The Special Court did not decide any rights of the parties but merely passed orders from time to time including the one under the appeals for the realization of the amounts under the decrees passed which attained their finality. The procedure adopted for realization of the amounts under the decrees and the manner of appropriation, in our considered opinion, by itself does not amount to deciding any lis as such between the parties. Under Section 10 of the Act that an appeal shall lie to this Court from any judgment, sentence or order of the Special Court but not against the interlocutory orders. Appeals against interlocutory orders are specially excluded under the said provision.14. There cannot be any iota of doubt that M/s Killick Nixon and other companies were always treated as one group and there is a clear finding in this regard by the Special Court that the said group of companies are nothing but front companies of M/s. Dhanraj Mills Private Limited.15. The orders impugned in these appeals are purely interlocutory in nature against which no appeal lies to this court under Section 10 of the Act. We are fortified in that view of ours by a decision of this court in CIFCO Properties (P) Ltd. and Others vs. Custodian and Others ((2005) 3 SCC 708 ). Even on merits, we find that the Special Court having meticulously analyzed the facts, arrived at a proper conclusion and rightly treated the decrees as a consolidated one.
### Response:
0
### Explanation:
13. Having heard learned counsel for the appellants and respondent, we are satisfied that an interference with the impugned order passed by the Special Court, which is purely interlocutory and does not decide any rights of any party, is unwarranted. The Special Court did not decide any rights of the parties but merely passed orders from time to time including the one under the appeals for the realization of the amounts under the decrees passed which attained their finality. The procedure adopted for realization of the amounts under the decrees and the manner of appropriation, in our considered opinion, by itself does not amount to deciding any lis as such between the parties. Under Section 10 of the Act that an appeal shall lie to this Court from any judgment, sentence or order of the Special Court but not against the interlocutory orders. Appeals against interlocutory orders are specially excluded under the said provision.14. There cannot be any iota of doubt that M/s Killick Nixon and other companies were always treated as one group and there is a clear finding in this regard by the Special Court that the said group of companies are nothing but front companies of M/s. Dhanraj Mills Private Limited.15. The orders impugned in these appeals are purely interlocutory in nature against which no appeal lies to this court under Section 10 of the Act. We are fortified in that view of ours by a decision of this court in CIFCO Properties (P) Ltd. and Others vs. Custodian and Others ((2005) 3 SCC 708 ). Even on merits, we find that the Special Court having meticulously analyzed the facts, arrived at a proper conclusion and rightly treated the decrees as a consolidated one.
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M/S.Suraj Mal Ram Niwas Oil Mills (P)Ltd Vs. United India Insurance Co. Ltd. | had exceeded the policy limit. In support of his plea that it was not open to the insured to pick and choose the consignments for the purpose of declaration, learned Counsel relied on the decision of the Kings Bench in Dunlop Brothers & Company v. Townend, 1919 (2) KB 127. Learned Counsel contended that appellant had also violated the terms of policy by not informing the respondents immediately about the accident as well as not taking adequate steps to minimise the losses, inasmuch as the goods dispatched from Dharamnagar to Agartala were not properly packed. According to the learned Counsel, the insurance policy casts an obligation on the insured and its agents to take steps for minimizing losses, and the fact that the appellant permitted the carriage of oil in broken tins clearly establishes that the appellant had violated the terms of the policy and, therefore, the respondents cannot be made liable for the losses.21. Lastly, learned Counsel urged that there must be strict compliance with the terms and conditions of an insurance policy, and the appellant having breached a fundamental condition of the policy, the respondent is not liable to pay any amount to them. In support of the contention that in a contract of insurance, rights and obligations are strictly governed by the terms of the policy and no exception or relaxation can be given on the ground of equity, learned Counsel relied on the judgments of this Court in Deokar Exports Private Limited v. New India Assurance Company Limited, I (2009) CPJ 6 (SC)=I (2009) ACC 93 (SC)=(2008) 14 SCC 598 , United India Insurance Co. Ltd.v. Harchand Rai Chandan Lal, V (2004) SLT 876=IV (2004) CPJ 15 (SC)=(2004) 8 SCC 644and Vikram Greentech India Limited & Anr.v. New India Assurance Company Limited, IV (2009) SLT 35=II (2009) CPJ 34 (SC) =(2009) 5 SCC 599. 22. Before embarking on an examination of the correctness of the grounds of repudiation of the policy, it would be apposite to examine the nature of a contract of insurance. It is trite that in a contract of insurance, the rights and obligations are governed by the terms of the said contract. Therefore, the terms of a contract of insurance have to be strictly construed, and no exception can be made on the ground of equity. In General Assurance Society Ltd. (supra), a Constitution Bench of this Court had observed that: “In interpreting documents relating to a contract of insurance, the duty of the Court is to interpret the words in which the contract is expressed by the parties, because it is not for the Court to make a new contract, however reasonable, if the parties have not made it themselves." [See also: Oriental Insurance Co. Ltd. v. Sony Cheriyan, VI (1999) SLT 565=(1999) 6 SCC 451 ; Vikram Greentech (supra); Sikka Papers Limited v. National Insurance Company Limited & Ors., III (2009) CPJ 90 (SC)=(2009) 7 SCC 777 ; New India Assurance Company Limitedv. Zuari Industries Limited & Ors., IV (2009) ACC 390 (SC)=IV (2009) CPJ 19 (SC)=VII (2009) SLT 122=(2009) 9 SCC 70 ; Amravati District Central Cooperative Bank Limited v. United India Fire and General Insurance Company Limited, III (2010) SLT 232=(2010) 5 SCC 294.] 23. Similarly, in Harchand Rai Chandan Lals case (supra), this Court held that: ”The terms of the policy have to be construed as it is and we cannot add or subtract something. Howsoever liberally we may construe the policy but we cannot take liberalism to the extent of substituting the words which are not intended.” 24. Thus, it needs little emphasis that in construing the terms of a contract of insurance, the words used therein must be given paramount importance, and it is not open for the Court to add, delete or substitute any words. It is also well settled that since upon issuance of an insurance policy, the insurer undertakes to indemnify the loss suffered by the insured on account of risks covered by the policy, its terms have to be strictly construed to determine the extent of liability of the insurer. Therefore, the endeavour of the Court should always be to interpret the words in which the contract is expressed by the parties.25. Having considered the instant case on the touchstone of the aforenoted broad principles to be borne in mind while examining the claim of an insured, we are of the opinion that the claim of the appellant must fail on the short ground that there was a breach of the afore-extracted special condition incorporated in the cover note. The special condition viz. "each and every consignment" must be declared before dispatch of goods is clear and admits of no ambiguity. The appellant was obliged to declare "each and every consignment" before it left the appellants factory premises and there is nothing in the policy to suggest that the insured had the liberty to pick and choose the dispatches which they wanted to declare to the insurer, not even at the instance of the consignee, who otherwise is a stranger to the contract between the insurer and the insured. We have no hesitation in rejecting the plea of the appellant that they were required to declare only those dispatches in which they had an insurable interest. It bears repetition that notwithstanding any request by the consignee, the policy of insurance postulated declaration in respect of each and every dispatch by the appellant. Therefore, the fact that purchasers did not want an insurance cover on certain dispatches had no bearing on the obligation of the appellant to declare each and every dispatch under the policy. It is a settled proposition of law that a stranger cannot alter the legal obligations of parties to the contract.26. We are in complete agreement with the National Commission that there was a breach of the special condition in the cover note for the insurance policy on the part of the appellant and, therefore, the repudiation of the claim of the appellant by the respondents was justified. | 1[ds]24. Thus, it needs little emphasis that in construing the terms of a contract of insurance, the words used therein must be given paramount importance, and it is not open for the Court to add, delete or substitute any words. It is also well settled that since upon issuance of an insurance policy, the insurer undertakes to indemnify the loss suffered by the insured on account of risks covered by the policy, its terms have to be strictly construed to determine the extent of liability of the insurer. Therefore, the endeavour of the Court should always be to interpret the words in which the contract is expressed by the parties.25. Having considered the instant case on the touchstone of the aforenoted broad principles to be borne in mind while examining the claim of an insured, we are of the opinion that the claim of the appellant must fail on the short ground that there was a breach of thespecial condition incorporated in the cover note. The special condition viz. "each and every consignment" must be declared before dispatch of goods is clear and admits of no ambiguity. The appellant was obliged to declare "each and every consignment" before it left the appellants factory premises and there is nothing in the policy to suggest that the insured had the liberty to pick and choose the dispatches which they wanted to declare to the insurer, not even at the instance of the consignee, who otherwise is a stranger to the contract between the insurer and the insured. We have no hesitation in rejecting the plea of the appellant that they were required to declare only those dispatches in which they had an insurable interest. It bears repetition that notwithstanding any request by the consignee, the policy of insurance postulated declaration in respect of each and every dispatch by the appellant. Therefore, the fact that purchasers did not want an insurance cover on certain dispatches had no bearing on the obligation of the appellant to declare each and every dispatch under the policy. It is a settled proposition of law that a stranger cannot alter the legal obligations of parties to the contract.26. We are in complete agreement with the National Commission that there was a breach of the special condition in the cover note for the insurance policy on the part of the appellant and, therefore, the repudiation of the claim of the appellant by the respondents was justified. | 1 | 4,036 | 443 | ### Instruction:
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had exceeded the policy limit. In support of his plea that it was not open to the insured to pick and choose the consignments for the purpose of declaration, learned Counsel relied on the decision of the Kings Bench in Dunlop Brothers & Company v. Townend, 1919 (2) KB 127. Learned Counsel contended that appellant had also violated the terms of policy by not informing the respondents immediately about the accident as well as not taking adequate steps to minimise the losses, inasmuch as the goods dispatched from Dharamnagar to Agartala were not properly packed. According to the learned Counsel, the insurance policy casts an obligation on the insured and its agents to take steps for minimizing losses, and the fact that the appellant permitted the carriage of oil in broken tins clearly establishes that the appellant had violated the terms of the policy and, therefore, the respondents cannot be made liable for the losses.21. Lastly, learned Counsel urged that there must be strict compliance with the terms and conditions of an insurance policy, and the appellant having breached a fundamental condition of the policy, the respondent is not liable to pay any amount to them. In support of the contention that in a contract of insurance, rights and obligations are strictly governed by the terms of the policy and no exception or relaxation can be given on the ground of equity, learned Counsel relied on the judgments of this Court in Deokar Exports Private Limited v. New India Assurance Company Limited, I (2009) CPJ 6 (SC)=I (2009) ACC 93 (SC)=(2008) 14 SCC 598 , United India Insurance Co. Ltd.v. Harchand Rai Chandan Lal, V (2004) SLT 876=IV (2004) CPJ 15 (SC)=(2004) 8 SCC 644and Vikram Greentech India Limited & Anr.v. New India Assurance Company Limited, IV (2009) SLT 35=II (2009) CPJ 34 (SC) =(2009) 5 SCC 599. 22. Before embarking on an examination of the correctness of the grounds of repudiation of the policy, it would be apposite to examine the nature of a contract of insurance. It is trite that in a contract of insurance, the rights and obligations are governed by the terms of the said contract. Therefore, the terms of a contract of insurance have to be strictly construed, and no exception can be made on the ground of equity. In General Assurance Society Ltd. (supra), a Constitution Bench of this Court had observed that: “In interpreting documents relating to a contract of insurance, the duty of the Court is to interpret the words in which the contract is expressed by the parties, because it is not for the Court to make a new contract, however reasonable, if the parties have not made it themselves." [See also: Oriental Insurance Co. Ltd. v. Sony Cheriyan, VI (1999) SLT 565=(1999) 6 SCC 451 ; Vikram Greentech (supra); Sikka Papers Limited v. National Insurance Company Limited & Ors., III (2009) CPJ 90 (SC)=(2009) 7 SCC 777 ; New India Assurance Company Limitedv. Zuari Industries Limited & Ors., IV (2009) ACC 390 (SC)=IV (2009) CPJ 19 (SC)=VII (2009) SLT 122=(2009) 9 SCC 70 ; Amravati District Central Cooperative Bank Limited v. United India Fire and General Insurance Company Limited, III (2010) SLT 232=(2010) 5 SCC 294.] 23. Similarly, in Harchand Rai Chandan Lals case (supra), this Court held that: ”The terms of the policy have to be construed as it is and we cannot add or subtract something. Howsoever liberally we may construe the policy but we cannot take liberalism to the extent of substituting the words which are not intended.” 24. Thus, it needs little emphasis that in construing the terms of a contract of insurance, the words used therein must be given paramount importance, and it is not open for the Court to add, delete or substitute any words. It is also well settled that since upon issuance of an insurance policy, the insurer undertakes to indemnify the loss suffered by the insured on account of risks covered by the policy, its terms have to be strictly construed to determine the extent of liability of the insurer. Therefore, the endeavour of the Court should always be to interpret the words in which the contract is expressed by the parties.25. Having considered the instant case on the touchstone of the aforenoted broad principles to be borne in mind while examining the claim of an insured, we are of the opinion that the claim of the appellant must fail on the short ground that there was a breach of the afore-extracted special condition incorporated in the cover note. The special condition viz. "each and every consignment" must be declared before dispatch of goods is clear and admits of no ambiguity. The appellant was obliged to declare "each and every consignment" before it left the appellants factory premises and there is nothing in the policy to suggest that the insured had the liberty to pick and choose the dispatches which they wanted to declare to the insurer, not even at the instance of the consignee, who otherwise is a stranger to the contract between the insurer and the insured. We have no hesitation in rejecting the plea of the appellant that they were required to declare only those dispatches in which they had an insurable interest. It bears repetition that notwithstanding any request by the consignee, the policy of insurance postulated declaration in respect of each and every dispatch by the appellant. Therefore, the fact that purchasers did not want an insurance cover on certain dispatches had no bearing on the obligation of the appellant to declare each and every dispatch under the policy. It is a settled proposition of law that a stranger cannot alter the legal obligations of parties to the contract.26. We are in complete agreement with the National Commission that there was a breach of the special condition in the cover note for the insurance policy on the part of the appellant and, therefore, the repudiation of the claim of the appellant by the respondents was justified.
### Response:
1
### Explanation:
24. Thus, it needs little emphasis that in construing the terms of a contract of insurance, the words used therein must be given paramount importance, and it is not open for the Court to add, delete or substitute any words. It is also well settled that since upon issuance of an insurance policy, the insurer undertakes to indemnify the loss suffered by the insured on account of risks covered by the policy, its terms have to be strictly construed to determine the extent of liability of the insurer. Therefore, the endeavour of the Court should always be to interpret the words in which the contract is expressed by the parties.25. Having considered the instant case on the touchstone of the aforenoted broad principles to be borne in mind while examining the claim of an insured, we are of the opinion that the claim of the appellant must fail on the short ground that there was a breach of thespecial condition incorporated in the cover note. The special condition viz. "each and every consignment" must be declared before dispatch of goods is clear and admits of no ambiguity. The appellant was obliged to declare "each and every consignment" before it left the appellants factory premises and there is nothing in the policy to suggest that the insured had the liberty to pick and choose the dispatches which they wanted to declare to the insurer, not even at the instance of the consignee, who otherwise is a stranger to the contract between the insurer and the insured. We have no hesitation in rejecting the plea of the appellant that they were required to declare only those dispatches in which they had an insurable interest. It bears repetition that notwithstanding any request by the consignee, the policy of insurance postulated declaration in respect of each and every dispatch by the appellant. Therefore, the fact that purchasers did not want an insurance cover on certain dispatches had no bearing on the obligation of the appellant to declare each and every dispatch under the policy. It is a settled proposition of law that a stranger cannot alter the legal obligations of parties to the contract.26. We are in complete agreement with the National Commission that there was a breach of the special condition in the cover note for the insurance policy on the part of the appellant and, therefore, the repudiation of the claim of the appellant by the respondents was justified.
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PYARELAL Vs. SHUBHENDRA PILANIA (MINOR) THROUGH NATURAL GUARDIAN (FATHER) SHRI PRADEEP KUMAR PILANIA | his agents, servants and representatives etc. in any manner; (c) That cost of the suit may be granted in favour of the plaintiff and against the defendant Nos. 2 and 3;(d) Any other relief which this Hon’ble Court may deem fit and proper be also passed in favour of the plaintiff.” 18. The appellant has prayed that the gift deed dated 10 February, 2011 be declared void to the extent of the share claimed by the appellant and that respondent Nos. 1 to 5 be restrained from alienating the share of the appellant. The civil court may decree the relief prayed only if it is first determined that the appellant is entitled to khatedari rights in the suit property. Under the provisions of the Tenancy Act, the jurisdiction to declare khatedari rights vests exclusively with the revenue courts. Only after such determination may the civil court proceed to decree the relief as prayed. The explanation to Section 207 clarifies that if the cause of action in respect of which relief is sought can be granted only by the revenue court, then it is immaterial that the relief asked from the civil court is greater than, or in addition to or not identical with the relief which the revenue court would have granted. In view of this matter, the civil court may not grant relief until the khatedari rights of the appellant have been decreed by a revenue court.19. A claimant whose khatedari rights have been decreed by a revenue court is however on a different footing from a claimant whose khatedari rights are pending adjudication by a revenue court. Where the khatedari rights are yet to be decreed, a claimant must first approach the revenue courts. The relief to declare the gift deed void and to restrain respondents Nos. 1 to 5 from interfering with or alienating the property vesting in a civil court may be sought for in a suit by a claimant in whom khatedari rights have been decreed by a revenue court.20. In Shri Ram v A D J (2001) 3 SCC 24 , a suit was filed before the civil court for the cancellation of a sale deed of an agricultural land on the grounds of fraud and impersonation. The defendant contended that the suit is barred by Section 331 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 which reads thus:“331. Cognizance of suits etc. under this Act. – (1) Except as provided by or under this Act, no Court other than a Court mentioned in Column 4 of Schedule II shall, notwithstanding anything contained in the Civil Procedure Code, 1908 (V of 1908), take cognizance of any suit, application, or proceedings mentioned in Column 3 thereof or of a suit, application or proceedings based on a cause of action in respect of which any relief could be obtained by means of any such suit or application;Explanation.- If the cause of action is one in respect of which relief may be granted by the revenue Court, it is immaterial that the relief asked for from the civil Court may not be incidental to that which the revenue Court would have granted.”The question before this court was whether a recorded tenure-holder having prima facie title in his favour and in possession was required to file a suit in the revenue court, or where the civil court had jurisdiction to entertain and decide the suit seeking relief of cancellation of a void document. Upholding the jurisdiction of civil court to try the suit, a two judge Bench of this Court differentiated between a recorded tenure holder, and an unrecorded tenure holder with the following observations:“7. …we are of the opinion that where a recorded tenure holder having a prima facie title and in possession files suit in the civil court for cancellation of sale deed having obtained on the ground of fraud or impersonation cannot be directed to file a suit for declaration in the revenue court - reason being that in such a case, prima facie, the title of the recorded tenure holder is not under cloud. He does not require declaration of his title to the land. The position would be different where a person not being a recorded tenure holder seeks cancellation of sale deed by filing a suit in the civil court on the ground of fraud or impersonation. There necessarily the plaintiff is required to seek a declaration of his title and, therefore, he may be directed to approach the revenue court, as the sale deed being void has to be ignored for giving him relief for declaration and possession.” 21. Though the above principles emerge in the context of the bar under Section 331 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, the logic of the judgment extends to the bar under Section 207 read with Section 256 of the the Tenancy Act. A recorded khatedar stands on a different footing compared to a claimant seeking a decree of their khatedari rights. A claimant seeking a decree of khatedari rights is barred from filing a suit in the civil court prior to their khatedari right being decreed by a revenue court when the relief sought for by the civil court includes a determination of khatedari rights.22. In the present case, the High Court has proceeded on the basis that the suit seeking a declaration of the gift deed relating to disputed agricultural land situated in Sikar as void and restraining Respondent Nos. 1 to 5 from transfer or sale of the agricultural land before the civil court is squarely covered by the bar to the jurisdiction of the civil court under the provisions of the Tenancy Act. The claim of the appellant to khatedari rights is pending adjudication by a revenue court which has the exclusive jurisdiction to adjudicate upon such a claim. The appellant has no right to seek relief before the civil court without first getting his khatedari rights decreed by the revenue court | 0[ds]Section 207 of the Tenancy Act states that no court other than a revenue court shall take cognizance of suits and applications of the nature specified in the Third Schedule. Such suits can be heard and determined by a revenue court which has exclusive jurisdiction. The explanation clarifies that if the cause of action is one in respect of which relief may be granted by the revenue court, then it is immaterial that a relief sought from the civil court is greater than, in addition to or not identical to the relief sought from the revenue court. Where a suit is of a nature specified in any of the provisions of the Third Schedule, the bar under Section 256 is attracted and the revenue courts have exclusive jurisdiction to try the suit. 14. In Bank of Baroda v Moti Bhai (1985) 1 SCC 475 , a two judge Bench of this Court dealt with the question of jurisdiction under Sections 207 and 256 of the Tenancy Act. A bank had sanctioned a demand loan facility to the respondent for which the respondent executed a promissory note and a simple mortgage in favour of the bank. On his failure to repay the loan, the Bank instituted a suit in the civil court for recovery. The respondent raised a preliminary objection that the suit was essentially one for enforcing the mortgage and that the revenue court had the exclusive jurisdiction to entertain the suit by reason of the provisions contained in the Tenancy Act. The Trial court dismissed the objection. Allowing the revision filed by the respondent, the High Court held that that the mortgage deed in respect of agricultural lands formed an essential part of the cause of action.It is admitted that the suit property is agricultural property and the appellant has filed a suit before the revenue court for the declaration of his khatedariThe appellant has prayed that the gift deed dated 10 February, 2011 be declared void to the extent of the share claimed by the appellant and that respondent Nos. 1 to 5 be restrained from alienating the share of the appellant. The civil court may decree the relief prayed only if it is first determined that the appellant is entitled to khatedari rights in the suit property. Under the provisions of the Tenancy Act, the jurisdiction to declare khatedari rights vests exclusively with the revenue courts. Only after such determination may the civil court proceed to decree the relief as prayed. The explanation to Section 207 clarifies that if the cause of action in respect of which relief is sought can be granted only by the revenue court, then it is immaterial that the relief asked from the civil court is greater than, or in addition to or not identical with the relief which the revenue court would have granted. In view of this matter, the civil court may not grant relief until the khatedari rights of the appellant have been decreed by a revenue court.19. A claimant whose khatedari rights have been decreed by a revenue court is however on a different footing from a claimant whose khatedari rights are pending adjudication by a revenue court. Where the khatedari rights are yet to be decreed, a claimant must first approach the revenue courts. The relief to declare the gift deed void and to restrain respondents Nos. 1 to 5 from interfering with or alienating the property vesting in a civil court may be sought for in a suit by a claimant in whom khatedari rights have been decreed by a revenue court.Though the above principles emerge in the context of the bar under Section 331 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, the logic of the judgment extends to the bar under Section 207 read with Section 256 of the the Tenancy Act. A recorded khatedar stands on a different footing compared to a claimant seeking a decree of their khatedari rights. A claimant seeking a decree of khatedari rights is barred from filing a suit in the civil court prior to their khatedari right being decreed by a revenue court when the relief sought for by the civil court includes a determination of khatedari rights.22. In the present case, the High Court has proceeded on the basis that the suit seeking a declaration of the gift deed relating to disputed agricultural land situated in Sikar as void and restraining Respondent Nos. 1 to 5 from transfer or sale of the agricultural land before the civil court is squarely covered by the bar to the jurisdiction of the civil court under the provisions of the Tenancy Act. The claim of the appellant to khatedari rights is pending adjudication by a revenue court which has the exclusive jurisdiction to adjudicate upon such a claim. The appellant has no right to seek relief before the civil court without first getting his khatedari rights decreed by the revenue court | 0 | 4,248 | 870 | ### Instruction:
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his agents, servants and representatives etc. in any manner; (c) That cost of the suit may be granted in favour of the plaintiff and against the defendant Nos. 2 and 3;(d) Any other relief which this Hon’ble Court may deem fit and proper be also passed in favour of the plaintiff.” 18. The appellant has prayed that the gift deed dated 10 February, 2011 be declared void to the extent of the share claimed by the appellant and that respondent Nos. 1 to 5 be restrained from alienating the share of the appellant. The civil court may decree the relief prayed only if it is first determined that the appellant is entitled to khatedari rights in the suit property. Under the provisions of the Tenancy Act, the jurisdiction to declare khatedari rights vests exclusively with the revenue courts. Only after such determination may the civil court proceed to decree the relief as prayed. The explanation to Section 207 clarifies that if the cause of action in respect of which relief is sought can be granted only by the revenue court, then it is immaterial that the relief asked from the civil court is greater than, or in addition to or not identical with the relief which the revenue court would have granted. In view of this matter, the civil court may not grant relief until the khatedari rights of the appellant have been decreed by a revenue court.19. A claimant whose khatedari rights have been decreed by a revenue court is however on a different footing from a claimant whose khatedari rights are pending adjudication by a revenue court. Where the khatedari rights are yet to be decreed, a claimant must first approach the revenue courts. The relief to declare the gift deed void and to restrain respondents Nos. 1 to 5 from interfering with or alienating the property vesting in a civil court may be sought for in a suit by a claimant in whom khatedari rights have been decreed by a revenue court.20. In Shri Ram v A D J (2001) 3 SCC 24 , a suit was filed before the civil court for the cancellation of a sale deed of an agricultural land on the grounds of fraud and impersonation. The defendant contended that the suit is barred by Section 331 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 which reads thus:“331. Cognizance of suits etc. under this Act. – (1) Except as provided by or under this Act, no Court other than a Court mentioned in Column 4 of Schedule II shall, notwithstanding anything contained in the Civil Procedure Code, 1908 (V of 1908), take cognizance of any suit, application, or proceedings mentioned in Column 3 thereof or of a suit, application or proceedings based on a cause of action in respect of which any relief could be obtained by means of any such suit or application;Explanation.- If the cause of action is one in respect of which relief may be granted by the revenue Court, it is immaterial that the relief asked for from the civil Court may not be incidental to that which the revenue Court would have granted.”The question before this court was whether a recorded tenure-holder having prima facie title in his favour and in possession was required to file a suit in the revenue court, or where the civil court had jurisdiction to entertain and decide the suit seeking relief of cancellation of a void document. Upholding the jurisdiction of civil court to try the suit, a two judge Bench of this Court differentiated between a recorded tenure holder, and an unrecorded tenure holder with the following observations:“7. …we are of the opinion that where a recorded tenure holder having a prima facie title and in possession files suit in the civil court for cancellation of sale deed having obtained on the ground of fraud or impersonation cannot be directed to file a suit for declaration in the revenue court - reason being that in such a case, prima facie, the title of the recorded tenure holder is not under cloud. He does not require declaration of his title to the land. The position would be different where a person not being a recorded tenure holder seeks cancellation of sale deed by filing a suit in the civil court on the ground of fraud or impersonation. There necessarily the plaintiff is required to seek a declaration of his title and, therefore, he may be directed to approach the revenue court, as the sale deed being void has to be ignored for giving him relief for declaration and possession.” 21. Though the above principles emerge in the context of the bar under Section 331 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, the logic of the judgment extends to the bar under Section 207 read with Section 256 of the the Tenancy Act. A recorded khatedar stands on a different footing compared to a claimant seeking a decree of their khatedari rights. A claimant seeking a decree of khatedari rights is barred from filing a suit in the civil court prior to their khatedari right being decreed by a revenue court when the relief sought for by the civil court includes a determination of khatedari rights.22. In the present case, the High Court has proceeded on the basis that the suit seeking a declaration of the gift deed relating to disputed agricultural land situated in Sikar as void and restraining Respondent Nos. 1 to 5 from transfer or sale of the agricultural land before the civil court is squarely covered by the bar to the jurisdiction of the civil court under the provisions of the Tenancy Act. The claim of the appellant to khatedari rights is pending adjudication by a revenue court which has the exclusive jurisdiction to adjudicate upon such a claim. The appellant has no right to seek relief before the civil court without first getting his khatedari rights decreed by the revenue court
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Section 207 of the Tenancy Act states that no court other than a revenue court shall take cognizance of suits and applications of the nature specified in the Third Schedule. Such suits can be heard and determined by a revenue court which has exclusive jurisdiction. The explanation clarifies that if the cause of action is one in respect of which relief may be granted by the revenue court, then it is immaterial that a relief sought from the civil court is greater than, in addition to or not identical to the relief sought from the revenue court. Where a suit is of a nature specified in any of the provisions of the Third Schedule, the bar under Section 256 is attracted and the revenue courts have exclusive jurisdiction to try the suit. 14. In Bank of Baroda v Moti Bhai (1985) 1 SCC 475 , a two judge Bench of this Court dealt with the question of jurisdiction under Sections 207 and 256 of the Tenancy Act. A bank had sanctioned a demand loan facility to the respondent for which the respondent executed a promissory note and a simple mortgage in favour of the bank. On his failure to repay the loan, the Bank instituted a suit in the civil court for recovery. The respondent raised a preliminary objection that the suit was essentially one for enforcing the mortgage and that the revenue court had the exclusive jurisdiction to entertain the suit by reason of the provisions contained in the Tenancy Act. The Trial court dismissed the objection. Allowing the revision filed by the respondent, the High Court held that that the mortgage deed in respect of agricultural lands formed an essential part of the cause of action.It is admitted that the suit property is agricultural property and the appellant has filed a suit before the revenue court for the declaration of his khatedariThe appellant has prayed that the gift deed dated 10 February, 2011 be declared void to the extent of the share claimed by the appellant and that respondent Nos. 1 to 5 be restrained from alienating the share of the appellant. The civil court may decree the relief prayed only if it is first determined that the appellant is entitled to khatedari rights in the suit property. Under the provisions of the Tenancy Act, the jurisdiction to declare khatedari rights vests exclusively with the revenue courts. Only after such determination may the civil court proceed to decree the relief as prayed. The explanation to Section 207 clarifies that if the cause of action in respect of which relief is sought can be granted only by the revenue court, then it is immaterial that the relief asked from the civil court is greater than, or in addition to or not identical with the relief which the revenue court would have granted. In view of this matter, the civil court may not grant relief until the khatedari rights of the appellant have been decreed by a revenue court.19. A claimant whose khatedari rights have been decreed by a revenue court is however on a different footing from a claimant whose khatedari rights are pending adjudication by a revenue court. Where the khatedari rights are yet to be decreed, a claimant must first approach the revenue courts. The relief to declare the gift deed void and to restrain respondents Nos. 1 to 5 from interfering with or alienating the property vesting in a civil court may be sought for in a suit by a claimant in whom khatedari rights have been decreed by a revenue court.Though the above principles emerge in the context of the bar under Section 331 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, the logic of the judgment extends to the bar under Section 207 read with Section 256 of the the Tenancy Act. A recorded khatedar stands on a different footing compared to a claimant seeking a decree of their khatedari rights. A claimant seeking a decree of khatedari rights is barred from filing a suit in the civil court prior to their khatedari right being decreed by a revenue court when the relief sought for by the civil court includes a determination of khatedari rights.22. In the present case, the High Court has proceeded on the basis that the suit seeking a declaration of the gift deed relating to disputed agricultural land situated in Sikar as void and restraining Respondent Nos. 1 to 5 from transfer or sale of the agricultural land before the civil court is squarely covered by the bar to the jurisdiction of the civil court under the provisions of the Tenancy Act. The claim of the appellant to khatedari rights is pending adjudication by a revenue court which has the exclusive jurisdiction to adjudicate upon such a claim. The appellant has no right to seek relief before the civil court without first getting his khatedari rights decreed by the revenue court
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Secretary, O.N.G.C. Ltd. Vs. V.U. Warrier | but "disputed" by him. This Court noted that the employee was keeping a quarter allotted to him and continued to occupy after retirement. It was, inter alia, observed by this Court that after the employee retired, his request and application as per practice for allotment of quarters in the name of his son who was also an employee in the University remained pending and no orders were passed thereon. Moreover, there were resolutions of the University to waive penal rent and such benefits were granted to other employees, but different treatment was shown to him which constituted "hostile discrimination" and the act was thus `unreasonable. Though the employee retired in 1990 and continued to keep the quarter up to 1996, the University did not choose to take any action to evict him. On the contrary, it acquiesced in his occupation "by accepting regularly the normal rent". Thus, there was lack of bona fides on the part of the University. 28. In Wazir Chand vs. Union of India and others, (2001) 6 SCC 596 , a retired employee continuously kept the quarter occupied unauthorisedly. He was charged penal rent in accordance with rules and after adjustment of dues, balance amount of gratuity was paid to him. He contended that it was bounden duty of the Government not to withhold the gratuity amount. The Court, however, dismissed the appeal observing that it was "unable to accept" the prayer of the appellant. The Court observed that the appellant having authorisedly kept the government quarter was liable to pay penal rent in accordance with rules and there was no illegality in adjusting those dues against death-cum-retirement benefits. 29. Wazir Chand was considered in Gorakhpur University but the Court stated that it was not clear from the facts whether the person was allowed to retain the accommodation on receipt of normal rent as in the University case. 30. The matter can be considered from another angle also. It is well-settled that the jurisdiction of the High Court under Article 226 of the Constitution is equitable and discretionary. The power under that Article can be exercised by the High Court "to reach injustice wherever it is found". Before more than fifty years, in G.V. Veerappa Pillai, Proprietor, Sathi Vilas Bus Service, Porayar Tanjore Direct, Madras vs. Raman & Raman Ltd., Kumbakonam, Tanjore District & others, 1952 SCR 583 , the Constitution Bench of this Court speaking through Chandrasekhara Aiyer, J., observed that the writs referred to in Article 226 of the Constitution are obviously intended to enable the High Court to issue them "in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error, or excess has resulted in manifest injustice." (emphasis supplied) 31. Similarly, in the leading case of Sangram Singh vs. Election Commissioner, Kotah & Another, (1955) 2 SCR 1 , dealing with the ambit and scope of powers of High Courts under Article 226 of the Constitution, Bose, J., stated "That, however, is not to say that the jurisdiction will be exercised whenever there is an error of law. The High Courts do not, and should not, act as Courts of appeal under Art 226. Their powers are purely discretionary and though no limits can be placed upon that discretion it must be exercised along recognized lines and not arbitrarily; and one of the limitations imposed by the Courts on themselves is that they will not exercise jurisdiction in this class of cases unless substantial injustice has ensued, or is likely to ensue. They will not allow themselves to be turned into Courts of appeal or revision to set right mere errors of law which do not occasion injustice in a broad and general sense, for, though no legislature can impose limitations on these constitutional powers it is a sound exercise of discretion to bear in mind the policy of the legislature to have disputes about these special rights decided as speedily as may be. Therefore, writ petitions should not be lightly entertained in this class of case." (emphasis supplied) 32. The above principle has been reiterated and followed by this Court in several subsequent cases. 33. As already adverted to by us hereinabove, the facts of the present case did not deserve interference by the High Court in exercise of equitable jurisdiction under Article 226 of the Constitution. The respondent-petitioner before the High Court, was a responsible officer holding the post of Additional Director (Finance & Accounts). He was, thus, "gold collar" employee of the Commission. In the capacity of employee of the Commission, he was allotted a residential quarter. He reached the age of superannuation and retired after office hours of February 28, 1990. He was, therefore, required to vacate the quarter allotted to him by the Commission. The Commission, as per its policy, granted four months time to vacate. He, however, failed to do so. His prayer for continuing to occupy the quarter was duly considered and rejected on relevant and germane grounds. The residential accommodation constructed by him by taking loan at the concessional rate from the Commission was leased to Commission, but the possession of that quarter was restored to him taking into account the fact that he had retired and now he will have to vacate the quarter allotted to him by the Commission. In spite of that, he continued to occupy the quarter ignoring the warning by the Commission that if he would not vacate latest by June 30, 1990, penal rent would be charged from him. In our judgment, considering all these facts, the High Court was wholly unjustified in exercising extraordinary and equitable jurisdiction in favour of the petitioner - respondent herein - and on that ground also, the order passed by the High Court deserves to be set aside. | 1[ds]18. Having heard the learned counsel for the parties, in our opinion, the appeals deserve to be allowed. It is no doubt true that pensionary benefits, such as gratuity, cannot be said to be bounty. Ordinarily, therefore, payment of benefit of gratuity cannot be withheld by an employer. In the instant case, however, it is the specific case of the Commission that the Commission is having a statutory status. In exercise of statutory powers under Section 32(1) of the Act, regulations know as the Oil and Natural Gas Commission (Death, Retirement and Terminal Gratuity) Regulations, 1969 have been framed by the Commission. In Sukhdev Singh vs. Bhagatram Sardar Singh Raghuvanshi & Another, (1975), 1 SCC 421 the Constitution Bench of this Court held that regulations framed by the Commission under Section 32 of the Oil and Natural Gas Commission Act 1959 are statutory in nature and they are enforceable in a court of law. They provide for eligibility of grant of gratuity, extent of gratuity, etc.The above regulation leaves no room of doubt that the Commission has right to effect recovery of its dues from any officer without his consent from gratuity. In the present case admittedly the respondent retired after office hours of February 28, 1990. According to the Commission, he could be allowed four months time to occupy the quarter which was granted to him. His prayer for extension was considered and rejected stating that it would not be possible for the Commission to accept the prayer in view of several officers waiting for quarters. He was also informed that if he would not vacate the quarter, penal rent as per the policy of the Commission would be recovered from him. But the respondent did not vacate the quarter. It was only after eviction proceedings were initiated that he vacated the quarter on May 16, 1991. In the circumstances, in our opinion, it cannot be said that the action of the Commission was arbitrary, unlawful or unreasonable. It also cannot be said that the Commission had no right to withhold gratuity by deducting the amount which is found due to Commission and payable by the respondent towards penal charges for unauthorized occupation of the quarter for the period between July 1, 1990 and May 15, 1991.21. So far as the Payment of Gratuity Act is concerned, according to the appellant, the said Act was not applicable to the respondent. We are concerned with the position as in 1990. Clause (e) of Section 2 of the Act definedFrom the above definition, it is clear that a person can be said to be an "employee" if this wages did not exceed two thousand five hundred rupees per month. According to the Commission, the salary of the respondent was Rs.6800/approximately which was more than Rs.2500/and hence, he could not be held "employee" covered by the definition. The definition of "employee" was no doubt amended subsequently and the provision as to amount of wages had been deleted. But the amendment was made in 1994 and was not retrospective in nature and thus was not applicable in the case of the respondent who retired in 1990.23. As held by this Court in Union of India vs. All India Services Pensioners Association & another, (1988) 2 SCC 580 , an incumbent is entitled to those benefits as he could claim on the date of retirement. He could not claim any benefit prior to his appointment or subsequent to his retirement.24. It is well settled that gratuity is earned by an employee for long and meritorious service rendered by him. Gratuity is not paid to the employee gratuitously or merely as a matter of boon. It is paid to him for the service rendered by him to the employer [vide Garment Cleaning Works vs. Its Workmen, (1962) 1 SCR 711 ]. In Calcutta Insurance Co. Ltd. vs. Their Workmen, (1967) 2 SCR 596 , after considering earlier decisions, this Court observed that "long and meritorious service" must mean long and unbroken period of service meritorious to the end. As the period of service must be unbroken, so must the continuity of meritorious service be a condition for entitling the workman to gratuity. If a workman commits such misconduct as causes financial loss to his employer, the employer would under the general law have a right of action against the employee for the loss caused and making a provision for withholding payment of gratuity where such loss caused to the employer does not seem to aid to the harmonious employment of labourers or workmen. The Court proceeded to state that the misconduct may be such as to undermine the discipline in the workersa case in which it would be extremely difficult to assess the financial loss to the employer.The ratio in R. Kapoor, in our opinion, does not help the respondents as in that case, the claim for damages for unauthorized occupation against theemployee was "pending" and the proceedings were not finally disposed of. In the present case, the facts clearly reveal that the last day of lawful occupation of quarter by the respondent was June 30, 1990 and before that date, the appellant Commission had informed the respondent that his prayer for extension or retention of quarter had not been accepted and he should vacate by June 30, 1990. If he would not vacate the quarter, penal rent would be recovered from him. He did not challenge the action of not extending the period nor the recovery of penal rent. He, therefore, cannot make grievance against the action of the Commission.27. Similar is the case of Gorakhpur University. There retrial benefits were withheld to adjust amount due from the employee but "disputed" by him. This Court noted that the employee was keeping a quarter allotted to him and continued to occupy after retirement. It was, inter alia, observed by this Court that after the employee retired, his request and application as per practice for allotment of quarters in the name of his son who was also an employee in the University remained pending and no orders were passed thereon. Moreover, there were resolutions of the University to waive penal rent and such benefits were granted to other employees, but different treatment was shown to him which constituted "hostile discrimination" and the act was thus `unreasonable. Though the employee retired in 1990 and continued to keep the quarter up to 1996, the University did not choose to take any action to evict him. On the contrary, it acquiesced in his occupation "by accepting regularly the normal rent". Thus, there was lack of bona fides on the part of the University.As already adverted to by us hereinabove, the facts of the present case did not deserve interference by the High Court in exercise of equitable jurisdiction under Article 226 of the Constitution. Thebefore the Highwas a responsible officer holding the post of Additional Director (Finance & Accounts). He was, thus, "gold collar" employee of the Commission. In the capacity of employee of the Commission, he was allotted a residential quarter. He reached the age of superannuation and retired after office hours of February 28, 1990. He was, therefore, required to vacate the quarter allotted to him by the Commission. The Commission, as per its policy, granted four months time to vacate. He, however, failed to do so. His prayer for continuing to occupy the quarter was duly considered and rejected on relevant and germane grounds. The residential accommodation constructed by him by taking loan at the concessional rate from the Commission was leased to Commission, but the possession of that quarter was restored to him taking into account the fact that he had retired and now he will have to vacate the quarter allotted to him by the Commission. In spite of that, he continued to occupy the quarter ignoring the warning by the Commission that if he would not vacate latest by June 30, 1990, penal rent would be charged from him. In our judgment, considering all these facts, the High Court was wholly unjustified in exercising extraordinary and equitable jurisdiction in favour of the petitionerand on that ground also, the order passed by the High Court deserves to be set aside. | 1 | 5,947 | 1,537 | ### Instruction:
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but "disputed" by him. This Court noted that the employee was keeping a quarter allotted to him and continued to occupy after retirement. It was, inter alia, observed by this Court that after the employee retired, his request and application as per practice for allotment of quarters in the name of his son who was also an employee in the University remained pending and no orders were passed thereon. Moreover, there were resolutions of the University to waive penal rent and such benefits were granted to other employees, but different treatment was shown to him which constituted "hostile discrimination" and the act was thus `unreasonable. Though the employee retired in 1990 and continued to keep the quarter up to 1996, the University did not choose to take any action to evict him. On the contrary, it acquiesced in his occupation "by accepting regularly the normal rent". Thus, there was lack of bona fides on the part of the University. 28. In Wazir Chand vs. Union of India and others, (2001) 6 SCC 596 , a retired employee continuously kept the quarter occupied unauthorisedly. He was charged penal rent in accordance with rules and after adjustment of dues, balance amount of gratuity was paid to him. He contended that it was bounden duty of the Government not to withhold the gratuity amount. The Court, however, dismissed the appeal observing that it was "unable to accept" the prayer of the appellant. The Court observed that the appellant having authorisedly kept the government quarter was liable to pay penal rent in accordance with rules and there was no illegality in adjusting those dues against death-cum-retirement benefits. 29. Wazir Chand was considered in Gorakhpur University but the Court stated that it was not clear from the facts whether the person was allowed to retain the accommodation on receipt of normal rent as in the University case. 30. The matter can be considered from another angle also. It is well-settled that the jurisdiction of the High Court under Article 226 of the Constitution is equitable and discretionary. The power under that Article can be exercised by the High Court "to reach injustice wherever it is found". Before more than fifty years, in G.V. Veerappa Pillai, Proprietor, Sathi Vilas Bus Service, Porayar Tanjore Direct, Madras vs. Raman & Raman Ltd., Kumbakonam, Tanjore District & others, 1952 SCR 583 , the Constitution Bench of this Court speaking through Chandrasekhara Aiyer, J., observed that the writs referred to in Article 226 of the Constitution are obviously intended to enable the High Court to issue them "in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error, or excess has resulted in manifest injustice." (emphasis supplied) 31. Similarly, in the leading case of Sangram Singh vs. Election Commissioner, Kotah & Another, (1955) 2 SCR 1 , dealing with the ambit and scope of powers of High Courts under Article 226 of the Constitution, Bose, J., stated "That, however, is not to say that the jurisdiction will be exercised whenever there is an error of law. The High Courts do not, and should not, act as Courts of appeal under Art 226. Their powers are purely discretionary and though no limits can be placed upon that discretion it must be exercised along recognized lines and not arbitrarily; and one of the limitations imposed by the Courts on themselves is that they will not exercise jurisdiction in this class of cases unless substantial injustice has ensued, or is likely to ensue. They will not allow themselves to be turned into Courts of appeal or revision to set right mere errors of law which do not occasion injustice in a broad and general sense, for, though no legislature can impose limitations on these constitutional powers it is a sound exercise of discretion to bear in mind the policy of the legislature to have disputes about these special rights decided as speedily as may be. Therefore, writ petitions should not be lightly entertained in this class of case." (emphasis supplied) 32. The above principle has been reiterated and followed by this Court in several subsequent cases. 33. As already adverted to by us hereinabove, the facts of the present case did not deserve interference by the High Court in exercise of equitable jurisdiction under Article 226 of the Constitution. The respondent-petitioner before the High Court, was a responsible officer holding the post of Additional Director (Finance & Accounts). He was, thus, "gold collar" employee of the Commission. In the capacity of employee of the Commission, he was allotted a residential quarter. He reached the age of superannuation and retired after office hours of February 28, 1990. He was, therefore, required to vacate the quarter allotted to him by the Commission. The Commission, as per its policy, granted four months time to vacate. He, however, failed to do so. His prayer for continuing to occupy the quarter was duly considered and rejected on relevant and germane grounds. The residential accommodation constructed by him by taking loan at the concessional rate from the Commission was leased to Commission, but the possession of that quarter was restored to him taking into account the fact that he had retired and now he will have to vacate the quarter allotted to him by the Commission. In spite of that, he continued to occupy the quarter ignoring the warning by the Commission that if he would not vacate latest by June 30, 1990, penal rent would be charged from him. In our judgment, considering all these facts, the High Court was wholly unjustified in exercising extraordinary and equitable jurisdiction in favour of the petitioner - respondent herein - and on that ground also, the order passed by the High Court deserves to be set aside.
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### Explanation:
quarter for the period between July 1, 1990 and May 15, 1991.21. So far as the Payment of Gratuity Act is concerned, according to the appellant, the said Act was not applicable to the respondent. We are concerned with the position as in 1990. Clause (e) of Section 2 of the Act definedFrom the above definition, it is clear that a person can be said to be an "employee" if this wages did not exceed two thousand five hundred rupees per month. According to the Commission, the salary of the respondent was Rs.6800/approximately which was more than Rs.2500/and hence, he could not be held "employee" covered by the definition. The definition of "employee" was no doubt amended subsequently and the provision as to amount of wages had been deleted. But the amendment was made in 1994 and was not retrospective in nature and thus was not applicable in the case of the respondent who retired in 1990.23. As held by this Court in Union of India vs. All India Services Pensioners Association & another, (1988) 2 SCC 580 , an incumbent is entitled to those benefits as he could claim on the date of retirement. He could not claim any benefit prior to his appointment or subsequent to his retirement.24. It is well settled that gratuity is earned by an employee for long and meritorious service rendered by him. Gratuity is not paid to the employee gratuitously or merely as a matter of boon. It is paid to him for the service rendered by him to the employer [vide Garment Cleaning Works vs. Its Workmen, (1962) 1 SCR 711 ]. In Calcutta Insurance Co. Ltd. vs. Their Workmen, (1967) 2 SCR 596 , after considering earlier decisions, this Court observed that "long and meritorious service" must mean long and unbroken period of service meritorious to the end. As the period of service must be unbroken, so must the continuity of meritorious service be a condition for entitling the workman to gratuity. If a workman commits such misconduct as causes financial loss to his employer, the employer would under the general law have a right of action against the employee for the loss caused and making a provision for withholding payment of gratuity where such loss caused to the employer does not seem to aid to the harmonious employment of labourers or workmen. The Court proceeded to state that the misconduct may be such as to undermine the discipline in the workersa case in which it would be extremely difficult to assess the financial loss to the employer.The ratio in R. Kapoor, in our opinion, does not help the respondents as in that case, the claim for damages for unauthorized occupation against theemployee was "pending" and the proceedings were not finally disposed of. In the present case, the facts clearly reveal that the last day of lawful occupation of quarter by the respondent was June 30, 1990 and before that date, the appellant Commission had informed the respondent that his prayer for extension or retention of quarter had not been accepted and he should vacate by June 30, 1990. If he would not vacate the quarter, penal rent would be recovered from him. He did not challenge the action of not extending the period nor the recovery of penal rent. He, therefore, cannot make grievance against the action of the Commission.27. Similar is the case of Gorakhpur University. There retrial benefits were withheld to adjust amount due from the employee but "disputed" by him. This Court noted that the employee was keeping a quarter allotted to him and continued to occupy after retirement. It was, inter alia, observed by this Court that after the employee retired, his request and application as per practice for allotment of quarters in the name of his son who was also an employee in the University remained pending and no orders were passed thereon. Moreover, there were resolutions of the University to waive penal rent and such benefits were granted to other employees, but different treatment was shown to him which constituted "hostile discrimination" and the act was thus `unreasonable. Though the employee retired in 1990 and continued to keep the quarter up to 1996, the University did not choose to take any action to evict him. On the contrary, it acquiesced in his occupation "by accepting regularly the normal rent". Thus, there was lack of bona fides on the part of the University.As already adverted to by us hereinabove, the facts of the present case did not deserve interference by the High Court in exercise of equitable jurisdiction under Article 226 of the Constitution. Thebefore the Highwas a responsible officer holding the post of Additional Director (Finance & Accounts). He was, thus, "gold collar" employee of the Commission. In the capacity of employee of the Commission, he was allotted a residential quarter. He reached the age of superannuation and retired after office hours of February 28, 1990. He was, therefore, required to vacate the quarter allotted to him by the Commission. The Commission, as per its policy, granted four months time to vacate. He, however, failed to do so. His prayer for continuing to occupy the quarter was duly considered and rejected on relevant and germane grounds. The residential accommodation constructed by him by taking loan at the concessional rate from the Commission was leased to Commission, but the possession of that quarter was restored to him taking into account the fact that he had retired and now he will have to vacate the quarter allotted to him by the Commission. In spite of that, he continued to occupy the quarter ignoring the warning by the Commission that if he would not vacate latest by June 30, 1990, penal rent would be charged from him. In our judgment, considering all these facts, the High Court was wholly unjustified in exercising extraordinary and equitable jurisdiction in favour of the petitionerand on that ground also, the order passed by the High Court deserves to be set aside.
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MAHESHWARY HANDLING AGENCY PVT. LTD Vs. BOARD OF TRUSTEES OF KANDLA PORT TRUST AND ORS | Traffic Manager or any other officer on his behalf, failing which the occupation would be treated as unauthorised and the person in unauthorised occupation would be liable for penalty rent under Note 1. Thus, for authorised occupation and usage of space/area, permission from the Traffic Manager was required. Further, the Traffic Manager or an officer appointed on his behalf, was empowered to issue notice for vacation of space allotted to a user, failing which the use of the space was to be treated as unauthorised and the person in violation was liable to pay double the rent as penalty.12. Regulation 128 reads as follows: ?128. Quays, etc. to be under the authority of the Traffic Manager: The quays, sheds, gates and the land within the Port boundaries shall be in the charge of the Traffic Manager who shall direct and manage all operations connected with the landing and shipping of goods, and with their storage in the shed and in the open. He shall have proper custody of all goods lying in the Port and taken whatever steps he may consider necessary for the proper maintenance of order.? The Traffic Manager of the Port is obligated to control and manage the port operations, check obstructions to traffic movement and remove hinderance for efficient and proper use of berths, landing and shipping of goods and storage in the sheds and open area. Regulation 64 quoted in paragraph 9 above stipulates that loading and unloading of vessels was subject to control of the Traffic Manager who had the discretion to prohibit discharge of goods which are likely to obstruct traffic, cause congestion or hinder convenient movement at the Port.13. It is clear from the Notes that the Notification had empowered and left it to the Traffic Manager to deal with the question of unauthorised occupation, including the time limits or period during which the goods could be authorised to be stored. The Notification had not specified when and in what circumstances use of the storage area would be treated as unauthorised as this was left to the wisdom of the Traffic Manager who was the person in-charge and responsible for efficient and proper functioning of the port operations and mandated to take the need based decisions on the basis of prevalent facts and circumstances. This latitude was necessary as the schedule of rates fixed vide Notification dated 4 th November, 1993 were applicable till a new Notification or amendment was made by following the procedure prescribed vide Section 52 of the Port Trusts Act, which would require approval from the Central Government.14. Prescribing different slabs or rates for storage of cargo for different periods was meant to fix rates for the rent payable and not to deny or curtail the power of the Traffic Manager to authorise and permit use of sheds and space for storage of cargo/containers. As per the Notes, the Traffic Manager, on an application by the owners or their agents was to grant permission for authorised storage. Storage without the permission or contrary to the permission was unauthorised. Further, the space allotted was to be vacated on notice from the Traffic Manager. On failure to comply, and vacate the space, the use was treated as unauthorised occupation and the person in default was liable to pay double the rent for unauthorised use.15. It is obvious that the first portion of the Notification prescribing escalating rates for use of open area and sheds did not vest any right to occupy such space for unlimited period of time. This, we hold, is the exact purport of the Notes, which have been read harmoniously with the first portion of the Notification. The Traffic Manager had authority and discretion for allotment of space for storage on rent and to withdraw allotment of space depending on the availability and to ensure that the port operations were not hindered and obstructed due to congestion and shortage of space. We, therefore, would reject the contention that the Traffic Manager was not competent to fix time limit for storage. The contention is unacceptable and would be contrary to the Notes and the powers vested and given under the Regulations to the Traffic Manager.16. We are in this case not required to examine whether delegation of powers to the Traffic Manager in the Notification was excess or invalid, for this issue or contention has not been raised. As noted earlier, validity of the Notification is not questioned and under challenge. Read in this manner, we do not think levy of penalty for unauthorised occupation of the space for period beyond sixty days of storage as fixed vide the impugned circular would be illegal and invalid. In fact, it would be in conformity and in consonance with the Notification and in particular Notes 1, 4 and 5 thereof. The circular had brought about uniformity, clarity and transparency in the use of storage facilities at the Kandla Port. The circular though issued on 31 st August, 1998 was made effective and applicable from 1 st October, 1998. Therefore, the parties were given time to take steps to avoid the usage of the storage facility from being declared as unauthorised.17. Other contention of the appellant as to absence of data indicating the details of congestion is an afterthought as this contention was not raised and argued before the High Court. The impugned circular specifically recorded that there was congestion at the Port which had necessitated issuance of the circular stipulating that storage of goods beyond the period of sixty days would be treated as unauthorised occupation. The said circular ensured uniformity and equal treatment without discretion as upper time limit of sixty days was prescribed for storage of goods failing which penalty was payable. Period of sixty days is sufficient and long and cannot be termed as unreasonable and violating Article 14 of the Constitution. The aforesaid reasoning would take care of the other arguments raised by the appellants, which we would reiterate were not argued before the High Court. | 0[ds]10. We have already quoted the scales fixed by the Notification dated 4 th November, 1993 as well as the Notes in the Notification. This Notification was not under challenge in the Special Civil Application or in appeal filed before the High Court. The Notification is not under challenge before us. The appellant also accepts that they were liable to pay the scales Civil Appeal No. 5277 of 2 specified in the Notification till the new tariff was notified pursuant to the constitution of the Tariff Authority, which it is accepted was notified and applicable with effect from 29 th January, 2001. Therefore, for the period prior to 29 th January, 2001, the appellant would be liable to pay tariff as per the scales and terms of the Notification dated 4 th November, 1993.In our opinion, the answer to the question would be in favour of the first and second respondents. The Notification dated 4 th November, 1993 had specified rent/usage charges for open space, covered space, containers, office accommodation, etc., which charges were payable dependent upon the space and the length of time used for storage. Note 1 to the Notification stated that a person wanting to use the rental space was required to make an application for storage of goods to the Traffic Manager. It was also specified that any unauthorised occupation of rented space shall make the person liable to pay double the rent as penalty. Note 1 did not specify when and in what circumstances occupation of the rented space would be treated as unauthorised occupation. Note 2 had specified that storage charges would be paid in advance and penal interest @ 18% would be payable on the amount due and not paid from the date when the amount had become due till the date of actual payment. Note 4 had specified that the space cannot be allotted without permission of the Traffic Manager of the Port. Note 5 had stipulated that the space allotted would be vacated on notice from the Traffic Manager or any other officer on his behalf, failing which the occupation would be treated as unauthorised and the person in unauthorised occupation would be liable for penalty rent under Note 1. Thus, for authorised occupation and usage of space/area, permission from the Traffic Manager was required. Further, the Traffic Manager or an officer appointed on his behalf, was empowered to issue notice for vacation of space allotted to a user, failing which the use of the space was to be treated as unauthorised and the person in violation was liable to pay double the rent as penalty.It is clear from the Notes that the Notification had empowered and left it to the Traffic Manager to deal with the question of unauthorised occupation, including the time limits or period during which the goods could be authorised to be stored. The Notification had not specified when and in what circumstances use of the storage area would be treated as unauthorised as this was left to the wisdom of the Traffic Manager who was the person in-charge and responsible for efficient and proper functioning of the port operations and mandated to take the need based decisions on the basis of prevalent facts and circumstances. This latitude was necessary as the schedule of rates fixed vide Notification dated 4 th November, 1993 were applicable till a new Notification or amendment was made by following the procedure prescribed vide Section 52 of the Port Trusts Act, which would require approval from the Central Government.14. Prescribing different slabs or rates for storage of cargo for different periods was meant to fix rates for the rent payable and not to deny or curtail the power of the Traffic Manager to authorise and permit use of sheds and space for storage of cargo/containers. As per the Notes, the Traffic Manager, on an application by the owners or their agents was to grant permission for authorised storage. Storage without the permission or contrary to the permission was unauthorised. Further, the space allotted was to be vacated on notice from the Traffic Manager. On failure to comply, and vacate the space, the use was treated as unauthorised occupation and the person in default was liable to pay double the rent for unauthorised use.15. It is obvious that the first portion of the Notification prescribing escalating rates for use of open area and sheds did not vest any right to occupy such space for unlimited period of time. This, we hold, is the exact purport of the Notes, which have been read harmoniously with the first portion of the Notification. The Traffic Manager had authority and discretion for allotment of space for storage on rent and to withdraw allotment of space depending on the availability and to ensure that the port operations were not hindered and obstructed due to congestion and shortage of space. We, therefore, would reject the contention that the Traffic Manager was not competent to fix time limit for storage. The contention is unacceptable and would be contrary to the Notes and the powers vested and given under the Regulations to the Traffic Manager.16. We are in this case not required to examine whether delegation of powers to the Traffic Manager in the Notification was excess or invalid, for this issue or contention has not been raised. As noted earlier, validity of the Notification is not questioned and under challenge. Read in this manner, we do not think levy of penalty for unauthorised occupation of the space for period beyond sixty days of storage as fixed vide the impugned circular would be illegal and invalid. In fact, it would be in conformity and in consonance with the Notification and in particular Notes 1, 4 and 5 thereof. The circular had brought about uniformity, clarity and transparency in the use of storage facilities at the Kandla Port. The circular though issued on 31 st August, 1998 was made effective and applicable from 1 st October, 1998. Therefore, the parties were given time to take steps to avoid the usage of the storage facility from being declared as unauthorised.17. Other contention of the appellant as to absence of data indicating the details of congestion is an afterthought as this contention was not raised and argued before the High Court. The impugned circular specifically recorded that there was congestion at the Port which had necessitated issuance of the circular stipulating that storage of goods beyond the period of sixty days would be treated as unauthorised occupation. The said circular ensured uniformity and equal treatment without discretion as upper time limit of sixty days was prescribed for storage of goods failing which penalty was payable. Period of sixty days is sufficient and long and cannot be termed as unreasonable and violating Article 14 of the Constitution. The aforesaid reasoning would take care of the other arguments raised by the appellants, which we would reiterate were not argued before the High Court. | 0 | 3,410 | 1,247 | ### 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:
Traffic Manager or any other officer on his behalf, failing which the occupation would be treated as unauthorised and the person in unauthorised occupation would be liable for penalty rent under Note 1. Thus, for authorised occupation and usage of space/area, permission from the Traffic Manager was required. Further, the Traffic Manager or an officer appointed on his behalf, was empowered to issue notice for vacation of space allotted to a user, failing which the use of the space was to be treated as unauthorised and the person in violation was liable to pay double the rent as penalty.12. Regulation 128 reads as follows: ?128. Quays, etc. to be under the authority of the Traffic Manager: The quays, sheds, gates and the land within the Port boundaries shall be in the charge of the Traffic Manager who shall direct and manage all operations connected with the landing and shipping of goods, and with their storage in the shed and in the open. He shall have proper custody of all goods lying in the Port and taken whatever steps he may consider necessary for the proper maintenance of order.? The Traffic Manager of the Port is obligated to control and manage the port operations, check obstructions to traffic movement and remove hinderance for efficient and proper use of berths, landing and shipping of goods and storage in the sheds and open area. Regulation 64 quoted in paragraph 9 above stipulates that loading and unloading of vessels was subject to control of the Traffic Manager who had the discretion to prohibit discharge of goods which are likely to obstruct traffic, cause congestion or hinder convenient movement at the Port.13. It is clear from the Notes that the Notification had empowered and left it to the Traffic Manager to deal with the question of unauthorised occupation, including the time limits or period during which the goods could be authorised to be stored. The Notification had not specified when and in what circumstances use of the storage area would be treated as unauthorised as this was left to the wisdom of the Traffic Manager who was the person in-charge and responsible for efficient and proper functioning of the port operations and mandated to take the need based decisions on the basis of prevalent facts and circumstances. This latitude was necessary as the schedule of rates fixed vide Notification dated 4 th November, 1993 were applicable till a new Notification or amendment was made by following the procedure prescribed vide Section 52 of the Port Trusts Act, which would require approval from the Central Government.14. Prescribing different slabs or rates for storage of cargo for different periods was meant to fix rates for the rent payable and not to deny or curtail the power of the Traffic Manager to authorise and permit use of sheds and space for storage of cargo/containers. As per the Notes, the Traffic Manager, on an application by the owners or their agents was to grant permission for authorised storage. Storage without the permission or contrary to the permission was unauthorised. Further, the space allotted was to be vacated on notice from the Traffic Manager. On failure to comply, and vacate the space, the use was treated as unauthorised occupation and the person in default was liable to pay double the rent for unauthorised use.15. It is obvious that the first portion of the Notification prescribing escalating rates for use of open area and sheds did not vest any right to occupy such space for unlimited period of time. This, we hold, is the exact purport of the Notes, which have been read harmoniously with the first portion of the Notification. The Traffic Manager had authority and discretion for allotment of space for storage on rent and to withdraw allotment of space depending on the availability and to ensure that the port operations were not hindered and obstructed due to congestion and shortage of space. We, therefore, would reject the contention that the Traffic Manager was not competent to fix time limit for storage. The contention is unacceptable and would be contrary to the Notes and the powers vested and given under the Regulations to the Traffic Manager.16. We are in this case not required to examine whether delegation of powers to the Traffic Manager in the Notification was excess or invalid, for this issue or contention has not been raised. As noted earlier, validity of the Notification is not questioned and under challenge. Read in this manner, we do not think levy of penalty for unauthorised occupation of the space for period beyond sixty days of storage as fixed vide the impugned circular would be illegal and invalid. In fact, it would be in conformity and in consonance with the Notification and in particular Notes 1, 4 and 5 thereof. The circular had brought about uniformity, clarity and transparency in the use of storage facilities at the Kandla Port. The circular though issued on 31 st August, 1998 was made effective and applicable from 1 st October, 1998. Therefore, the parties were given time to take steps to avoid the usage of the storage facility from being declared as unauthorised.17. Other contention of the appellant as to absence of data indicating the details of congestion is an afterthought as this contention was not raised and argued before the High Court. The impugned circular specifically recorded that there was congestion at the Port which had necessitated issuance of the circular stipulating that storage of goods beyond the period of sixty days would be treated as unauthorised occupation. The said circular ensured uniformity and equal treatment without discretion as upper time limit of sixty days was prescribed for storage of goods failing which penalty was payable. Period of sixty days is sufficient and long and cannot be termed as unreasonable and violating Article 14 of the Constitution. The aforesaid reasoning would take care of the other arguments raised by the appellants, which we would reiterate were not argued before the High Court.
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1993 had specified rent/usage charges for open space, covered space, containers, office accommodation, etc., which charges were payable dependent upon the space and the length of time used for storage. Note 1 to the Notification stated that a person wanting to use the rental space was required to make an application for storage of goods to the Traffic Manager. It was also specified that any unauthorised occupation of rented space shall make the person liable to pay double the rent as penalty. Note 1 did not specify when and in what circumstances occupation of the rented space would be treated as unauthorised occupation. Note 2 had specified that storage charges would be paid in advance and penal interest @ 18% would be payable on the amount due and not paid from the date when the amount had become due till the date of actual payment. Note 4 had specified that the space cannot be allotted without permission of the Traffic Manager of the Port. Note 5 had stipulated that the space allotted would be vacated on notice from the Traffic Manager or any other officer on his behalf, failing which the occupation would be treated as unauthorised and the person in unauthorised occupation would be liable for penalty rent under Note 1. Thus, for authorised occupation and usage of space/area, permission from the Traffic Manager was required. Further, the Traffic Manager or an officer appointed on his behalf, was empowered to issue notice for vacation of space allotted to a user, failing which the use of the space was to be treated as unauthorised and the person in violation was liable to pay double the rent as penalty.It is clear from the Notes that the Notification had empowered and left it to the Traffic Manager to deal with the question of unauthorised occupation, including the time limits or period during which the goods could be authorised to be stored. The Notification had not specified when and in what circumstances use of the storage area would be treated as unauthorised as this was left to the wisdom of the Traffic Manager who was the person in-charge and responsible for efficient and proper functioning of the port operations and mandated to take the need based decisions on the basis of prevalent facts and circumstances. This latitude was necessary as the schedule of rates fixed vide Notification dated 4 th November, 1993 were applicable till a new Notification or amendment was made by following the procedure prescribed vide Section 52 of the Port Trusts Act, which would require approval from the Central Government.14. Prescribing different slabs or rates for storage of cargo for different periods was meant to fix rates for the rent payable and not to deny or curtail the power of the Traffic Manager to authorise and permit use of sheds and space for storage of cargo/containers. As per the Notes, the Traffic Manager, on an application by the owners or their agents was to grant permission for authorised storage. Storage without the permission or contrary to the permission was unauthorised. Further, the space allotted was to be vacated on notice from the Traffic Manager. On failure to comply, and vacate the space, the use was treated as unauthorised occupation and the person in default was liable to pay double the rent for unauthorised use.15. It is obvious that the first portion of the Notification prescribing escalating rates for use of open area and sheds did not vest any right to occupy such space for unlimited period of time. This, we hold, is the exact purport of the Notes, which have been read harmoniously with the first portion of the Notification. The Traffic Manager had authority and discretion for allotment of space for storage on rent and to withdraw allotment of space depending on the availability and to ensure that the port operations were not hindered and obstructed due to congestion and shortage of space. We, therefore, would reject the contention that the Traffic Manager was not competent to fix time limit for storage. The contention is unacceptable and would be contrary to the Notes and the powers vested and given under the Regulations to the Traffic Manager.16. We are in this case not required to examine whether delegation of powers to the Traffic Manager in the Notification was excess or invalid, for this issue or contention has not been raised. As noted earlier, validity of the Notification is not questioned and under challenge. Read in this manner, we do not think levy of penalty for unauthorised occupation of the space for period beyond sixty days of storage as fixed vide the impugned circular would be illegal and invalid. In fact, it would be in conformity and in consonance with the Notification and in particular Notes 1, 4 and 5 thereof. The circular had brought about uniformity, clarity and transparency in the use of storage facilities at the Kandla Port. The circular though issued on 31 st August, 1998 was made effective and applicable from 1 st October, 1998. Therefore, the parties were given time to take steps to avoid the usage of the storage facility from being declared as unauthorised.17. Other contention of the appellant as to absence of data indicating the details of congestion is an afterthought as this contention was not raised and argued before the High Court. The impugned circular specifically recorded that there was congestion at the Port which had necessitated issuance of the circular stipulating that storage of goods beyond the period of sixty days would be treated as unauthorised occupation. The said circular ensured uniformity and equal treatment without discretion as upper time limit of sixty days was prescribed for storage of goods failing which penalty was payable. Period of sixty days is sufficient and long and cannot be termed as unreasonable and violating Article 14 of the Constitution. The aforesaid reasoning would take care of the other arguments raised by the appellants, which we would reiterate were not argued before the High Court.
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M/S. MITRA GUHA BUILDERS (INDIA) COMPANY Vs. OIL AND NATURAL GAS CORPORATION LIMITED | present case, the parties themselves have agreed that the decision of the Superintending Engineer in levying compensation is final and the same is an excepted matter and the determination shall be only by the Superintending Engineer and the correctness of his decision cannot be called in question in the arbitration proceedings and the remedy if any, will arise in the ordinary course of law. 22. The learned counsel for the appellant has relied upon Bharat Sanchar Nigam Limited and another v. Motorola India (P) Ltd. (2009) 2 SCC 337 and by referring to Clause 16(2) in the concerned agreement submitted that for quantification of liquidated damages, first of all, there has to be a delay and for ascertaining as to who was responsible for the delay, such an issue will be within the jurisdiction of the arbitrator. The learned ASG however, submitted that in the present case, Clause 2 of the agreement is not only a mechanism for quantification of liquidated damages, but Clause 2 also makes the contractor liable for payment of the same and in terms of Clause 2 of the agreement, the decision of the Superintending Engineer is final and the present case is therefore, distinguishable from BSNLs case. 23. As rightly contended by the learned ASG, in BSNLs case, Clause 16(2) of the agreement does not create any kind of liability to pay liquidated damages; but only provides for entitlement of BSNL to collect the damages in case of any delay in supply on the part of the supplier under Clause 16(2). While interpreting Clause 16(2) and Clause 21 of the contract which was under consideration in BSNLs case, in paras (23) and (26), the Supreme Court held as under:- 23. The question to be decided in this case is whether the liability of the respondent to pay liquidated damages and the entitlement of the appellants, to collect the same from the respondent is an excepted matter for the purpose of Clause 20.1 of the general conditions of contract. The High Court has pointed out correctly that the authority of the purchaser (BSNL) to quantify the liquidated damages payable by the supplier Motorola arises once it is found that the supplier is liable to pay the damages claimed. The decision contemplated under Clause 16.2 of the agreement is the decision regarding the quantification of the liquidated damages and not any decision regarding the fixing of the liability of the supplier. It is necessary as a condition precedent to find that there has been a delay on the part of the supplier in discharging his obligation for delivery under the agreement. ……….. 26. Quantification of liquidated damages may be an excepted matter as argued by the appellants, under Clause 16.2, but for the levy of liquidated damages, there has to be a delay in the first place. In the present case, there is a clear dispute as to the fact that whether there was any delay on the part of the respondent. For this reason, it cannot be accepted that the appointment of the arbitrator by the High Court was unwarranted in this case. Even if the quantification was excepted as argued by the appellants under Clause 16.2, this will only have effect when the dispute as to the delay is ascertained. Clause 16.2 cannot be treated as an excepted matter because of the fact that it does not provide for any adjudicatory process for decision on a question, dispute or difference, which is the condition precedent to lead to the stage of quantification of damages. 24. In BSNLs case, Clause 16 provided for entitlement of the party to recover liquidated damages. In Clause 16(2), the phrases used value of delayed quantity and for each week of delay clearly show that it is necessary to find out whether there has been delay on the part of the supplier in discharging his obligation. Thus, in BSNLs case, in determining whether there is delay or not, a process of adjudication is envisaged. Per contra, in the present case, Clause 2 of the agreement is a complete mechanism for determination of liability. The right to levy damages for delay is exclusively conferred upon the Superintending Engineer and Clause 2 of the present agreement is a complete mechanism for determination of liability and when such compensation is levied by the Superintending Engineer, the same is final and binding. The parties have also consciously agreed that for the delay caused, the Superintending Engineer shall levy the compensation of the amount equal to half per cent and the said amount shall not exceed from 10% of the cost of the work and the determination by the Superintending Engineer is final and cannot be the subject matter of arbitration. In claim No.6, the prayer sought for by the contractor to declare the compensation levied by the Superintending Engineer as illegal is contradictory to the agreed terms between the parties. So far as the liquidated damages determined and levied, by virtue of Clause 2, is out of the purview of the arbitration especially in view of the fact that under the very same clause, the parties have agreed that the decision of the Superintending Engineer shall be final. 25. Learned Single Judge erred in proceeding under the presumptive footing that the compensation levied by the Superintending Engineer was in the nature of penalty. It was actually levy of liquidated damages/compensation in terms of Clause 2 of the agreement. Levy of compensation of Rs.32,79,828/- in Arbitration Case No.297A of 2002 and Rs.42,08,940/- in Arbitration Case No.297 of 2002 in terms of Clause 2 of the agreement is final and the same could not have been the subject matter of arbitration. Applying the ratio of Vishwanath Sood, the Division Bench of the High Court rightly set aside the order of the learned Arbitrator with regard to claim No.6 by holding that levy of liquidated damages/compensation is adjustable against the final bill payable to the appellant. The impugned judgment does not therefore, suffer from any infirmity warranting interference. | 0[ds]14. The learned Single Judge, in our view, failed to note the implication of Clause 2 of the contract and also various correspondences between the parties, while affirming the award passed by the learned Arbitrator. In terms of Clause 2 of the agreement dated 05.02.1996 between the parties, the contractor is to proceed with the work with due diligence throughout the contract period. In case of delay or failure to ensure good progress during execution of the work, Clause 2 of the agreement provides for determination/quantification of compensation for delay or certain inactions, on the part of the contractor. In terms of Clause 2 of the agreement, the Superintending Engineer shall assess and quantify the compensation. By the terms of the agreement, the parties have consciously agreed that in case the contractor fails to comply with the conditions and complete the work with due diligence, the Superintending Engineer may decide the compensation in terms of Clause 2 of the agreementA reading of Clause 2 makes it clear that the Superintending Engineer has been conferred with not only a right to levy compensation; but it also provides a mechanism for determination of the liability/quantum of compensation. The very Clause 2 itself would show that such a decision taken by the Superintending Engineer shall be final. The finality clause in the contract in terms of Clause 2 makes the intention of the parties very clear that there cannot be any further dispute on the said issue between the parties; much less before the arbitratorThe intention of the parties to exclude some of the decisions of the Superintending Engineer from the purview of arbitration is clearly seen from the abovesaid clause. Claim No.6 made by the appellant is to declare that the penalty imposed by ONGC under Clause 2 was illegal and unwarranted and the amount withheld by ONGC was payable to the appellant. The very prayer to declare the amount levied by the Superintending Engineer as illegal is against the tenor of the terms of the contract (Clause 2) between the parties. By virtue of the finality clause in the contract, any decision taken by the Superintending Engineer in levying compensation cannot be referred to an arbitrator. The parties have consciously agreed to have finality to the decision of the Superintending Engineer and the same cannot be frustrated by challenging the same as illegal. Any other meaning to the finality clause in the contract and allowing further adjudication by another authority would make the agreed Clause 2 and Clause 25 of the agreement meaningless and redundant17. As held by the Division Bench of the High Court, whether there was delay in completion of work and the levy of liquated damages, could not have been determined by the arbitrator. Vide letters dated 08.12.1999, 09.12.1999, 17.12.1999, 11.02.2000 and 17.04.2000, ONGC called upon the respondent/contractor to remove the defects failing which it would get the defects remedied at his cost. According to ONGC, the completion time was extended without prejudice to the right of ONGC to recover compensation in accordance with Clause 2 of the agreement. The contention of ONGC is that by the letter dated 15.05.2001, the contractor was put on notice that in exercise of the power conferred on the Superintending Engineer under Clause 2, the contractor is liable to pay 10% of the contract value by way of compensation. The contractor was informed by the said letter dated 15.05.2001 that the compensation is levied on him for the period of 39 weeks at half per cent per week subject to maximum of 10% of the contract value and that the actual amount of compensation shall be worked out on checking the final bill and the same shall be recovered by ONGC from the final bill. By the subsequent letter dated 25.05.2001, the claimant was informed that the final bill is ready and the claimant was required to reconcile the final bill after adjusting the compensation18. A reading of the other terms of the contract would further indicate that under Clauses 13 and 14 of the agreement, the parties have agreed for payment of compensation and non-payment of compensation in certain situations. Significantly, Clauses 13 and 14 of the agreement do not have any finality clause which indicates that any dispute arising out of such clauses may be a dispute referable to arbitration. However, in respect of levy of compensation for the delay, Clause 2 of the agreement specifically makes the decision of the Superintending Engineer, final. The entire contract between the parties and the terms thereon have to be read as a whole to decide the rights and liabilities of the parties arising out of the contract. In claim No.6, the contractor has sought for declaration that the penalty under Clause 2 imposed by ONGC was illegal and unwarranted and the amount withheld by ONGC was payable to the contractor with interest @ 24%. Claim No.6 sought for by the contractor is clearly in violation of Clause 2 of the agreement between the parties, in and by which, the parties have agreed that the decision taken by the Superintending Engineer levying compensation shall be final. The finality clause in the contract cannot therefore be frustrated by calling upon the arbitrator to decide on the correctness of levy of compensation by the Superintending EngineerOnce the parties have decided that certain matters are to be decided by the Superintending Engineer and his decision would be final, the same cannot be the subject matter of arbitrationIn the present case, the parties themselves have agreed that the decision of the Superintending Engineer in levying compensation is final and the same is an excepted matter and the determination shall be only by the Superintending Engineer and the correctness of his decision cannot be called in question in the arbitration proceedings and the remedy if any, will arise in the ordinary course of law23. As rightly contended by the learned ASG, in BSNLs case, Clause 16(2) of the agreement does not create any kind of liability to pay liquidated damages; but only provides for entitlement of BSNL to collect the damages in case of any delay in supply on the part of the supplier under Clause 16(2)24. In BSNLs case, Clause 16 provided for entitlement of the party to recover liquidated damages. In Clause 16(2), the phrases used value of delayed quantity and for each week of delay clearly show that it is necessary to find out whether there has been delay on the part of the supplier in discharging his obligation. Thus, in BSNLs case, in determining whether there is delay or not, a process of adjudication is envisaged. Per contra, in the present case, Clause 2 of the agreement is a complete mechanism for determination of liability. The right to levy damages for delay is exclusively conferred upon the Superintending Engineer and Clause 2 of the present agreement is a complete mechanism for determination of liability and when such compensation is levied by the Superintending Engineer, the same is final and binding. The parties have also consciously agreed that for the delay caused, the Superintending Engineer shall levy the compensation of the amount equal to half per cent and the said amount shall not exceed from 10% of the cost of the work and the determination by the Superintending Engineer is final and cannot be the subject matter of arbitration. In claim No.6, the prayer sought for by the contractor to declare the compensation levied by the Superintending Engineer as illegal is contradictory to the agreed terms between the parties. So far as the liquidated damages determined and levied, by virtue of Clause 2, is out of the purview of the arbitration especially in view of the fact that under the very same clause, the parties have agreed that the decision of the Superintending Engineer shall be final25. Learned Single Judge erred in proceeding under the presumptive footing that the compensation levied by the Superintending Engineer was in the nature of penalty. It was actually levy of liquidated damages/compensation in terms of Clause 2 of the agreement. Levy of compensation of Rs.32,79,828/- in Arbitration Case No.297A of 2002 and Rs.42,08,940/- in Arbitration Case No.297 of 2002 in terms of Clause 2 of the agreement is final and the same could not have been the subject matter of arbitration. Applying the ratio of Vishwanath Sood, the Division Bench of the High Court rightly set aside the order of the learned Arbitrator with regard to claim No.6 by holding that levy of liquidated damages/compensation is adjustable against the final bill payable to the appellant. The impugned judgment does not therefore, suffer from any infirmity warranting interference. | 0 | 6,032 | 1,556 | ### 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:
present case, the parties themselves have agreed that the decision of the Superintending Engineer in levying compensation is final and the same is an excepted matter and the determination shall be only by the Superintending Engineer and the correctness of his decision cannot be called in question in the arbitration proceedings and the remedy if any, will arise in the ordinary course of law. 22. The learned counsel for the appellant has relied upon Bharat Sanchar Nigam Limited and another v. Motorola India (P) Ltd. (2009) 2 SCC 337 and by referring to Clause 16(2) in the concerned agreement submitted that for quantification of liquidated damages, first of all, there has to be a delay and for ascertaining as to who was responsible for the delay, such an issue will be within the jurisdiction of the arbitrator. The learned ASG however, submitted that in the present case, Clause 2 of the agreement is not only a mechanism for quantification of liquidated damages, but Clause 2 also makes the contractor liable for payment of the same and in terms of Clause 2 of the agreement, the decision of the Superintending Engineer is final and the present case is therefore, distinguishable from BSNLs case. 23. As rightly contended by the learned ASG, in BSNLs case, Clause 16(2) of the agreement does not create any kind of liability to pay liquidated damages; but only provides for entitlement of BSNL to collect the damages in case of any delay in supply on the part of the supplier under Clause 16(2). While interpreting Clause 16(2) and Clause 21 of the contract which was under consideration in BSNLs case, in paras (23) and (26), the Supreme Court held as under:- 23. The question to be decided in this case is whether the liability of the respondent to pay liquidated damages and the entitlement of the appellants, to collect the same from the respondent is an excepted matter for the purpose of Clause 20.1 of the general conditions of contract. The High Court has pointed out correctly that the authority of the purchaser (BSNL) to quantify the liquidated damages payable by the supplier Motorola arises once it is found that the supplier is liable to pay the damages claimed. The decision contemplated under Clause 16.2 of the agreement is the decision regarding the quantification of the liquidated damages and not any decision regarding the fixing of the liability of the supplier. It is necessary as a condition precedent to find that there has been a delay on the part of the supplier in discharging his obligation for delivery under the agreement. ……….. 26. Quantification of liquidated damages may be an excepted matter as argued by the appellants, under Clause 16.2, but for the levy of liquidated damages, there has to be a delay in the first place. In the present case, there is a clear dispute as to the fact that whether there was any delay on the part of the respondent. For this reason, it cannot be accepted that the appointment of the arbitrator by the High Court was unwarranted in this case. Even if the quantification was excepted as argued by the appellants under Clause 16.2, this will only have effect when the dispute as to the delay is ascertained. Clause 16.2 cannot be treated as an excepted matter because of the fact that it does not provide for any adjudicatory process for decision on a question, dispute or difference, which is the condition precedent to lead to the stage of quantification of damages. 24. In BSNLs case, Clause 16 provided for entitlement of the party to recover liquidated damages. In Clause 16(2), the phrases used value of delayed quantity and for each week of delay clearly show that it is necessary to find out whether there has been delay on the part of the supplier in discharging his obligation. Thus, in BSNLs case, in determining whether there is delay or not, a process of adjudication is envisaged. Per contra, in the present case, Clause 2 of the agreement is a complete mechanism for determination of liability. The right to levy damages for delay is exclusively conferred upon the Superintending Engineer and Clause 2 of the present agreement is a complete mechanism for determination of liability and when such compensation is levied by the Superintending Engineer, the same is final and binding. The parties have also consciously agreed that for the delay caused, the Superintending Engineer shall levy the compensation of the amount equal to half per cent and the said amount shall not exceed from 10% of the cost of the work and the determination by the Superintending Engineer is final and cannot be the subject matter of arbitration. In claim No.6, the prayer sought for by the contractor to declare the compensation levied by the Superintending Engineer as illegal is contradictory to the agreed terms between the parties. So far as the liquidated damages determined and levied, by virtue of Clause 2, is out of the purview of the arbitration especially in view of the fact that under the very same clause, the parties have agreed that the decision of the Superintending Engineer shall be final. 25. Learned Single Judge erred in proceeding under the presumptive footing that the compensation levied by the Superintending Engineer was in the nature of penalty. It was actually levy of liquidated damages/compensation in terms of Clause 2 of the agreement. Levy of compensation of Rs.32,79,828/- in Arbitration Case No.297A of 2002 and Rs.42,08,940/- in Arbitration Case No.297 of 2002 in terms of Clause 2 of the agreement is final and the same could not have been the subject matter of arbitration. Applying the ratio of Vishwanath Sood, the Division Bench of the High Court rightly set aside the order of the learned Arbitrator with regard to claim No.6 by holding that levy of liquidated damages/compensation is adjustable against the final bill payable to the appellant. The impugned judgment does not therefore, suffer from any infirmity warranting interference.
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0
### Explanation:
in completion of work and the levy of liquated damages, could not have been determined by the arbitrator. Vide letters dated 08.12.1999, 09.12.1999, 17.12.1999, 11.02.2000 and 17.04.2000, ONGC called upon the respondent/contractor to remove the defects failing which it would get the defects remedied at his cost. According to ONGC, the completion time was extended without prejudice to the right of ONGC to recover compensation in accordance with Clause 2 of the agreement. The contention of ONGC is that by the letter dated 15.05.2001, the contractor was put on notice that in exercise of the power conferred on the Superintending Engineer under Clause 2, the contractor is liable to pay 10% of the contract value by way of compensation. The contractor was informed by the said letter dated 15.05.2001 that the compensation is levied on him for the period of 39 weeks at half per cent per week subject to maximum of 10% of the contract value and that the actual amount of compensation shall be worked out on checking the final bill and the same shall be recovered by ONGC from the final bill. By the subsequent letter dated 25.05.2001, the claimant was informed that the final bill is ready and the claimant was required to reconcile the final bill after adjusting the compensation18. A reading of the other terms of the contract would further indicate that under Clauses 13 and 14 of the agreement, the parties have agreed for payment of compensation and non-payment of compensation in certain situations. Significantly, Clauses 13 and 14 of the agreement do not have any finality clause which indicates that any dispute arising out of such clauses may be a dispute referable to arbitration. However, in respect of levy of compensation for the delay, Clause 2 of the agreement specifically makes the decision of the Superintending Engineer, final. The entire contract between the parties and the terms thereon have to be read as a whole to decide the rights and liabilities of the parties arising out of the contract. In claim No.6, the contractor has sought for declaration that the penalty under Clause 2 imposed by ONGC was illegal and unwarranted and the amount withheld by ONGC was payable to the contractor with interest @ 24%. Claim No.6 sought for by the contractor is clearly in violation of Clause 2 of the agreement between the parties, in and by which, the parties have agreed that the decision taken by the Superintending Engineer levying compensation shall be final. The finality clause in the contract cannot therefore be frustrated by calling upon the arbitrator to decide on the correctness of levy of compensation by the Superintending EngineerOnce the parties have decided that certain matters are to be decided by the Superintending Engineer and his decision would be final, the same cannot be the subject matter of arbitrationIn the present case, the parties themselves have agreed that the decision of the Superintending Engineer in levying compensation is final and the same is an excepted matter and the determination shall be only by the Superintending Engineer and the correctness of his decision cannot be called in question in the arbitration proceedings and the remedy if any, will arise in the ordinary course of law23. As rightly contended by the learned ASG, in BSNLs case, Clause 16(2) of the agreement does not create any kind of liability to pay liquidated damages; but only provides for entitlement of BSNL to collect the damages in case of any delay in supply on the part of the supplier under Clause 16(2)24. In BSNLs case, Clause 16 provided for entitlement of the party to recover liquidated damages. In Clause 16(2), the phrases used value of delayed quantity and for each week of delay clearly show that it is necessary to find out whether there has been delay on the part of the supplier in discharging his obligation. Thus, in BSNLs case, in determining whether there is delay or not, a process of adjudication is envisaged. Per contra, in the present case, Clause 2 of the agreement is a complete mechanism for determination of liability. The right to levy damages for delay is exclusively conferred upon the Superintending Engineer and Clause 2 of the present agreement is a complete mechanism for determination of liability and when such compensation is levied by the Superintending Engineer, the same is final and binding. The parties have also consciously agreed that for the delay caused, the Superintending Engineer shall levy the compensation of the amount equal to half per cent and the said amount shall not exceed from 10% of the cost of the work and the determination by the Superintending Engineer is final and cannot be the subject matter of arbitration. In claim No.6, the prayer sought for by the contractor to declare the compensation levied by the Superintending Engineer as illegal is contradictory to the agreed terms between the parties. So far as the liquidated damages determined and levied, by virtue of Clause 2, is out of the purview of the arbitration especially in view of the fact that under the very same clause, the parties have agreed that the decision of the Superintending Engineer shall be final25. Learned Single Judge erred in proceeding under the presumptive footing that the compensation levied by the Superintending Engineer was in the nature of penalty. It was actually levy of liquidated damages/compensation in terms of Clause 2 of the agreement. Levy of compensation of Rs.32,79,828/- in Arbitration Case No.297A of 2002 and Rs.42,08,940/- in Arbitration Case No.297 of 2002 in terms of Clause 2 of the agreement is final and the same could not have been the subject matter of arbitration. Applying the ratio of Vishwanath Sood, the Division Bench of the High Court rightly set aside the order of the learned Arbitrator with regard to claim No.6 by holding that levy of liquidated damages/compensation is adjustable against the final bill payable to the appellant. The impugned judgment does not therefore, suffer from any infirmity warranting interference.
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Jeevan Chandrabhan Idnani & Another Vs. Divisional Commissioner, Konkan Bhavan & Others | Section 5 may not be necessary for the purpose of this case but we must take note of the fact that Section 5 does not recognise any exception to the rule contained in Section3(2) with respect to the independent councillors. 24. The second proviso to sub-section (2) of Section 31A enables the formation of a Aghadi or front within a period of one month from the date of notification of the election results. Such an Aghadi or front can be formed by various possible combinations of councillors belonging to either two or more registered parties or recognised parties or independent councillors. The proviso categorically stipulates that such a formation of an `Aghadi or `front is possible notwithstanding anything contained in the Disqualification Act. Because an Aghadi or front, as defined under the Disqualification Act, clearly, can only be the combination of a group of persons forming themselves into a party prior to the election for setting up candidates at an election to a local authority but not a combination of political parties or political parties and individuals. 25. Therefore, second proviso to Section 31A (2) of the Municipal Corporation Act which is a later expression of the will of the sovereign, in contrast to the stipulation as contained under Section 2(a) and 3(2) of the Disqualification Act, would enable the formation of post electoral aghadis or fronts. However, such a formation is only meant for a limited purpose of enabling such aghadis to secure better representation in the various categories of the Committees specified under Section 31A. The component parties or individual independent Councillors, as the case may be, in the case of a given front/aghadi do not lose their political identify and merge in to the aghadi/front or bring into existence a new political party. There is no merger such as the one contemplated under Section 5 of the Disqualification Act. It is further apparent from the language of the second proviso that on the formation of such an Aghadi or front, the same is required to be registered. The procedure for such registration is contained in the Maharashtra Local Authority Members Disqualification Rules, 1987. 26. Once such an Aghadi is registered by a legal fiction created under the proviso, such an Aghadi is treated as if it were a pre-poll Aghadi or front. The proviso further declares that once such registration is made, the provisions of the Disqualification Act apply to the Members of such post poll Aghadi. We do not propose to examine the legal consequences of such a declaration as it appears from the record that a complaint has already been lodged against the respondents 6 to 13 herein under the provisions of the Disqualification Act. The limited question before us is whether the 1st respondent was legally right in registering an Aghadi or front formed after the lapse of one month from the date of the notification of the election results. 27. At paras 19 and 20 of the judgment under appeal, the High Court held: (19.) Once it is held that the appointment to the various Committees contemplated under Section 31A of the B.P.M.C. Act takes place more than once, the relative strength of the recognized parties or registered parties or groups at the time of their appointment would be relevant. In other words, the relative strength of the parties that was at the time of registration with a period of one month from the date of notification of the election results, would be relevant only on the first occasion after the general elections are held. xxxx xxxx xxxx xxxx xxxx xxxx (20.) ............ If the interpretation suggested by the petitioners is accepted, in our opinion, Rule 3(4) of the Rules would be rendered otiose. We have already held that the provisions of the Act and Rules are required to be taken into account while interpreting the provisions of Section 31A of the B.P.M.C. Act. In view thereof, we are clearly of the opinion that the appointment of various Committees under Section 31A of the B.P.M.C. Act not being one time affair, the relative strength of the recognized parties or registered parties or groups, subject to any change, if any, will have to be taken into account at the time of appointment of councillors to these committees. In substance, the High Court held that the interpretation of the Section 31A depends upon the tenor and scheme of the subordinate legislation. Such a principle of statutory construction is not normally resorted to save in the case of interpretation of an old enactment where the language is ambiguous. We are conscious of the fact that there is some difference of opinion on this principle but for the purpose of the present case we do not think it necessary to examine the proposition in detail as in our opinion the language of Section 31A is too explicit to require any other external aid for the interpretation of the same. Subordinate legislation made by the executive in exercise of the powers delegated by the legislature, at best, may reflect the understanding of the executive of the scope of the powers delegated. But there is no inherent guarantee such an understanding is consistent with the true meaning and purport of the parent enactment. 28. Such variations of the relative strength of aghadis would have various legal consequences provided under the Disqualification Act. Depending upon the fact situation in a given case, the variation might result in the consequence of rendering some of the Councillors disqualified for continuing as Councillors. Section 31A of the Municipal Corporation Act only enables the formation of an aghadi or front within a month from the date of the notification of the results of the election to the Municipal Corporation. To permit recognition of variations in the relative strength of the political parties beyond the above mentioned period of one month would be plainly in violation of the language of the second proviso to Section 31A. 29. We are, therefore, of the opinion that the | 1[ds]of the relative strength of aghadis would have various legal consequences provided under the Disqualification Act. Depending upon the fact situation in a given case, the variation might result in the consequence of rendering some of the Councillors disqualified for continuing as Councillors. Section 31A of the Municipal Corporation Act only enables the formation of an aghadi or front within a month from the date of the notification of the results of the election to the Municipal Corporation. To permit recognition of variations in the relative strength of the political parties beyond the above mentioned period of one month would be plainly in violation of the language of the second proviso to Section 31A24. The second proviso to sub-section (2) of Section 31A enables the formation of a Aghadi or front within a period of one month from the date of notification of the election results. Such an Aghadi or front can be formed by various possible combinations of councillors belonging to either two or more registered parties or recognised parties or independent councillors. The proviso categorically stipulates that such a formation of an `Aghadi or `front is possible notwithstanding anything contained in the Disqualification Act. Because an Aghadi or front, as defined under the Disqualification Act, clearly, can only be the combination of a group of persons forming themselves into a party prior to the election for setting up candidates at an election to a local authority but not a combination of political parties or political parties and individuals25. Therefore, second proviso to Section 31A (2) of the Municipal Corporation Act which is a later expression of the will of the sovereign, in contrast to the stipulation as contained under Section 2(a) and 3(2) of the Disqualification Act, would enable the formation of post electoral aghadis or fronts. However, such a formation is only meant for a limited purpose of enabling such aghadis to secure better representation in the various categories of the Committees specified under Section 31A. The component parties or individual independent Councillors, as the case may be, in the case of a given front/aghadi do not lose their political identify and merge in to the aghadi/front or bring into existence a new political party. There is no merger such as the one contemplated under Section 5 of the Disqualification Act. It is further apparent from the language of the second proviso that on the formation of such an Aghadi or front, the same is required to be registered. The procedure for such registration is contained in the Maharashtra Local Authority Members Disqualification Rules, 198726. Once such an Aghadi is registered by a legal fiction created under the proviso, such an Aghadi is treated as if it were a pre-poll Aghadi or front. The proviso further declares that once such registration is made, the provisions of the Disqualification Act apply to the Members of such post poll Aghadi | 1 | 3,978 | 526 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
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Section 5 may not be necessary for the purpose of this case but we must take note of the fact that Section 5 does not recognise any exception to the rule contained in Section3(2) with respect to the independent councillors. 24. The second proviso to sub-section (2) of Section 31A enables the formation of a Aghadi or front within a period of one month from the date of notification of the election results. Such an Aghadi or front can be formed by various possible combinations of councillors belonging to either two or more registered parties or recognised parties or independent councillors. The proviso categorically stipulates that such a formation of an `Aghadi or `front is possible notwithstanding anything contained in the Disqualification Act. Because an Aghadi or front, as defined under the Disqualification Act, clearly, can only be the combination of a group of persons forming themselves into a party prior to the election for setting up candidates at an election to a local authority but not a combination of political parties or political parties and individuals. 25. Therefore, second proviso to Section 31A (2) of the Municipal Corporation Act which is a later expression of the will of the sovereign, in contrast to the stipulation as contained under Section 2(a) and 3(2) of the Disqualification Act, would enable the formation of post electoral aghadis or fronts. However, such a formation is only meant for a limited purpose of enabling such aghadis to secure better representation in the various categories of the Committees specified under Section 31A. The component parties or individual independent Councillors, as the case may be, in the case of a given front/aghadi do not lose their political identify and merge in to the aghadi/front or bring into existence a new political party. There is no merger such as the one contemplated under Section 5 of the Disqualification Act. It is further apparent from the language of the second proviso that on the formation of such an Aghadi or front, the same is required to be registered. The procedure for such registration is contained in the Maharashtra Local Authority Members Disqualification Rules, 1987. 26. Once such an Aghadi is registered by a legal fiction created under the proviso, such an Aghadi is treated as if it were a pre-poll Aghadi or front. The proviso further declares that once such registration is made, the provisions of the Disqualification Act apply to the Members of such post poll Aghadi. We do not propose to examine the legal consequences of such a declaration as it appears from the record that a complaint has already been lodged against the respondents 6 to 13 herein under the provisions of the Disqualification Act. The limited question before us is whether the 1st respondent was legally right in registering an Aghadi or front formed after the lapse of one month from the date of the notification of the election results. 27. At paras 19 and 20 of the judgment under appeal, the High Court held: (19.) Once it is held that the appointment to the various Committees contemplated under Section 31A of the B.P.M.C. Act takes place more than once, the relative strength of the recognized parties or registered parties or groups at the time of their appointment would be relevant. In other words, the relative strength of the parties that was at the time of registration with a period of one month from the date of notification of the election results, would be relevant only on the first occasion after the general elections are held. xxxx xxxx xxxx xxxx xxxx xxxx (20.) ............ If the interpretation suggested by the petitioners is accepted, in our opinion, Rule 3(4) of the Rules would be rendered otiose. We have already held that the provisions of the Act and Rules are required to be taken into account while interpreting the provisions of Section 31A of the B.P.M.C. Act. In view thereof, we are clearly of the opinion that the appointment of various Committees under Section 31A of the B.P.M.C. Act not being one time affair, the relative strength of the recognized parties or registered parties or groups, subject to any change, if any, will have to be taken into account at the time of appointment of councillors to these committees. In substance, the High Court held that the interpretation of the Section 31A depends upon the tenor and scheme of the subordinate legislation. Such a principle of statutory construction is not normally resorted to save in the case of interpretation of an old enactment where the language is ambiguous. We are conscious of the fact that there is some difference of opinion on this principle but for the purpose of the present case we do not think it necessary to examine the proposition in detail as in our opinion the language of Section 31A is too explicit to require any other external aid for the interpretation of the same. Subordinate legislation made by the executive in exercise of the powers delegated by the legislature, at best, may reflect the understanding of the executive of the scope of the powers delegated. But there is no inherent guarantee such an understanding is consistent with the true meaning and purport of the parent enactment. 28. Such variations of the relative strength of aghadis would have various legal consequences provided under the Disqualification Act. Depending upon the fact situation in a given case, the variation might result in the consequence of rendering some of the Councillors disqualified for continuing as Councillors. Section 31A of the Municipal Corporation Act only enables the formation of an aghadi or front within a month from the date of the notification of the results of the election to the Municipal Corporation. To permit recognition of variations in the relative strength of the political parties beyond the above mentioned period of one month would be plainly in violation of the language of the second proviso to Section 31A. 29. We are, therefore, of the opinion that the
### Response:
1
### Explanation:
of the relative strength of aghadis would have various legal consequences provided under the Disqualification Act. Depending upon the fact situation in a given case, the variation might result in the consequence of rendering some of the Councillors disqualified for continuing as Councillors. Section 31A of the Municipal Corporation Act only enables the formation of an aghadi or front within a month from the date of the notification of the results of the election to the Municipal Corporation. To permit recognition of variations in the relative strength of the political parties beyond the above mentioned period of one month would be plainly in violation of the language of the second proviso to Section 31A24. The second proviso to sub-section (2) of Section 31A enables the formation of a Aghadi or front within a period of one month from the date of notification of the election results. Such an Aghadi or front can be formed by various possible combinations of councillors belonging to either two or more registered parties or recognised parties or independent councillors. The proviso categorically stipulates that such a formation of an `Aghadi or `front is possible notwithstanding anything contained in the Disqualification Act. Because an Aghadi or front, as defined under the Disqualification Act, clearly, can only be the combination of a group of persons forming themselves into a party prior to the election for setting up candidates at an election to a local authority but not a combination of political parties or political parties and individuals25. Therefore, second proviso to Section 31A (2) of the Municipal Corporation Act which is a later expression of the will of the sovereign, in contrast to the stipulation as contained under Section 2(a) and 3(2) of the Disqualification Act, would enable the formation of post electoral aghadis or fronts. However, such a formation is only meant for a limited purpose of enabling such aghadis to secure better representation in the various categories of the Committees specified under Section 31A. The component parties or individual independent Councillors, as the case may be, in the case of a given front/aghadi do not lose their political identify and merge in to the aghadi/front or bring into existence a new political party. There is no merger such as the one contemplated under Section 5 of the Disqualification Act. It is further apparent from the language of the second proviso that on the formation of such an Aghadi or front, the same is required to be registered. The procedure for such registration is contained in the Maharashtra Local Authority Members Disqualification Rules, 198726. Once such an Aghadi is registered by a legal fiction created under the proviso, such an Aghadi is treated as if it were a pre-poll Aghadi or front. The proviso further declares that once such registration is made, the provisions of the Disqualification Act apply to the Members of such post poll Aghadi
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Shahid Jamal and Ors Vs. State of U.P. and Ors | Kurian Joseph, J.1. Leave granted.2. The High Court, as per the impugned order, declined to grant an order in favour of the Appellants for reference Under Section 18 of the Land Acquisition Act, 1894 (for short "the Act") for enhancement of compensation, on the ground that the application was filed beyond the period of six months.3. To refer to the undisputed facts, though the Award was passed on 31.03.1999, the compensation was paid only on 07.04.1999. There is no dispute that the same was received under protest. According to the Appellants, the copy of the Award was not supplied and, therefore, the Appellants could not furnish the details of the objections with regard to the Award in the application for reference.4. Be that as it may, it is not in dispute that the Appellants had filed an application for reference on 24.07.1999. To the extent relevant, the request reads as follows:Kindly refer our case in the joint name of Shahid Jamal & Durwesh to reference court Under Section 18. Also please refer the case Shahid Jamal & M.A. Trading Co. and Anr. in the name of Durwesh Najaf & MAT FAB International to reference court Under Section 18 and deposit the award amount Under Section 31 Sub-section (2) part V.5. It seems that there was a communication dated 25.09.1999 from the Land Acquisition Officer to the Appellants. The letter reads as follows:Please accept the reference of your letter dated 07.06.1999, 24.07.1999 and 25.08.1999, under which it has been mentioned that for the construction of the project of Ahmadpur Phulwaria Phase-1 of Bhadohi Industrial Development Authority the information of the declared Award regarding the acquired land from the village Lakhanpur alias Abhayanpur has not been made available. Regarding this you have been informed that notice Under Section 12(2) was sent on 31.03.1999 regarding declaring the Award, on which you refused to sign. You demanded the copy of the Award at the time of receiving the amount of compensation on 07.04.1999 and even the photo copy of the Award was made available to you, but on the receiving register you did not sign, rather by making unnecessary correspondence the certified copy of the Award is being demanded. From your said act it seems that you are trying to take advantage of the time limit (time barred) by hook or by crook after enclosing with your application the judicial precedents of the Honble Courts, which is improper. Even then according to your desire the so-called photo copy of the Award is sent after enclosing.6. It may be specifically noted that the said letter dated 25.09.1999 is, in any case, within six months period, as required Under Section 18(2) of the Act (as amended in the State of U.P.).7. Learned senior Counsel appearing for the State points out that a proper application stating the grounds for reference has been made only on 30.12.1999, which is beyond the prescribed period of six months. It is submitted that Under Section 18(2), the application for reference should contain the grounds for reference and, therefore, only an application with the grounds can be taken as a proper application for reference.8. In the impugned judgment the High Court has taken note of the fact that the Appellants had come to know about the Award on 07.04.1999 when the compensation was received and hence, the application dated 30.12.1999 Under Section 18 of the Act was beyond time and thus the writ petition was dismissed.9. Having regard to the factual matrix we have referred to above, and having heard the learned senior Counsel appearing for the Appellants as well as the learned senior Counsel appearing for the State, we find that the High Court has unfortunately missed a crucial point on facts. As can be seen from the extracted portion of the application dated 24.07.1999 there is a specific request for reference Under Section 18 of the Act. It is not in dispute and it is borne out from the records also as seen by the High Court the compensation was received only under protest with regard to the sufficiency of the compensation. It is also seen from the communication from the Land Acquisition Officer to the Appellants dated 25.09.1999, on which date the time Under Section 18 had not expired, that certified copy of the Award had not been furnished to the Appellants. However, a photocopy of the Award was given, which the Appellants were not inclined to acknowledge. | 1[ds]8. In the impugned judgment the High Court has taken note of the fact that the Appellants had come to know about the Award on 07.04.1999 when the compensation was received and hence, the application dated 30.12.1999 Under Section 18 of the Act was beyond time and thus the writ petition was dismissed9. Having regard to the factual matrix we have referred to above, and having heard the learned senior Counsel appearing for the Appellants as well as the learned senior Counsel appearing for the State, we find that the High Court has unfortunately missed a crucial point on facts. As can be seen from the extracted portion of the application dated 24.07.1999 there is a specific request for reference Under Section 18 of the Act. It is not in dispute and it is borne out from the records also as seen by the High Court the compensation was received only under protest with regard to the sufficiency of the compensation. It is also seen from the communication from the Land Acquisition Officer to the Appellants dated 25.09.1999, on which date the time Under Section 18 had not expired, that certified copy of the Award had not been furnished to the Appellants. However, a photocopy of the Award was given, which the Appellants were not inclined to acknowledge | 1 | 821 | 235 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
Kurian Joseph, J.1. Leave granted.2. The High Court, as per the impugned order, declined to grant an order in favour of the Appellants for reference Under Section 18 of the Land Acquisition Act, 1894 (for short "the Act") for enhancement of compensation, on the ground that the application was filed beyond the period of six months.3. To refer to the undisputed facts, though the Award was passed on 31.03.1999, the compensation was paid only on 07.04.1999. There is no dispute that the same was received under protest. According to the Appellants, the copy of the Award was not supplied and, therefore, the Appellants could not furnish the details of the objections with regard to the Award in the application for reference.4. Be that as it may, it is not in dispute that the Appellants had filed an application for reference on 24.07.1999. To the extent relevant, the request reads as follows:Kindly refer our case in the joint name of Shahid Jamal & Durwesh to reference court Under Section 18. Also please refer the case Shahid Jamal & M.A. Trading Co. and Anr. in the name of Durwesh Najaf & MAT FAB International to reference court Under Section 18 and deposit the award amount Under Section 31 Sub-section (2) part V.5. It seems that there was a communication dated 25.09.1999 from the Land Acquisition Officer to the Appellants. The letter reads as follows:Please accept the reference of your letter dated 07.06.1999, 24.07.1999 and 25.08.1999, under which it has been mentioned that for the construction of the project of Ahmadpur Phulwaria Phase-1 of Bhadohi Industrial Development Authority the information of the declared Award regarding the acquired land from the village Lakhanpur alias Abhayanpur has not been made available. Regarding this you have been informed that notice Under Section 12(2) was sent on 31.03.1999 regarding declaring the Award, on which you refused to sign. You demanded the copy of the Award at the time of receiving the amount of compensation on 07.04.1999 and even the photo copy of the Award was made available to you, but on the receiving register you did not sign, rather by making unnecessary correspondence the certified copy of the Award is being demanded. From your said act it seems that you are trying to take advantage of the time limit (time barred) by hook or by crook after enclosing with your application the judicial precedents of the Honble Courts, which is improper. Even then according to your desire the so-called photo copy of the Award is sent after enclosing.6. It may be specifically noted that the said letter dated 25.09.1999 is, in any case, within six months period, as required Under Section 18(2) of the Act (as amended in the State of U.P.).7. Learned senior Counsel appearing for the State points out that a proper application stating the grounds for reference has been made only on 30.12.1999, which is beyond the prescribed period of six months. It is submitted that Under Section 18(2), the application for reference should contain the grounds for reference and, therefore, only an application with the grounds can be taken as a proper application for reference.8. In the impugned judgment the High Court has taken note of the fact that the Appellants had come to know about the Award on 07.04.1999 when the compensation was received and hence, the application dated 30.12.1999 Under Section 18 of the Act was beyond time and thus the writ petition was dismissed.9. Having regard to the factual matrix we have referred to above, and having heard the learned senior Counsel appearing for the Appellants as well as the learned senior Counsel appearing for the State, we find that the High Court has unfortunately missed a crucial point on facts. As can be seen from the extracted portion of the application dated 24.07.1999 there is a specific request for reference Under Section 18 of the Act. It is not in dispute and it is borne out from the records also as seen by the High Court the compensation was received only under protest with regard to the sufficiency of the compensation. It is also seen from the communication from the Land Acquisition Officer to the Appellants dated 25.09.1999, on which date the time Under Section 18 had not expired, that certified copy of the Award had not been furnished to the Appellants. However, a photocopy of the Award was given, which the Appellants were not inclined to acknowledge.
### Response:
1
### Explanation:
8. In the impugned judgment the High Court has taken note of the fact that the Appellants had come to know about the Award on 07.04.1999 when the compensation was received and hence, the application dated 30.12.1999 Under Section 18 of the Act was beyond time and thus the writ petition was dismissed9. Having regard to the factual matrix we have referred to above, and having heard the learned senior Counsel appearing for the Appellants as well as the learned senior Counsel appearing for the State, we find that the High Court has unfortunately missed a crucial point on facts. As can be seen from the extracted portion of the application dated 24.07.1999 there is a specific request for reference Under Section 18 of the Act. It is not in dispute and it is borne out from the records also as seen by the High Court the compensation was received only under protest with regard to the sufficiency of the compensation. It is also seen from the communication from the Land Acquisition Officer to the Appellants dated 25.09.1999, on which date the time Under Section 18 had not expired, that certified copy of the Award had not been furnished to the Appellants. However, a photocopy of the Award was given, which the Appellants were not inclined to acknowledge
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Commissioner of Income Tax, Bombay Vs. Nirlon Synthetic Fibres and Chemicals Limited | PATHAK, J. 1. These appeals by special leave are directed against the orders of the High Court of Bombay declining to call for a statement of the case on the questions proposed by the appellant The respondent manufactures Nylon-6 yarn from caprolactum imported from Germany. It appears that crude naphtha left over after the extraction of petrol and other oil from crude oil yields benzene, which in turn gives cyclo-hexane, and on further processing that leads to caprolactum. When caprolactum is subjected to heat up to 270 degrees, Nylon-6 results therefrom in the form of yarn. The chemical composition of caprolactum remains the same when it is converted into nylon fibre. When the nylon fibre is subjected to further heating the process is reversed and the nylon fibre is reconverted into caprolactum 2. For the assessment year 1965-66, the respondent claimed rebate of surtax under the first proviso to para. one of the Third Schedule to the Companies (Profits) Surtax Act, 1964, on the ground that its product, Nylon-6, was covered by item No. 19 of para. two of Schedule III. Item No. 19 read "Petrochemicals including corresponding products manufactured from other basic raw materials like calcium carbide, ethyl alcohol or hydrocarbons from other sources." 3. The contention was that Nylon-6 manufactured from imported caprolactum was a " petrochemical ". Similarly, for the assessment years 1968-69 to 1970-71, the respondent claimed that it was entitled to the higher development rebate at the rate of 35% under s. 33(1)(b)(B)(i)(a) and also relief under s. 80-I of the I.T. Act, 1961, on the ground that its product, Nylon-6, was covered by item 18 of the Fifth Schedule and Sixth Schedule to that Act. Item 18 of those Schedules was enacted in the same terms as item 19 of para. two set forth earlier. The assessees claim rested on the basis that its product, Nylon-6, was a " petrochemical"The ITO accepted the claim of the assessee and made the assessment of surtax for the assessment year 1965-66 and the I.T. assessments for the assessment years 1968-69 to 1970-71 accordingly. The Addl. Commissioner, however, in the exercise of his revisional powers under s. 16(1) of the Companies (Profits) Surtax Act, 1964, for the assessment year 1965-66 and under s. 263 of the I.T. Act, 1961, for the assessment years 1968-69. to 1970-71, passed orders dated 5th March, 1974, holding that Nylon-6 was not " petrochemical " and by separate orders, withdrew surtax rebate for the assessment year 1965-66 and disallowed development rebate at the higher rebate of 35% and the relief under s. 80-I for the assessment years 1968-69 to 1970-71 4. The respondent appealed to the I.T. Appellate Tribunal, and the four appeals were allowed by the Appellate Tribunal by its consolidated order dated 28th November, 1974, on the finding that Nylon-6 produced by the respondent was a " petrochemical " and covered by the relevant items in the respective Schedules. The appellant applied to the Appellate Tribunal for a reference in each case to the High Court, and the applications were dismissed by the Appellate Tribunal by a common order dated 16th August, 1975, on the ground that no question of law arose out of the Appellate Tribunals order disposing of the appeals 5. The appellant then applied to the High Court for an order directing the Appellate Tribunal to refer the cases, and on 3rd November, 1976, the High Court dismissed the applications 6. The appellant moved this court for the grant of special leave to appeal against the refusal of the High Court to require the Appellate Tribunal to make a reference in the four cases, and the special, leave granted by this court has given rise to the present Civil Appeals Nos. 1847 to 1850 of 1978It is not disputed that although a number of questions have been proposed in each case by the appellant as questions on which a reference should be directed, they are all questions which turn on the central point whether Nylon-6 manufactured by the respondent is a " petrochemical ". The learned Attorney-General, appearing for. the appellant, vehemently contends that the point raises a question of law. He has led us through the evidence on the record and urges that the only reasonable conclusion from it must be that Nylon-6 is not a " petrochemical ". He asserts that while the expression " petrochemical " may include an intermediate product, and, therefore, cover caprolactum, it does not extend, he says, to a finished product such as Nylon-6. Now, the basis on which the Appellate Tribunal rested its conclusion that Nylon-6 must be regarded as " petrochemical " consists of a large volume of documentary material drawn from general dictionaries, chemical dictionaries, technical, commercial and Govt. publications, the documentary testimony of experts in the field, the classification set forth in related statutory enactments and the object with which the relevant rebate and relief were intended by Parliament. We have carefully analysed the mass of evidentiary material, and have noted the well-settled criteria applied by the Appellate Tribunal to that material. The Appellate Tribunal took the view that the primary criterion must be the commercial sense in which the expression " petrochemical " was used in the statutory entry, that is to say, the sense in which those who are dealing with the commodity generally understand it. A long line of cases has laid down that test, and we may refer to one of them, Porritts & Spencer (Asia) Ltd. v. State of Haryana [1979] 1 SCR 545 ; [1978] 42 STC 431 ; AIR 1979 SC 300 . There is nothing to show that the finding of the Appellate Tribunal proceeds on a misapplication of any rule of law or is based on no evidence or is based on inadmissible evidence or has ignored material evidence or, on the evidentiary material, is perverse. | 0[ds]t is not disputed that although a number of questions have been proposed in each case by the appellant as questions on which a reference should be directed, they are all questions which turn on the central point whether6 manufactured by the respondent is a " petrochemical ". The learned, appearing for. the appellant, vehemently contends that the point raises a question of law. He has led us through the evidence on the record and urges that the only reasonable conclusion from it must be that6 is not a " petrochemical ". He asserts that while the expression " petrochemical " may include an intermediate product, and, therefore, cover caprolactum, it does not extend, he says, to a finished product such as. Now, the basis on which the Appellate Tribunal rested its conclusion that6 must be regarded as " petrochemical " consists of a large volume of documentary material drawn from general dictionaries, chemical dictionaries, technical, commercial and Govt. publications, the documentary testimony of experts in the field, the classification set forth in related statutory enactments and the object with which the relevant rebate and relief were intended by Parliament. We have carefully analysed the mass of evidentiary material, and have noted thed criteria applied by the Appellate Tribunal to that material. The Appellate Tribunal took the view that the primary criterion must be the commercial sense in which the expression " petrochemical " was used in the statutory entry, that is to say, the sense in which those who are dealing with the commodity generally understand it. A long line of cases has laid down that test, and we may refer to one of them, Porritts & Spencer (Asia) Ltd. v. State of Haryana [1979] 1 SCR 545 ; [1978] 42 STC 431 ; AIR 1979 SC 300 . There is nothing to show that the finding of the Appellate Tribunal proceeds on a misapplication of any rule of law or is based on no evidence or is based on inadmissible evidence or has ignored material evidence or, on the evidentiary material, is perverse. | 0 | 1,112 | 387 | ### 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:
PATHAK, J. 1. These appeals by special leave are directed against the orders of the High Court of Bombay declining to call for a statement of the case on the questions proposed by the appellant The respondent manufactures Nylon-6 yarn from caprolactum imported from Germany. It appears that crude naphtha left over after the extraction of petrol and other oil from crude oil yields benzene, which in turn gives cyclo-hexane, and on further processing that leads to caprolactum. When caprolactum is subjected to heat up to 270 degrees, Nylon-6 results therefrom in the form of yarn. The chemical composition of caprolactum remains the same when it is converted into nylon fibre. When the nylon fibre is subjected to further heating the process is reversed and the nylon fibre is reconverted into caprolactum 2. For the assessment year 1965-66, the respondent claimed rebate of surtax under the first proviso to para. one of the Third Schedule to the Companies (Profits) Surtax Act, 1964, on the ground that its product, Nylon-6, was covered by item No. 19 of para. two of Schedule III. Item No. 19 read "Petrochemicals including corresponding products manufactured from other basic raw materials like calcium carbide, ethyl alcohol or hydrocarbons from other sources." 3. The contention was that Nylon-6 manufactured from imported caprolactum was a " petrochemical ". Similarly, for the assessment years 1968-69 to 1970-71, the respondent claimed that it was entitled to the higher development rebate at the rate of 35% under s. 33(1)(b)(B)(i)(a) and also relief under s. 80-I of the I.T. Act, 1961, on the ground that its product, Nylon-6, was covered by item 18 of the Fifth Schedule and Sixth Schedule to that Act. Item 18 of those Schedules was enacted in the same terms as item 19 of para. two set forth earlier. The assessees claim rested on the basis that its product, Nylon-6, was a " petrochemical"The ITO accepted the claim of the assessee and made the assessment of surtax for the assessment year 1965-66 and the I.T. assessments for the assessment years 1968-69 to 1970-71 accordingly. The Addl. Commissioner, however, in the exercise of his revisional powers under s. 16(1) of the Companies (Profits) Surtax Act, 1964, for the assessment year 1965-66 and under s. 263 of the I.T. Act, 1961, for the assessment years 1968-69. to 1970-71, passed orders dated 5th March, 1974, holding that Nylon-6 was not " petrochemical " and by separate orders, withdrew surtax rebate for the assessment year 1965-66 and disallowed development rebate at the higher rebate of 35% and the relief under s. 80-I for the assessment years 1968-69 to 1970-71 4. The respondent appealed to the I.T. Appellate Tribunal, and the four appeals were allowed by the Appellate Tribunal by its consolidated order dated 28th November, 1974, on the finding that Nylon-6 produced by the respondent was a " petrochemical " and covered by the relevant items in the respective Schedules. The appellant applied to the Appellate Tribunal for a reference in each case to the High Court, and the applications were dismissed by the Appellate Tribunal by a common order dated 16th August, 1975, on the ground that no question of law arose out of the Appellate Tribunals order disposing of the appeals 5. The appellant then applied to the High Court for an order directing the Appellate Tribunal to refer the cases, and on 3rd November, 1976, the High Court dismissed the applications 6. The appellant moved this court for the grant of special leave to appeal against the refusal of the High Court to require the Appellate Tribunal to make a reference in the four cases, and the special, leave granted by this court has given rise to the present Civil Appeals Nos. 1847 to 1850 of 1978It is not disputed that although a number of questions have been proposed in each case by the appellant as questions on which a reference should be directed, they are all questions which turn on the central point whether Nylon-6 manufactured by the respondent is a " petrochemical ". The learned Attorney-General, appearing for. the appellant, vehemently contends that the point raises a question of law. He has led us through the evidence on the record and urges that the only reasonable conclusion from it must be that Nylon-6 is not a " petrochemical ". He asserts that while the expression " petrochemical " may include an intermediate product, and, therefore, cover caprolactum, it does not extend, he says, to a finished product such as Nylon-6. Now, the basis on which the Appellate Tribunal rested its conclusion that Nylon-6 must be regarded as " petrochemical " consists of a large volume of documentary material drawn from general dictionaries, chemical dictionaries, technical, commercial and Govt. publications, the documentary testimony of experts in the field, the classification set forth in related statutory enactments and the object with which the relevant rebate and relief were intended by Parliament. We have carefully analysed the mass of evidentiary material, and have noted the well-settled criteria applied by the Appellate Tribunal to that material. The Appellate Tribunal took the view that the primary criterion must be the commercial sense in which the expression " petrochemical " was used in the statutory entry, that is to say, the sense in which those who are dealing with the commodity generally understand it. A long line of cases has laid down that test, and we may refer to one of them, Porritts & Spencer (Asia) Ltd. v. State of Haryana [1979] 1 SCR 545 ; [1978] 42 STC 431 ; AIR 1979 SC 300 . There is nothing to show that the finding of the Appellate Tribunal proceeds on a misapplication of any rule of law or is based on no evidence or is based on inadmissible evidence or has ignored material evidence or, on the evidentiary material, is perverse.
### Response:
0
### Explanation:
t is not disputed that although a number of questions have been proposed in each case by the appellant as questions on which a reference should be directed, they are all questions which turn on the central point whether6 manufactured by the respondent is a " petrochemical ". The learned, appearing for. the appellant, vehemently contends that the point raises a question of law. He has led us through the evidence on the record and urges that the only reasonable conclusion from it must be that6 is not a " petrochemical ". He asserts that while the expression " petrochemical " may include an intermediate product, and, therefore, cover caprolactum, it does not extend, he says, to a finished product such as. Now, the basis on which the Appellate Tribunal rested its conclusion that6 must be regarded as " petrochemical " consists of a large volume of documentary material drawn from general dictionaries, chemical dictionaries, technical, commercial and Govt. publications, the documentary testimony of experts in the field, the classification set forth in related statutory enactments and the object with which the relevant rebate and relief were intended by Parliament. We have carefully analysed the mass of evidentiary material, and have noted thed criteria applied by the Appellate Tribunal to that material. The Appellate Tribunal took the view that the primary criterion must be the commercial sense in which the expression " petrochemical " was used in the statutory entry, that is to say, the sense in which those who are dealing with the commodity generally understand it. A long line of cases has laid down that test, and we may refer to one of them, Porritts & Spencer (Asia) Ltd. v. State of Haryana [1979] 1 SCR 545 ; [1978] 42 STC 431 ; AIR 1979 SC 300 . There is nothing to show that the finding of the Appellate Tribunal proceeds on a misapplication of any rule of law or is based on no evidence or is based on inadmissible evidence or has ignored material evidence or, on the evidentiary material, is perverse.
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Commnr. of Income Tax, Jalandhar-I Vs. Shri Rajiv Bhatara | the previous year is imposed under Section 4(1) of the Act is not laid down in the Income Tax Act and, therefore, the said Section provides that the charge has to be fixed by the Central Act. It is because of this, that income tax is levied at different rates under the Finance Act. 6. In order that the charge should be a legal charge under Section 4, it must be a tax on the income of the assessee. If the charge is the tax on anything else, then it would not be a valid charge. That is the only limitation upon the power or authority of Parliament to fix any rate it pleases. So long as the charge is on ‘total income of the previous year, there is no limitation upon the power or authority of Parliament to fix any rate if pleases. The Income Tax Act, therefore, contains an elaborate machinery for ascertaining "total income" of an assessee. Section 4(1) prescribes the subject matter of the tax and the rate of that tax is prescribed by the legislature, either under the Act as in the case of Section 113 or vide the Finance Act. 7. The purpose of Chapter XIV is to lay down a special procedure for assessment of surcharge cases with a view to combat tax evasion and also to expedite and simplify assessments in search cases. Undisclosed incomes have to be related in different years in which income was earned under block assessment. This is because in such cases, the "block period" is for previous years relevant to 10/6 assessment years and also the period of the current previous year up to the date of the search. The essence of this new procedure, therefore, is a separate single assessment of the "undisclosed income", detected as a result of search and this separate assessment has to be in addition to the normal assessment covering the same period. Therefore, a separate return covering the years of the block period is a prerequisite for making block assessment. Under the said procedure, Explanation is inserted in Section 158-BB, which is computation Section, explaining the method of computation of "undisclosed income" of the block period. 8. If the "block period", as defined in Section 158-B(a), comprises previous years relevant to 10/6 assessment years is treated by Parliament as one unit of time for assessment purposes, one has to correlate "undisclosed income" to each of the years in which income was earned by the assessee. 9. Section 158-BB is required to be read with Section 4 of the Act, then the relevant Finance Act of the year concerned would automatically stand attracted to the computation under Chapter XIV-B. Section 158-BB looks at Section 113. That Section fixes the rate of tax. 10. In the present case undisputedly Para A was applicable at the given point of time. As a general concept, income tax includes surcharge. Reading Section 2(1) of the Finance Act, 2001, it is clear that the term ‘income tax as used in Section 2(1) and proviso to Section 2(3) of the said Act did not include the amount of surcharge. Surcharge was a separate item of taxation, different from income tax. This was made clear vide Section 2 (1)(a), proviso to Section 2(3) and Para A of Part I to Schedule I.11. Section 158-BA(2) read with Section 4 of the Act looks at Section 113 for the imposition rate at which tax has to be imposed in the case of block assessment. That rate is 60%. That rate is fixed by the Act itself. That rate has been stipulated by Parliament not with a view to oust the levy of surcharge but to make the levy cost effective and easy. Therefore, a flat rate is prescribed. The difficulty in block assessment is that one has to correlate the undisclosed income to different years in which income is earned, hence, Parliament has fixed a flat rate of tax in Section 113.12. Though Parliament was aware of rate of tax prescribed by Section 113 and yet in the various Finance Acts, Parliament has sought to levy surcharge on the tax in the case of block assessment. In the present case, the assessing officer has applied the rate of surcharge at 17% which rate finds place in Para A of Part I of Schedule I to the said Finance Act of 2001, therefore, surcharge leviable under Finance Act was a distinct charge, not dependent for its leviability on the assessees liability to pay income tax but on assessed tax.13. Therefore, even without the proviso to Section 113 (inserted vide Finance Act, 2002 w.e.f. 1.6.2002), Finance Act, 2001 was applicable to block assessment under Chapter XIV-B in relation to the search initiated on 6.4.2000 and accordingly surcharge was leviable on the tax. 14. According to the assessee, prior to 1.6.2002, the position was ambiguous as it was not clear even to the Department as to whether surcharge was leviable with reference to the rates provided for in Finance Act of the year in which the search was initiated or the year in which the search was concluded or the year in which the block assessment proceedings under Section 158 BC were initiated or the year in which block assessment order was passed. To clear that doubt precisely, the proviso has been inserted in Section 113 by which it is indicated that Finance Act of the year in which the search was initiated would apply. Therefore, it has to be held that the proviso to Section 113 was clarificatory in nature. It only clarifies that out of the four dates, Parliament was opted for the date, namely the year in which the search was initiated, which date would be relevant for applicability of a particular Finance Act. Therefore, the proviso has to be read as it stands.15. The above position was highlighted in Suresh N. Guptas Case (supra).16. There is no appearance on behalf of the Assessee-respondent in spite of service of notice. 17. | 1[ds]10. In the present case undisputedly Para A was applicable at the given point of time. As a general concept, income tax includes surcharge. Reading Section 2(1) of the Finance Act, 2001, it is clear that the term ‘income tax as used in Section 2(1) and proviso to Section 2(3) of the said Act did not include the amount of surcharge. Surcharge was a separate item of taxation, different from income tax. This was made clear vide Section 2 (1)(a), proviso to Section 2(3) and Para A of Part I to Schedule I.11. Sectionread with Section 4 of the Act looks at Section 113 for the imposition rate at which tax has to be imposed in the case of block assessment. That rate is 60%. That rate is fixed by the Act itself. That rate has been stipulated by Parliament not with a view to oust the levy of surcharge but to make the levy cost effective and easy. Therefore, a flat rate is prescribed. The difficulty in block assessment is that one has to correlate the undisclosed income to different years in which income is earned, hence, Parliament has fixed a flat rate of tax in Section 113.12. Though Parliament was aware of rate of tax prescribed by Section 113 and yet in the various Finance Acts, Parliament has sought to levy surcharge on the tax in the case of block assessment. In the present case, the assessing officer has applied the rate of surcharge at 17% which rate finds place in Para A of Part I of Schedule I to the said Finance Act of 2001, therefore, surcharge leviable under Finance Act was a distinct charge, not dependent for its leviability on the assessees liability to pay income tax but on assessed tax.13. Therefore, even without the proviso to Section 113 (inserted vide Finance Act, 2002 w.e.f. 1.6.2002), Finance Act, 2001 was applicable to block assessment under Chapterin relation to the search initiated on 6.4.2000 and accordingly surcharge was leviable on the tax.According to the assessee, prior to 1.6.2002, the position was ambiguous as it was not clear even to the Department as to whether surcharge was leviable with reference to the rates provided for in Finance Act of the year in which the search was initiated or the year in which the search was concluded or the year in which the block assessment proceedings under Section 158 BC were initiated or the year in which block assessment order was passed.To clear that doubt precisely, the proviso has been inserted in Section 113 by which it is indicated that Finance Act of the year in which the search was initiated would apply. Therefore, it has to be held that the proviso to Section 113 was clarificatory in nature. It only clarifies that out of the four dates, Parliament was opted for the date, namely the year in which the search was initiated, which date would be relevant for applicability of a particular Finance Act. Therefore, the proviso has to be read as it stands.15. The above position was highlighted in Suresh N. Guptas Case (supra).16.There is no appearance on behalf of thein spite of service of notice. | 1 | 1,792 | 603 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
the previous year is imposed under Section 4(1) of the Act is not laid down in the Income Tax Act and, therefore, the said Section provides that the charge has to be fixed by the Central Act. It is because of this, that income tax is levied at different rates under the Finance Act. 6. In order that the charge should be a legal charge under Section 4, it must be a tax on the income of the assessee. If the charge is the tax on anything else, then it would not be a valid charge. That is the only limitation upon the power or authority of Parliament to fix any rate it pleases. So long as the charge is on ‘total income of the previous year, there is no limitation upon the power or authority of Parliament to fix any rate if pleases. The Income Tax Act, therefore, contains an elaborate machinery for ascertaining "total income" of an assessee. Section 4(1) prescribes the subject matter of the tax and the rate of that tax is prescribed by the legislature, either under the Act as in the case of Section 113 or vide the Finance Act. 7. The purpose of Chapter XIV is to lay down a special procedure for assessment of surcharge cases with a view to combat tax evasion and also to expedite and simplify assessments in search cases. Undisclosed incomes have to be related in different years in which income was earned under block assessment. This is because in such cases, the "block period" is for previous years relevant to 10/6 assessment years and also the period of the current previous year up to the date of the search. The essence of this new procedure, therefore, is a separate single assessment of the "undisclosed income", detected as a result of search and this separate assessment has to be in addition to the normal assessment covering the same period. Therefore, a separate return covering the years of the block period is a prerequisite for making block assessment. Under the said procedure, Explanation is inserted in Section 158-BB, which is computation Section, explaining the method of computation of "undisclosed income" of the block period. 8. If the "block period", as defined in Section 158-B(a), comprises previous years relevant to 10/6 assessment years is treated by Parliament as one unit of time for assessment purposes, one has to correlate "undisclosed income" to each of the years in which income was earned by the assessee. 9. Section 158-BB is required to be read with Section 4 of the Act, then the relevant Finance Act of the year concerned would automatically stand attracted to the computation under Chapter XIV-B. Section 158-BB looks at Section 113. That Section fixes the rate of tax. 10. In the present case undisputedly Para A was applicable at the given point of time. As a general concept, income tax includes surcharge. Reading Section 2(1) of the Finance Act, 2001, it is clear that the term ‘income tax as used in Section 2(1) and proviso to Section 2(3) of the said Act did not include the amount of surcharge. Surcharge was a separate item of taxation, different from income tax. This was made clear vide Section 2 (1)(a), proviso to Section 2(3) and Para A of Part I to Schedule I.11. Section 158-BA(2) read with Section 4 of the Act looks at Section 113 for the imposition rate at which tax has to be imposed in the case of block assessment. That rate is 60%. That rate is fixed by the Act itself. That rate has been stipulated by Parliament not with a view to oust the levy of surcharge but to make the levy cost effective and easy. Therefore, a flat rate is prescribed. The difficulty in block assessment is that one has to correlate the undisclosed income to different years in which income is earned, hence, Parliament has fixed a flat rate of tax in Section 113.12. Though Parliament was aware of rate of tax prescribed by Section 113 and yet in the various Finance Acts, Parliament has sought to levy surcharge on the tax in the case of block assessment. In the present case, the assessing officer has applied the rate of surcharge at 17% which rate finds place in Para A of Part I of Schedule I to the said Finance Act of 2001, therefore, surcharge leviable under Finance Act was a distinct charge, not dependent for its leviability on the assessees liability to pay income tax but on assessed tax.13. Therefore, even without the proviso to Section 113 (inserted vide Finance Act, 2002 w.e.f. 1.6.2002), Finance Act, 2001 was applicable to block assessment under Chapter XIV-B in relation to the search initiated on 6.4.2000 and accordingly surcharge was leviable on the tax. 14. According to the assessee, prior to 1.6.2002, the position was ambiguous as it was not clear even to the Department as to whether surcharge was leviable with reference to the rates provided for in Finance Act of the year in which the search was initiated or the year in which the search was concluded or the year in which the block assessment proceedings under Section 158 BC were initiated or the year in which block assessment order was passed. To clear that doubt precisely, the proviso has been inserted in Section 113 by which it is indicated that Finance Act of the year in which the search was initiated would apply. Therefore, it has to be held that the proviso to Section 113 was clarificatory in nature. It only clarifies that out of the four dates, Parliament was opted for the date, namely the year in which the search was initiated, which date would be relevant for applicability of a particular Finance Act. Therefore, the proviso has to be read as it stands.15. The above position was highlighted in Suresh N. Guptas Case (supra).16. There is no appearance on behalf of the Assessee-respondent in spite of service of notice. 17.
### Response:
1
### Explanation:
10. In the present case undisputedly Para A was applicable at the given point of time. As a general concept, income tax includes surcharge. Reading Section 2(1) of the Finance Act, 2001, it is clear that the term ‘income tax as used in Section 2(1) and proviso to Section 2(3) of the said Act did not include the amount of surcharge. Surcharge was a separate item of taxation, different from income tax. This was made clear vide Section 2 (1)(a), proviso to Section 2(3) and Para A of Part I to Schedule I.11. Sectionread with Section 4 of the Act looks at Section 113 for the imposition rate at which tax has to be imposed in the case of block assessment. That rate is 60%. That rate is fixed by the Act itself. That rate has been stipulated by Parliament not with a view to oust the levy of surcharge but to make the levy cost effective and easy. Therefore, a flat rate is prescribed. The difficulty in block assessment is that one has to correlate the undisclosed income to different years in which income is earned, hence, Parliament has fixed a flat rate of tax in Section 113.12. Though Parliament was aware of rate of tax prescribed by Section 113 and yet in the various Finance Acts, Parliament has sought to levy surcharge on the tax in the case of block assessment. In the present case, the assessing officer has applied the rate of surcharge at 17% which rate finds place in Para A of Part I of Schedule I to the said Finance Act of 2001, therefore, surcharge leviable under Finance Act was a distinct charge, not dependent for its leviability on the assessees liability to pay income tax but on assessed tax.13. Therefore, even without the proviso to Section 113 (inserted vide Finance Act, 2002 w.e.f. 1.6.2002), Finance Act, 2001 was applicable to block assessment under Chapterin relation to the search initiated on 6.4.2000 and accordingly surcharge was leviable on the tax.According to the assessee, prior to 1.6.2002, the position was ambiguous as it was not clear even to the Department as to whether surcharge was leviable with reference to the rates provided for in Finance Act of the year in which the search was initiated or the year in which the search was concluded or the year in which the block assessment proceedings under Section 158 BC were initiated or the year in which block assessment order was passed.To clear that doubt precisely, the proviso has been inserted in Section 113 by which it is indicated that Finance Act of the year in which the search was initiated would apply. Therefore, it has to be held that the proviso to Section 113 was clarificatory in nature. It only clarifies that out of the four dates, Parliament was opted for the date, namely the year in which the search was initiated, which date would be relevant for applicability of a particular Finance Act. Therefore, the proviso has to be read as it stands.15. The above position was highlighted in Suresh N. Guptas Case (supra).16.There is no appearance on behalf of thein spite of service of notice.
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Wg. Cdr. Ashwini Kumar Handa (Retd.) Vs. Union of India & Others | law. These are: (i) Oil & Natural Gas Corporation Ltd. v. Saw Pipes Ltd., 2003(2) R.C.R.(Civil) 554 : (2003) 5 SCC 705 "(1) Terms of the contract are required to be taken into consideration before arriving at the conclusion whether the party claiming damages is entitled to the same.(2) If the terms are clear and unambiguous stipulating the liquidated damages in case of the breach of the contract unless it is held that such estimate of damages/compensation is unreasonable or is by way of penalty, party who has committed the breach is required to pay such compensation and that is what is provided in section 73 of the Contract Act.(3) Section 74 is to be read along with Section 73 and, therefore, in every case of breach of contract, the person aggrieved by the breach is not required to prove actual loss or damage suffered by him before he can claim a decree. The court is competent to award reasonable compensation in case of breach even if no actual damage is proved to have been suffered in consequence of the breach of a contract.(4) In some contracts, it would be impossible for the court to assess the compensation arising from breach and if the compensation contemplated is not by way of penalty or unreasonable, the court can award the same if it is genuine pre-estimate by the parties as the measure of reasonable compensation." (ii) Subir Ghosh v. Indian Iron and Steel Company, 1976 SCC OnLine Cal 222 wherein the Calcutta High Court laid down the following proposition of law: "It was contended for the appellant that the agreement was one-sided, against public policy and constituted restraint on trade and that the claim by the company came specifically within section 74 of the Contract Act, 1872, and notwithstanding the amount on the breach of the covenant. Normally, when the amount payable is either disproportionately more than the actual damage suffered on the breach or remain the same irrespective of the varying damages which may be suffered due to breach of different covenants, the amount so payable partakes the nature of penalty. In the instant case what was payable under the bond reasonably represents the damage which the company is likely to suffer in case the appellant leaves the company in the midst of the training, and as such, the amount so payable is nothing but a genuine pre-estimate of the damage which the company is liable to sustain in the event of breach on the part of the appellant." 9. We may observe at the outset that the judgments in Oil & Natural Gas Corporation Ltd. and Subir Ghosh would not be applicable in the instant case as in those judgments provisions of the Indian Contract Act pertaining to damages/liquidated damages were dealt with. On the other hand, in the instant case we are concerned with the statutory provision under which leave was granted to the appellant herein. Moreover, those cases dealt with the issue of pre-estimated liquidated damages. In the instant case, the recovery made by the respondent is not of any damages but of pay and allowances which were given to the appellant during the period the appellant was on study leave. This matter, therefore, has to be looked into keeping in mind the following aspects:(i) the appellant, while serving with the respondent, had availed two years study leave; (ii) this study leave was granted to him in terms of Army Instructions 13/78 pursuant to which the appellant submitted Service Guarantee Certificate;(iii) as per the said Service Guarantee Certificate, the appellant was liable to serve for nine years from the date of return from study leave;(iv) only on the ground of ill health the appellant could be relieved earlier; and(v) in the event of leaving the job without completing nine years of service after return from study leave, the appellant was liable to refund the pay and allowances given to him during study leave. In the aforesaid facts, question of proportionate deduction does not arise at all.10. It is stated at the cost of repetition that undertaking in the form of Service Guarantee Certificate did not specify any compensation or damages to be paid by the appellant to the respondent in the event the appellant did not serve for nine years on joining after the study leave. In that eventuality, his request for proportionate deduction might have been relevant on the ground that he had served for 6 years 8 months out of the nine years and, therefore, is not liable to pay the entire compensation as per the stipulation in the bond. On the contrary, here is a case where the employer had paid him salary and allowances even for the period he did not work and was on study leave. This payment was made subject to the condition that after his return the appellant would serve for entire nine years. As he has not served for that period, the employer is entitled to receive back the pay and allowances given during the period of study leave, in terms of the Army Instructions coupled with the service guarantee certificate.Learned counsel for the respondent is right in his submission that validity of the aforesaid Instruction has not been questioned by the appellant.11. As far as argument of discrimination is concerned, there are no foundational facts in support of this argument. No such plea was taken either before the AFT or in the instant appeal. Only with the additional documents, communication dated February 6, 2014 is enclosed which the appellant has received under the Right to Information Act, 2005 in respect of Surg Cdr Haresh Maini. On the basis of this document, oral submission was made at the time of arguments. It is not known as to under what circumstances recovery of proportionate cost was made in his case. Moreover, in the absence of pleadings, the respondents did not have any opportunity to explain the same. Therefore, such a plea cannot be allowed in the facts of this case. | 0[ds]9. We may observe at the outset that the judgments in Oil & Natural Gas Corporation Ltd. and Subir Ghosh would not be applicable in the instant case as in those judgments provisions of the Indian Contract Act pertaining to damages/liquidated damages were dealt with. On the other hand, in the instant case we are concerned with the statutory provision under which leave was granted to the appellant herein. Moreover, those cases dealt with the issue ofliquidated damages. In the instant case, the recovery made by the respondent is not of any damages but of pay and allowances which were given to the appellant during the period the appellant was on study leave. This matter, therefore, has to be looked into keeping in mind the following aspects:(i) the appellant, while serving with the respondent, had availed two years studythis study leave was granted to him in terms of Army Instructions 13/78 pursuant to which the appellant submitted Service Guarantee Certificate;(iii) as per the said Service Guarantee Certificate, the appellant was liable to serve for nine years from the date of return from study leave;(iv) only on the ground of ill health the appellant could be relieved earlier; and(v) in the event of leaving the job without completing nine years of service after return from study leave, the appellant was liable to refund the pay and allowances given to him during studythe aforesaid facts, question of proportionate deduction does not arise at all.10. It is stated at the cost of repetition that undertaking in the form of Service Guarantee Certificate did not specify any compensation or damages to be paid by the appellant to the respondent in the event the appellant did not serve for nine years on joining after the study leave. In that eventuality, his request for proportionate deduction might have been relevant on the ground that he had served for 6 years 8 months out of the nine years and, therefore, is not liable to pay the entire compensation as per the stipulation in the bond. On the contrary, here is a case where the employer had paid him salary and allowances even for the period he did not work and was on study leave. This payment was made subject to the condition that after his return the appellant would serve for entire nine years. As he has not served for that period, the employer is entitled to receive back the pay and allowances given during the period of study leave, in terms of the Army Instructions coupled with the service guarantee certificate.Learned counsel for the respondent is right in his submission that validity of the aforesaid Instruction has not been questioned by the appellant.11. As far as argument of discrimination is concerned, there are no foundational facts in support of this argument. No such plea was taken either before the AFT or in the instant appeal. Only with the additional documents, communication dated February 6, 2014 is enclosed which the appellant has received under the Right to Information Act, 2005 in respect of Surg Cdr Haresh Maini. On the basis of this document, oral submission was made at the time of arguments. It is not known as to under what circumstances recovery of proportionate cost was made in his case. Moreover, in the absence of pleadings, the respondents did not have any opportunity to explain the same. Therefore, such a plea cannot be allowed in the facts of this case. | 0 | 2,828 | 636 | ### 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:
law. These are: (i) Oil & Natural Gas Corporation Ltd. v. Saw Pipes Ltd., 2003(2) R.C.R.(Civil) 554 : (2003) 5 SCC 705 "(1) Terms of the contract are required to be taken into consideration before arriving at the conclusion whether the party claiming damages is entitled to the same.(2) If the terms are clear and unambiguous stipulating the liquidated damages in case of the breach of the contract unless it is held that such estimate of damages/compensation is unreasonable or is by way of penalty, party who has committed the breach is required to pay such compensation and that is what is provided in section 73 of the Contract Act.(3) Section 74 is to be read along with Section 73 and, therefore, in every case of breach of contract, the person aggrieved by the breach is not required to prove actual loss or damage suffered by him before he can claim a decree. The court is competent to award reasonable compensation in case of breach even if no actual damage is proved to have been suffered in consequence of the breach of a contract.(4) In some contracts, it would be impossible for the court to assess the compensation arising from breach and if the compensation contemplated is not by way of penalty or unreasonable, the court can award the same if it is genuine pre-estimate by the parties as the measure of reasonable compensation." (ii) Subir Ghosh v. Indian Iron and Steel Company, 1976 SCC OnLine Cal 222 wherein the Calcutta High Court laid down the following proposition of law: "It was contended for the appellant that the agreement was one-sided, against public policy and constituted restraint on trade and that the claim by the company came specifically within section 74 of the Contract Act, 1872, and notwithstanding the amount on the breach of the covenant. Normally, when the amount payable is either disproportionately more than the actual damage suffered on the breach or remain the same irrespective of the varying damages which may be suffered due to breach of different covenants, the amount so payable partakes the nature of penalty. In the instant case what was payable under the bond reasonably represents the damage which the company is likely to suffer in case the appellant leaves the company in the midst of the training, and as such, the amount so payable is nothing but a genuine pre-estimate of the damage which the company is liable to sustain in the event of breach on the part of the appellant." 9. We may observe at the outset that the judgments in Oil & Natural Gas Corporation Ltd. and Subir Ghosh would not be applicable in the instant case as in those judgments provisions of the Indian Contract Act pertaining to damages/liquidated damages were dealt with. On the other hand, in the instant case we are concerned with the statutory provision under which leave was granted to the appellant herein. Moreover, those cases dealt with the issue of pre-estimated liquidated damages. In the instant case, the recovery made by the respondent is not of any damages but of pay and allowances which were given to the appellant during the period the appellant was on study leave. This matter, therefore, has to be looked into keeping in mind the following aspects:(i) the appellant, while serving with the respondent, had availed two years study leave; (ii) this study leave was granted to him in terms of Army Instructions 13/78 pursuant to which the appellant submitted Service Guarantee Certificate;(iii) as per the said Service Guarantee Certificate, the appellant was liable to serve for nine years from the date of return from study leave;(iv) only on the ground of ill health the appellant could be relieved earlier; and(v) in the event of leaving the job without completing nine years of service after return from study leave, the appellant was liable to refund the pay and allowances given to him during study leave. In the aforesaid facts, question of proportionate deduction does not arise at all.10. It is stated at the cost of repetition that undertaking in the form of Service Guarantee Certificate did not specify any compensation or damages to be paid by the appellant to the respondent in the event the appellant did not serve for nine years on joining after the study leave. In that eventuality, his request for proportionate deduction might have been relevant on the ground that he had served for 6 years 8 months out of the nine years and, therefore, is not liable to pay the entire compensation as per the stipulation in the bond. On the contrary, here is a case where the employer had paid him salary and allowances even for the period he did not work and was on study leave. This payment was made subject to the condition that after his return the appellant would serve for entire nine years. As he has not served for that period, the employer is entitled to receive back the pay and allowances given during the period of study leave, in terms of the Army Instructions coupled with the service guarantee certificate.Learned counsel for the respondent is right in his submission that validity of the aforesaid Instruction has not been questioned by the appellant.11. As far as argument of discrimination is concerned, there are no foundational facts in support of this argument. No such plea was taken either before the AFT or in the instant appeal. Only with the additional documents, communication dated February 6, 2014 is enclosed which the appellant has received under the Right to Information Act, 2005 in respect of Surg Cdr Haresh Maini. On the basis of this document, oral submission was made at the time of arguments. It is not known as to under what circumstances recovery of proportionate cost was made in his case. Moreover, in the absence of pleadings, the respondents did not have any opportunity to explain the same. Therefore, such a plea cannot be allowed in the facts of this case.
### Response:
0
### Explanation:
9. We may observe at the outset that the judgments in Oil & Natural Gas Corporation Ltd. and Subir Ghosh would not be applicable in the instant case as in those judgments provisions of the Indian Contract Act pertaining to damages/liquidated damages were dealt with. On the other hand, in the instant case we are concerned with the statutory provision under which leave was granted to the appellant herein. Moreover, those cases dealt with the issue ofliquidated damages. In the instant case, the recovery made by the respondent is not of any damages but of pay and allowances which were given to the appellant during the period the appellant was on study leave. This matter, therefore, has to be looked into keeping in mind the following aspects:(i) the appellant, while serving with the respondent, had availed two years studythis study leave was granted to him in terms of Army Instructions 13/78 pursuant to which the appellant submitted Service Guarantee Certificate;(iii) as per the said Service Guarantee Certificate, the appellant was liable to serve for nine years from the date of return from study leave;(iv) only on the ground of ill health the appellant could be relieved earlier; and(v) in the event of leaving the job without completing nine years of service after return from study leave, the appellant was liable to refund the pay and allowances given to him during studythe aforesaid facts, question of proportionate deduction does not arise at all.10. It is stated at the cost of repetition that undertaking in the form of Service Guarantee Certificate did not specify any compensation or damages to be paid by the appellant to the respondent in the event the appellant did not serve for nine years on joining after the study leave. In that eventuality, his request for proportionate deduction might have been relevant on the ground that he had served for 6 years 8 months out of the nine years and, therefore, is not liable to pay the entire compensation as per the stipulation in the bond. On the contrary, here is a case where the employer had paid him salary and allowances even for the period he did not work and was on study leave. This payment was made subject to the condition that after his return the appellant would serve for entire nine years. As he has not served for that period, the employer is entitled to receive back the pay and allowances given during the period of study leave, in terms of the Army Instructions coupled with the service guarantee certificate.Learned counsel for the respondent is right in his submission that validity of the aforesaid Instruction has not been questioned by the appellant.11. As far as argument of discrimination is concerned, there are no foundational facts in support of this argument. No such plea was taken either before the AFT or in the instant appeal. Only with the additional documents, communication dated February 6, 2014 is enclosed which the appellant has received under the Right to Information Act, 2005 in respect of Surg Cdr Haresh Maini. On the basis of this document, oral submission was made at the time of arguments. It is not known as to under what circumstances recovery of proportionate cost was made in his case. Moreover, in the absence of pleadings, the respondents did not have any opportunity to explain the same. Therefore, such a plea cannot be allowed in the facts of this case.
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Saharanpur Electric Supply Co. Ltd. Etc. Etc Vs. Commissioner Of Income-Tax Etc.Etc | 133 : 1976 (103) ITR 123 , 132 : 1977 AIR(SC) 552) relied upon by counsel 2. The language used in the provision 20. It was next suggested that there is an indication in the language of section 43(6) itself to show that it is available to be invoked only in respect of assets which had been acquired in earlier years. Reference is made in this context to the use of the words "as has been met" in Section 43(1) and the use of similar language in the notes on clauses of the corresponding provision in the Income Tax Bill, 1961 (42) ITR 161 (Supp)) It is argued that if the intention had been that the actual cost of assets which had been acquired earlier to the previous year should also be covered, the legislature would have used the words "as had been met". In support of this contention, Sri Dastur referred to the decision in Carson v. Carson and Stoyek ( 1964 (1) ALLER 681: 1964 (1) WLR 511). In that case Section 3 of the Matrimonial Causes Act, 1963, which came into operation on July 31, 1963, provided that "adultery which has been condoned shall not be capable of being revived". While it was quite clear that, as a result of this provision, no petition could rely on a course of conduct subsequent to July 31 as reviving previous condoned adultery, the question that arose was whether the section had retrospective effect and whether a course of conduct before that date could be relied upon as reviving previously condoned adultery. The question was answered in the negative. We do not think that the decision is of any help in the present context. The nature of the provisions with which we are concerned and the mode of its operation are totally different. The use of the words "has been met" is very appropriate and proper in the present context once we understand the mechanics of the provision. As we have already explained, it is incontrovertible that, under Section 43(1) read with Section 43(6) the officer has to determine the actual cost for all assets, new and old, and the definition in Section 43(1) only requires that, at the time of doing so, he has to examine whether the actual cost has been fully laid out by the assessee or has been met by someone else in whole or in part. The words "has been met" squarely fit into this reading of the section and it is difficult to accept the suggestion that the use of the words "has been met" lends support to an interpretation restricting the definition in Section 43(1) to assets acquired in the previous year 3. Absurdities and anomalies 21. It is contended that the Revenues interpretation will result in absurdities and anomalies. The first of these is said to be that it may lead to the computation of a negative written down value and consequent difficulties in applying various other statutory provisions. We have already negatived this contention and pointed out that the proviso to clause (c) really places a limitation on the depreciation deductible at any point of time and, hence, there can never be a negative written down value as contended. The second anomaly is said to be that the interpretation favoured by the Revenue is incompatible with the terms of Explanations 2, 4 and 6 to Section 43(6). We see no such difficulty. Explanations 2 and 4 fall in line with the suggested interpretation, once it is understood that the reference to "depreciation actually allowed" should be read subject to the limitation of clause (c) of the proviso to Section 10(2)(vi) [now Section 34(3)]. Explanation 6 offers no difficulty as the relationship as "parent" and "subsidiary" between the companies involved in the transfer for the purposes of this clause has to be determined as at the time of the transfer of the asset and will not be a wobbling or fluctuating one as suggested by counsel for the assessee. Another difficulty pointed out is that the interpretation put forward by the department might lead to difficulties in the calculation of assessable profits under Section 41(2) or the allowance under Section 32(1) (iii). Sri Ramachandran illustrate the difficulty by giving the instance of an asset purchased for, say, Rs. 10, 000 entirely with monies contributed by others. If the asset had been purchased in 1958 and was eligible for depreciation at 10 per cent., the assessee would have secured depreciation of Rs. 2, 710 in the assessment years 1959-60, 1960-61 and 1961-62. Suppose in the previous year relevant to the assessment year 1963-64, it is sold for Rs. 5, 000. Mr. Ramachandran points out that, according to the departments interpretation the actual cost of the asset will be nil and, therefore, its written down value at the end of the previous year relevant for the assessment year 1962-63 would be nil with the result that the entire sum of Rs. 5, 000 for which the asset is sold would become chargeable under Section 41(2). In other words, the assessee will have to pay tax or Rs. 5, 000 by way of balancing charge though he had been allowed depreciation only to the extent of Rs. 2, 710. Again if the asset is sold for Rs. 2, 500 in the previous year relevant for assessment year 1963-64, according to the department he will have to pay a tax on Rs. 2, 500 whereas under the old provisions he would have got an allowance under Section 32(1)(iii). But this is only a seeming anomaly. For, the sums of Rs. 5, 000 and Rs. 2, 500 would be taxed not as a balancing charge but as capital gains which is quite consistent with the departments position that, the assessee having paid nothing for the asset, its actual cost should be taken at nil, a stand in which there is no absurdity. We do not, therefore, think that any difficulty or anomaly results from the interpretation suggested | 0[ds]3. It will be seen from the main paragraph of sub-section (1) of Section 43 that it does not really define what is meant by the actual cost of an asset to the assessee; it only contains a gloss that, whatever the expression may mean, that figure has to be reduced by that portion of it, if any, as has been met directly or indirectly by any other person or authority. The question before us arises partly due to this circumstance and partly due to the earlier legislative history of these provisionsIn view of the consensus of views of the High Courts against them, they have taken considerable pains to address elaborate arguments which merit serious consideration in these appeals10. Attractive as this argument appears, there are two difficulties in accepting it. The first is the language of Section 43(6) and, even its predecessor section 10(5)(a) of the 1922 Act. Though, in substance, depreciation on an asset for any assessment year is calculated on its written down value which is normally carried forward from an earlier assessment year, the phraseology of the Act does not bear out the contention that the actual cost of the asset has to be determined only once, viz., in the previous year of its acquisitionIn the light of these decisions and the clear language of the statute, it is not possible to accept the contention that the Income tax Officer had no justification to compute first the actual cost of an asset which had been acquired before the previous year. The second difficulty in the way of accepting the argument of Dr. Pal is that, whatever its validity over the period of continuous operation of the same Act (of 1922 or 1961), it can have no application for the assessment year 1962-63. There is no provision in the 1961 Act which permits or compels the adoption or continuance of the figure of actual cost and written down value determined under the provisions of the earlier statute which has been repealed by the 1961 Act. We, therefore, reject this contention of Dr. Pal12. We are of the view that it is difficult to read any limitations into the statutory provision in section 43(6) as contended for by counsel. As already explained, the definition envisages the computation of the actual cost of each asset, for every assessment year, not only in respect of assets acquired during the previous year but also in respect of assets acquired before the previous year. This naturally has to be done with reference to the factual or legal position that may prevail during the relevant previous year and can be taken into account for the relevant assessment year. The section does not say that the computation of the actual cost of the asset has to be based only on the facts or law as they stood at the time of acquisition of the asset and as could have been taken into account for the assessment year relevant to the previous year of acquisition. It is one thing to contend, as Dr. Pal did, that once the actual cost as at the date of acquisition has been computed, that figure is final and cannot be interfered with subsequently. But that contention is not acceptable for reasons already discusses. Once it is conceded that the figure of actual cost can require modifications it is not possible to confine such modifications in the manner contended for by Sri Dastur. Where subsequent information - factual or legal reveals that the actual cost determined originally was wrong, there can be no doubt that the original figure of actual cost has to be altered, if need be, and if possible, by reopening the earlier assessment and, if that be not possible, at least for the futureWe are not concerned with that aspect here. All that is relevant is that this is a decision which permits an alteration in the figure of actual cost consequent on subsequent factual occurrences that do not relate back. It also shows that the actual cost for 1961-62 could be scaled down for the assessment year 1962-63. There are also other decisions which make it clear that the original cost of an asset may change after the year of installation or erection as a result of further liabilities arising later13. These apart, there are clearly situations in which the actual cost does get altered prospectively and not retrospectively. One such instance is where the cost of an asset increases or decreases on account of a fluctuation in the value of the currency. Suppose an asset was purchased in 1965 for $ 10, 000 (equivalent to say, Rs. 1, 00, 000) and the price or the moneys borrowed by the assessee in foreign currency for its payment, remained outstanding. The devaluation of the rupee in June 1966 would result in the increase of the price to say, Rs. 1, 20.000. It may be arguable whether this is a retrospective enhancement in the price or not. But it would be only reasonable to say that the actual cost has increased to Rs. 1, 20, 000 in June 1966 and that the assessee should be entitled to the grant of depreciation and other allowances at least thereafter, on the basis of the altered cost. This is what section 43-A provides. Another situation would be where, subsequent to the acquisition of the asset, substantial capital expenditure has been incurred thereon (not amounting to the addition of a separate asset on which depreciation, etc. could be independently allowed). Such expenditure is added, under the rules, in practice to the actual cost and allowance given thereon subsequently, vide : the third column in the table set out at p. 878 in Habib Hussain ( 1963 (48) ITR 859 (Bom)) . This is quite correct and fully accords with the departments interpretation of the provision. On the assessees interpretation, no such increased allowances can at all be granted as there is no other provision permitting the additional cost being taken into account as part of the actual cost even for years subsequent to the addition or alteration. In principle, therefore, we are unable to accept the contention that the actual cost cannot be determined year after year on the factual or legal position applicable for the relevant previous year and that the actual cost once determined cannot be altered except in the three situations outlined by counsel where the original figure itself requires a modification16. Examining the provisions with which we are concerned in the light of the principles succinctly summarised above, it will be apparent that what we are concerned with here is not at all a case of retrospective operation of the statute. It is not the case of the Revenue that the actual cost as determined in the assessment year 1962-63 should be applied to revise the computations for earlier years. All that the department says is that, though in respect of these particular assets, the assessee might have obtained depreciation for earlier assessment years on the basis of a higher figure, that will no longer be available in future and that the figure of actual cost should be taken not as was originally calculated but only at a lower figure for the assessment years 1962-63 and onwards. It is just the case of a provision, a part of the requisites for the operation of which is drawn from a time antecedent to its passingThis argument is based on the provisions of clause (c) of the proviso to Section 10(2)(vi) of the 1922 Act (corresponding to Section 34(3) of the 1961 Act) which lays down that the aggregate of all deductions in respect of depreciation made in the Act or its predecessor Act shall "in no case exceed the actual cost to the assessee of the building, machinery, plant, furniture, structure or work, as the case may be"If, on the basis of the depreciation already granted, the written down value of the asset becomes too low and the assessee is able to sell the asset for a higher price, the surplus is brought to tax. On the other hand, where the depreciation allowed is inadequate and the amount realised by the assessee on the sale, demolition or destruction of the asset is much less than the written down value, the assessee is allowed to write off the difference between the written down value and the scrap value of the asset. In other words, the Act has provided a machinery which ensures that the assessee gets by way of depreciation allowance which is correlated to reality. According to him, this right of the assessee, whether it is described as a vested right or an existing right, is affected by the provision with which we are presently concerned18. We are of the opinion that these contentions are unfounded. It is incorrect to view the position as if, when an assessee acquires an asset, he acquires a right to obtain depreciation thereon equal to the actual cost of the asset as originally determined for the purposes. The effect of clause (c) of the proviso to Section 10(2)(vi) of the 1922 Act and Section 34(3) of the 1961 Act is only this that, while allowing depreciation in respect of any asset the officer should be careful to see that the aggregate of the depreciation allowed to the assessee in respect of that asset does not exceed the actual cost of the asset. In other words, as and when the provision is applied for each and every assessment year and the depreciation on any asset is calculated, it should be ensured that the depreciation allowed does not exceed the actual cost of the asset. In other words, the actual cost referred to is not the actual cost as originally determined at the time of acquisition. Thus, in the cases before us, while examining whether a particular asset is entitled to any depreciation for the assessment year 1962-63, the officer will find that it has already secured depreciation much more than the actual cost of the asset as determined by him and will grant no further depreciation in respect thereof. It is no doubt true that in past years the asset had become eligible to amounts of depreciation the aggregate of which exceeds the actual cost as presently determined and, if that depreciation is deducted from the actual cost subsequently arrived at, a negative figure may result. But such a situation will arise even in the category of cases in which, according to counsel, the revision of actual cost is permissible. Thus, even in Karnani Industrial Bank ( 1954 (25) ITR 558 (Cal) cited by him, the assessee had obtained for earlier years depreciation far exceeding the real cost of the asset. This is an "anomaly" which arises because the assessee was erroneously granted higher depreciation than what he deserved. But, even here, there was no negative written down value in earlier years and, equally, there will be none in the year of revision as the effect of the proviso is not to produce a negative written down value but only to preclude further grant of depreciation on the asset in future. Read thus as a limitation on the maximum amount of depreciation that an assessee can claim in respect of a particular asset, there is no question of arriving at a negative written down value. We are, therefore, unable to accept the contention of counsel that the interpretation contended for by the Department operates against the well known principle that retrospective operation - assuming that the provision has a retrospective effect - should not be presumed where existing or past rights are interfered with19. Nor do we think that there is any doubt or ambiguity about the provision. It is clear and explicit, as already pointed out, that the actual cost has to be determined, in each assessment year, even of assets acquired before the commencement of the previous year relevant to the assessment year. Not only is this intention plain and clear, it does not create any injustice or hardship; on the contrary, it is only reasonable and just. It should be remembered that the object of the provision dealing with the grant of depreciation is, generally speaking, to enable him to get the capital expenditure incurred by him in acquiring the asset written off to his profits over the years though it is true that, in certain situations, the statute specifically relaxes this rigidity. In earlier years, he had been obtaining depreciation on a particular footing. But the language used lent itself to an interpretation that the could get a deduction even in respect of expenditure he did not incur. The correctness of this interpretation is not in doubt. Where a person purchases an asset, it may be correct to say that the cost of the asset does not change because a part of the cost is met by some one else. But the legislature had to decide whether an assessee should be allowed to claim an allowance of depreciation in respect of the asset on the artificial basis of the cost of the asset rather than what he has actually spent to acquire that asset and whether the wording of the original provision, as interpreted by courts, had not conferred an undue advantage or benefit on the assessee. This was not considered by the legislation. It accords with reason that the provision should be interpreted to say that, at least after the amendment, the assessee should not be allowed depreciation on the basis of the earlier figure of actual cost. It is, therefore, incorrect, in our opinion, to describe this provision as creating any undue hardship or injustice or inconvenience to an assesseeWe do not think that the decision is of any help in the present context. The nature of the provisions with which we are concerned and the mode of its operation are totally different. The use of the words "has been met" is very appropriate and proper in the present context once we understand the mechanics of the provision. As we have already explained, it is incontrovertible that, under Section 43(1) read with Section 43(6) the officer has to determine the actual cost for all assets, new and old, and the definition in Section 43(1) only requires that, at the time of doing so, he has to examine whether the actual cost has been fully laid out by the assessee or has been met by someone else in whole or in part. The words "has been met" squarely fit into this reading of the section and it is difficult to accept the suggestion that the use of the words "has been met" lends support to an interpretation restricting the definition in Section 43(1) to assets acquired in the previous yearThe second anomaly is said to be that the interpretation favoured by the Revenue is incompatible with the terms of Explanations 2, 4 and 6 to Section 43(6). We see no such difficulty. Explanations 2 and 4 fall in line with the suggested interpretation, once it is understood that the reference to "depreciation actually allowed" should be read subject to the limitation of clause (c) of the proviso to Section 10(2)(vi) [now Section 34(3)]. Explanation 6 offers no difficulty as the relationship as "parent" and "subsidiary" between the companies involved in the transfer for the purposes of this clause has to be determined as at the time of the transfer of the asset and will not be a wobbling or fluctuating one as suggested by counsel for the assessee. Another difficulty pointed out is that the interpretation put forward by the department might lead to difficulties in the calculation of assessable profits under Section 41(2) or the allowance under Section 32(1) (iii)In other words, the assessee will have to pay tax or Rs. 5, 000 by way of balancing charge though he had been allowed depreciation only to the extent of Rs. 2, 710. Again if the asset is sold for Rs. 2, 500 in the previous year relevant for assessment year 1963-64, according to the department he will have to pay a tax on Rs. 2, 500 whereas under the old provisions he would have got an allowance under Section 32(1)(iii). But this is only a seeming anomaly. For, the sums of Rs. 5, 000 and Rs. 2, 500 would be taxed not as a balancing charge but as capital gains which is quite consistent with the departments position that, the assessee having paid nothing for the asset, its actual cost should be taken at nil, a stand in which there is no absurdity. We do not, therefore, think that any difficulty or anomaly results from the interpretation suggested | 0 | 8,803 | 3,120 | ### Instruction:
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133 : 1976 (103) ITR 123 , 132 : 1977 AIR(SC) 552) relied upon by counsel 2. The language used in the provision 20. It was next suggested that there is an indication in the language of section 43(6) itself to show that it is available to be invoked only in respect of assets which had been acquired in earlier years. Reference is made in this context to the use of the words "as has been met" in Section 43(1) and the use of similar language in the notes on clauses of the corresponding provision in the Income Tax Bill, 1961 (42) ITR 161 (Supp)) It is argued that if the intention had been that the actual cost of assets which had been acquired earlier to the previous year should also be covered, the legislature would have used the words "as had been met". In support of this contention, Sri Dastur referred to the decision in Carson v. Carson and Stoyek ( 1964 (1) ALLER 681: 1964 (1) WLR 511). In that case Section 3 of the Matrimonial Causes Act, 1963, which came into operation on July 31, 1963, provided that "adultery which has been condoned shall not be capable of being revived". While it was quite clear that, as a result of this provision, no petition could rely on a course of conduct subsequent to July 31 as reviving previous condoned adultery, the question that arose was whether the section had retrospective effect and whether a course of conduct before that date could be relied upon as reviving previously condoned adultery. The question was answered in the negative. We do not think that the decision is of any help in the present context. The nature of the provisions with which we are concerned and the mode of its operation are totally different. The use of the words "has been met" is very appropriate and proper in the present context once we understand the mechanics of the provision. As we have already explained, it is incontrovertible that, under Section 43(1) read with Section 43(6) the officer has to determine the actual cost for all assets, new and old, and the definition in Section 43(1) only requires that, at the time of doing so, he has to examine whether the actual cost has been fully laid out by the assessee or has been met by someone else in whole or in part. The words "has been met" squarely fit into this reading of the section and it is difficult to accept the suggestion that the use of the words "has been met" lends support to an interpretation restricting the definition in Section 43(1) to assets acquired in the previous year 3. Absurdities and anomalies 21. It is contended that the Revenues interpretation will result in absurdities and anomalies. The first of these is said to be that it may lead to the computation of a negative written down value and consequent difficulties in applying various other statutory provisions. We have already negatived this contention and pointed out that the proviso to clause (c) really places a limitation on the depreciation deductible at any point of time and, hence, there can never be a negative written down value as contended. The second anomaly is said to be that the interpretation favoured by the Revenue is incompatible with the terms of Explanations 2, 4 and 6 to Section 43(6). We see no such difficulty. Explanations 2 and 4 fall in line with the suggested interpretation, once it is understood that the reference to "depreciation actually allowed" should be read subject to the limitation of clause (c) of the proviso to Section 10(2)(vi) [now Section 34(3)]. Explanation 6 offers no difficulty as the relationship as "parent" and "subsidiary" between the companies involved in the transfer for the purposes of this clause has to be determined as at the time of the transfer of the asset and will not be a wobbling or fluctuating one as suggested by counsel for the assessee. Another difficulty pointed out is that the interpretation put forward by the department might lead to difficulties in the calculation of assessable profits under Section 41(2) or the allowance under Section 32(1) (iii). Sri Ramachandran illustrate the difficulty by giving the instance of an asset purchased for, say, Rs. 10, 000 entirely with monies contributed by others. If the asset had been purchased in 1958 and was eligible for depreciation at 10 per cent., the assessee would have secured depreciation of Rs. 2, 710 in the assessment years 1959-60, 1960-61 and 1961-62. Suppose in the previous year relevant to the assessment year 1963-64, it is sold for Rs. 5, 000. Mr. Ramachandran points out that, according to the departments interpretation the actual cost of the asset will be nil and, therefore, its written down value at the end of the previous year relevant for the assessment year 1962-63 would be nil with the result that the entire sum of Rs. 5, 000 for which the asset is sold would become chargeable under Section 41(2). In other words, the assessee will have to pay tax or Rs. 5, 000 by way of balancing charge though he had been allowed depreciation only to the extent of Rs. 2, 710. Again if the asset is sold for Rs. 2, 500 in the previous year relevant for assessment year 1963-64, according to the department he will have to pay a tax on Rs. 2, 500 whereas under the old provisions he would have got an allowance under Section 32(1)(iii). But this is only a seeming anomaly. For, the sums of Rs. 5, 000 and Rs. 2, 500 would be taxed not as a balancing charge but as capital gains which is quite consistent with the departments position that, the assessee having paid nothing for the asset, its actual cost should be taken at nil, a stand in which there is no absurdity. We do not, therefore, think that any difficulty or anomaly results from the interpretation suggested
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exceeding the real cost of the asset. This is an "anomaly" which arises because the assessee was erroneously granted higher depreciation than what he deserved. But, even here, there was no negative written down value in earlier years and, equally, there will be none in the year of revision as the effect of the proviso is not to produce a negative written down value but only to preclude further grant of depreciation on the asset in future. Read thus as a limitation on the maximum amount of depreciation that an assessee can claim in respect of a particular asset, there is no question of arriving at a negative written down value. We are, therefore, unable to accept the contention of counsel that the interpretation contended for by the Department operates against the well known principle that retrospective operation - assuming that the provision has a retrospective effect - should not be presumed where existing or past rights are interfered with19. Nor do we think that there is any doubt or ambiguity about the provision. It is clear and explicit, as already pointed out, that the actual cost has to be determined, in each assessment year, even of assets acquired before the commencement of the previous year relevant to the assessment year. Not only is this intention plain and clear, it does not create any injustice or hardship; on the contrary, it is only reasonable and just. It should be remembered that the object of the provision dealing with the grant of depreciation is, generally speaking, to enable him to get the capital expenditure incurred by him in acquiring the asset written off to his profits over the years though it is true that, in certain situations, the statute specifically relaxes this rigidity. In earlier years, he had been obtaining depreciation on a particular footing. But the language used lent itself to an interpretation that the could get a deduction even in respect of expenditure he did not incur. The correctness of this interpretation is not in doubt. Where a person purchases an asset, it may be correct to say that the cost of the asset does not change because a part of the cost is met by some one else. But the legislature had to decide whether an assessee should be allowed to claim an allowance of depreciation in respect of the asset on the artificial basis of the cost of the asset rather than what he has actually spent to acquire that asset and whether the wording of the original provision, as interpreted by courts, had not conferred an undue advantage or benefit on the assessee. This was not considered by the legislation. It accords with reason that the provision should be interpreted to say that, at least after the amendment, the assessee should not be allowed depreciation on the basis of the earlier figure of actual cost. It is, therefore, incorrect, in our opinion, to describe this provision as creating any undue hardship or injustice or inconvenience to an assesseeWe do not think that the decision is of any help in the present context. The nature of the provisions with which we are concerned and the mode of its operation are totally different. The use of the words "has been met" is very appropriate and proper in the present context once we understand the mechanics of the provision. As we have already explained, it is incontrovertible that, under Section 43(1) read with Section 43(6) the officer has to determine the actual cost for all assets, new and old, and the definition in Section 43(1) only requires that, at the time of doing so, he has to examine whether the actual cost has been fully laid out by the assessee or has been met by someone else in whole or in part. The words "has been met" squarely fit into this reading of the section and it is difficult to accept the suggestion that the use of the words "has been met" lends support to an interpretation restricting the definition in Section 43(1) to assets acquired in the previous yearThe second anomaly is said to be that the interpretation favoured by the Revenue is incompatible with the terms of Explanations 2, 4 and 6 to Section 43(6). We see no such difficulty. Explanations 2 and 4 fall in line with the suggested interpretation, once it is understood that the reference to "depreciation actually allowed" should be read subject to the limitation of clause (c) of the proviso to Section 10(2)(vi) [now Section 34(3)]. Explanation 6 offers no difficulty as the relationship as "parent" and "subsidiary" between the companies involved in the transfer for the purposes of this clause has to be determined as at the time of the transfer of the asset and will not be a wobbling or fluctuating one as suggested by counsel for the assessee. Another difficulty pointed out is that the interpretation put forward by the department might lead to difficulties in the calculation of assessable profits under Section 41(2) or the allowance under Section 32(1) (iii)In other words, the assessee will have to pay tax or Rs. 5, 000 by way of balancing charge though he had been allowed depreciation only to the extent of Rs. 2, 710. Again if the asset is sold for Rs. 2, 500 in the previous year relevant for assessment year 1963-64, according to the department he will have to pay a tax on Rs. 2, 500 whereas under the old provisions he would have got an allowance under Section 32(1)(iii). But this is only a seeming anomaly. For, the sums of Rs. 5, 000 and Rs. 2, 500 would be taxed not as a balancing charge but as capital gains which is quite consistent with the departments position that, the assessee having paid nothing for the asset, its actual cost should be taken at nil, a stand in which there is no absurdity. We do not, therefore, think that any difficulty or anomaly results from the interpretation suggested
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Registrar Of High Court Of Madhya Pradesh And Another Vs. B. A. Nigam And Others | the High Court therefore the resolution of the High Court of May 3, 1968 cannot affect him adversely. The High Court took the view that as for some years past, a principle for selection had been introduced that before a Civil Judge was promoted to the post of an Additional District and Sessions Judge, it was essential that he should have exercised the powers of Civil Judge, Class I, for a period, however short and that principle had a rational relation to the suitability of Civil Judges for promotion to posts of Additional District and Sessions Judges and the respondent No. I could not legitimately complain, as he did not have that qualification, and he could not be selected for promotion only on the basis of seniority. They also took the view that since the respondent No. I had not acquired the qualification required for promotion, his claim for such promotion should be regarded as having been considered and rejected by implication till November 30, 1968 when he was allowed to exercise the powers of Civil Judge, Class I. Having held rightly, according to us, that till November 30, 1968 the respondent No. I was not qualified to be considered for promotion as an Additional District and Sessions Judge, the High Court curiously enough issued a writ of mandamus directing that the respondents claim for promotion should be considered in relation to the claims of his juniors and if he was found fit he should be allowed the consequential benefits including fixing of seniority in the cadre of Additional District and Sessions Judges. In mentioning about the juniors of the respondent No. I the learned Judges were referring to the original seniority in the cadre of Civil Judges.3. Once it is found that experience as Civil Judge, Class I, at least for a short period, is a necessary qualification for promotion as Additional District and Sessions Judge and that such a requirement has a rational relation to the question at issue, it would be surprising to hold that a man, who again and again had been found unfit to be posted as Civil Judge, Class I, in comparison with others, who were his juniors in service, his claim for promotion as Additional District and Sessions Judge should be decided not on the basis of the date on which he was found fit to exercise the powers of Civil Judge, Class I, but on the basis of the date of his entry into service. Out of the 41 people whom the respondent No. I had made respondent to his petition, 10 people were found fit in 1962 and one in 1963.Then we have 3 others whose claims were considered on 3-5-66 along with that of the respondent No. I and found superior to his. There are 8 others whose claims were compared to the respondents on 12-8-66 and found to be superior to his. Seventeen others, whose claims were compared to the respondents on 17-4-1967 were found to be superior to the respondent and two were found superior to the respondent on 7-11-67.It would, therefore, be most surprising that a man who in comparison to all these people was not found fit to be promoted as Civil Judge, Class I, should as soon as he was found fit on 30-11-68 go over the heads of all the others who were found superior to him on a number of earlier occasions. While it is true that the Service Rules do not provide for Civil Judges being classed as Class I Civil Judges and Class II Civil Judges, we cannot ignore the fact that the jurisdiction of the Class II Civil Judges is only upto Rs. 5,000 and that of Class I Civil Judges upto Rs. 10,000. The resolution of the High Court of May 1968 should not be interpreted literally. If it is done in its proper background it would be appreciated that what was done was not to create a new class of Civil Judges called Class I Civil Judges but to have a list of persons who were qualified to be posted as Class I Civil Judges and to provide that fitness for being posted as Class I Civil Judges and acting as such for some time should be considered as a qualification for promotion as Additional District and Sessions Judge. We have already pointed out that the High Court has rightly held that such a provision cannot be said to be irrelevant to the question of promotion from among the Civil Judges to Additional District and Sessions Judge. We are firmly of opinion that in the face of these circumstances to allow the respondent No. I to be considered for promotion as Additional District and Sessions Judge in preference to others who had been found better qualified to be posted as Civil Judges Class I much earlier merely on the basis of the date of his entry into service would be a mockery of all canons of fair play and justice. In deed, we cannot help feeling that his being found fit for promotion to Class I Civil Judge on 30-11-68 seems to have been done more as a matter of grace and he should be more than happy to have got what he got. The fact that before 3-5-66 there might have been cases of Civil Judges being posted as Presiding Judges of Civil Courts Class I due to various exigencies of service cannot in any case affect the merits of this case. As we have already indicated, while it is not impossible it is improbable that compared to those people who had been posted as Class I Civil Judges before 3-5-66 the respondent No. I would have been found better qualified. At any rate we can see no justification for reopening cases that had been closed more than 10 years ago at the instance of an officer whose record of service, to say the least, is not a shining one. We see no merits in his claim. | 1[ds]While it is true that the Service Rules do not provide for Civil Judges being classed as Class I Civil Judges and Class II Civil Judges, we cannot ignore the fact that the jurisdiction of the Class II Civil Judges is only upto Rs. 5,000 and that of Class I Civil Judges upto Rs. 10,000. The resolution of the High Court of May 1968 should not be interpreted literally. If it is done in its proper background it would be appreciated that what was done was not to create a new class of Civil Judges called Class I Civil Judges but to have a list of persons who were qualified to be posted as Class I Civil Judges and to provide that fitness for being posted as Class I Civil Judges and acting as such for some time should be considered as a qualification for promotion as Additional District and Sessions Judge. We have already pointed out that the High Court has rightly held that such a provision cannot be said to be irrelevant to the question of promotion from among the Civil Judges to Additional District and Sessions Judge. We are firmly of opinion that in the face of these circumstances to allow the respondent No. I to be considered for promotion as Additional District and Sessions Judge in preference to others who had been found better qualified to be posted as Civil Judges Class I much earlier merely on the basis of the date of his entry into service would be a mockery of all canons of fair play and justice. In deed, we cannot help feeling that his being found fit for promotion to Class I Civil Judge on 30-11-68 seems to have been done more as a matter of grace and he should be more than happy to have got what he got. The fact that before 3-5-66 there might have been cases of Civil Judges being posted as Presiding Judges of Civil Courts Class I due to various exigencies of service cannot in any case affect the merits of this case. As we have already indicated, while it is not impossible it is improbable that compared to those people who had been posted as Class I Civil Judges before 3-5-66 the respondent No. I would have been found better qualified. At any rate we can see no justification for reopening cases that had been closed more than 10 years ago at the instance of an officer whose record of service, to say the least, is not a shining one. We see no merits in his claim. | 1 | 1,902 | 458 | ### Instruction:
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the High Court therefore the resolution of the High Court of May 3, 1968 cannot affect him adversely. The High Court took the view that as for some years past, a principle for selection had been introduced that before a Civil Judge was promoted to the post of an Additional District and Sessions Judge, it was essential that he should have exercised the powers of Civil Judge, Class I, for a period, however short and that principle had a rational relation to the suitability of Civil Judges for promotion to posts of Additional District and Sessions Judges and the respondent No. I could not legitimately complain, as he did not have that qualification, and he could not be selected for promotion only on the basis of seniority. They also took the view that since the respondent No. I had not acquired the qualification required for promotion, his claim for such promotion should be regarded as having been considered and rejected by implication till November 30, 1968 when he was allowed to exercise the powers of Civil Judge, Class I. Having held rightly, according to us, that till November 30, 1968 the respondent No. I was not qualified to be considered for promotion as an Additional District and Sessions Judge, the High Court curiously enough issued a writ of mandamus directing that the respondents claim for promotion should be considered in relation to the claims of his juniors and if he was found fit he should be allowed the consequential benefits including fixing of seniority in the cadre of Additional District and Sessions Judges. In mentioning about the juniors of the respondent No. I the learned Judges were referring to the original seniority in the cadre of Civil Judges.3. Once it is found that experience as Civil Judge, Class I, at least for a short period, is a necessary qualification for promotion as Additional District and Sessions Judge and that such a requirement has a rational relation to the question at issue, it would be surprising to hold that a man, who again and again had been found unfit to be posted as Civil Judge, Class I, in comparison with others, who were his juniors in service, his claim for promotion as Additional District and Sessions Judge should be decided not on the basis of the date on which he was found fit to exercise the powers of Civil Judge, Class I, but on the basis of the date of his entry into service. Out of the 41 people whom the respondent No. I had made respondent to his petition, 10 people were found fit in 1962 and one in 1963.Then we have 3 others whose claims were considered on 3-5-66 along with that of the respondent No. I and found superior to his. There are 8 others whose claims were compared to the respondents on 12-8-66 and found to be superior to his. Seventeen others, whose claims were compared to the respondents on 17-4-1967 were found to be superior to the respondent and two were found superior to the respondent on 7-11-67.It would, therefore, be most surprising that a man who in comparison to all these people was not found fit to be promoted as Civil Judge, Class I, should as soon as he was found fit on 30-11-68 go over the heads of all the others who were found superior to him on a number of earlier occasions. While it is true that the Service Rules do not provide for Civil Judges being classed as Class I Civil Judges and Class II Civil Judges, we cannot ignore the fact that the jurisdiction of the Class II Civil Judges is only upto Rs. 5,000 and that of Class I Civil Judges upto Rs. 10,000. The resolution of the High Court of May 1968 should not be interpreted literally. If it is done in its proper background it would be appreciated that what was done was not to create a new class of Civil Judges called Class I Civil Judges but to have a list of persons who were qualified to be posted as Class I Civil Judges and to provide that fitness for being posted as Class I Civil Judges and acting as such for some time should be considered as a qualification for promotion as Additional District and Sessions Judge. We have already pointed out that the High Court has rightly held that such a provision cannot be said to be irrelevant to the question of promotion from among the Civil Judges to Additional District and Sessions Judge. We are firmly of opinion that in the face of these circumstances to allow the respondent No. I to be considered for promotion as Additional District and Sessions Judge in preference to others who had been found better qualified to be posted as Civil Judges Class I much earlier merely on the basis of the date of his entry into service would be a mockery of all canons of fair play and justice. In deed, we cannot help feeling that his being found fit for promotion to Class I Civil Judge on 30-11-68 seems to have been done more as a matter of grace and he should be more than happy to have got what he got. The fact that before 3-5-66 there might have been cases of Civil Judges being posted as Presiding Judges of Civil Courts Class I due to various exigencies of service cannot in any case affect the merits of this case. As we have already indicated, while it is not impossible it is improbable that compared to those people who had been posted as Class I Civil Judges before 3-5-66 the respondent No. I would have been found better qualified. At any rate we can see no justification for reopening cases that had been closed more than 10 years ago at the instance of an officer whose record of service, to say the least, is not a shining one. We see no merits in his claim.
### Response:
1
### Explanation:
While it is true that the Service Rules do not provide for Civil Judges being classed as Class I Civil Judges and Class II Civil Judges, we cannot ignore the fact that the jurisdiction of the Class II Civil Judges is only upto Rs. 5,000 and that of Class I Civil Judges upto Rs. 10,000. The resolution of the High Court of May 1968 should not be interpreted literally. If it is done in its proper background it would be appreciated that what was done was not to create a new class of Civil Judges called Class I Civil Judges but to have a list of persons who were qualified to be posted as Class I Civil Judges and to provide that fitness for being posted as Class I Civil Judges and acting as such for some time should be considered as a qualification for promotion as Additional District and Sessions Judge. We have already pointed out that the High Court has rightly held that such a provision cannot be said to be irrelevant to the question of promotion from among the Civil Judges to Additional District and Sessions Judge. We are firmly of opinion that in the face of these circumstances to allow the respondent No. I to be considered for promotion as Additional District and Sessions Judge in preference to others who had been found better qualified to be posted as Civil Judges Class I much earlier merely on the basis of the date of his entry into service would be a mockery of all canons of fair play and justice. In deed, we cannot help feeling that his being found fit for promotion to Class I Civil Judge on 30-11-68 seems to have been done more as a matter of grace and he should be more than happy to have got what he got. The fact that before 3-5-66 there might have been cases of Civil Judges being posted as Presiding Judges of Civil Courts Class I due to various exigencies of service cannot in any case affect the merits of this case. As we have already indicated, while it is not impossible it is improbable that compared to those people who had been posted as Class I Civil Judges before 3-5-66 the respondent No. I would have been found better qualified. At any rate we can see no justification for reopening cases that had been closed more than 10 years ago at the instance of an officer whose record of service, to say the least, is not a shining one. We see no merits in his claim.
|
Capt.M.Paul Anthony Vs. Bharat Gold Mines Ltd | within a reasonable time, affects a government servant injuriously. The very expression `substance allowance has an undeniable penal significance. The dictionary meaning of the word `Subsist as given in Shorter Oxford English Dictionary, Vol. II at p. 2171 is "to remain alive as on food: to continue to exist". "Subsistence" means -- means of supporting life, especially a minimum livelihood." (Emphasis supplied) 27. If, therefore, even that amount is not paid, then the very object of paying the reduced salary to the employee during the period of suspension would be frustrated. The act of non-payment of Subsistence Allowance can be likened to slow-poisoning as the employee, if not permitted to sustain himself on account of non-payment of Subsistence Allowance, would gradually starve himself to death. 28. On joining Govt. service, a person does not mortgage or barter away his basic rights as a human being, including his fundamental rights, in favour of the Govt. The Govt., only because it has the power to appoint does not become the master of the body and soul of the employee. The Govt. by providing job opportunities to its citizens only fulfils its obligations under the Constitution, including the Directive Principles of the State Policy. The employee, on taking up an employment only agrees to subject himself to the regulatory measures concerning his service. His association with the Government or any other employer, like Instrumentalities of the Govt. or Statutory or Autonomous Corporations etc., is regulated by the terms of contract of service or Service Rules made by the Central or the State Govt. under the Proviso to Article 309 of the Constitution or other Statutory Rules including Certificate Standing Orders. The fundamental rights, including the Right to Life under Article 21 of the Constitution of the basic human rights are not surrendered by the employee. The provision for payment of Subsistence Allowance made in the Service Rules only ensures non-violation of the right to life of the employee. That was the reason why this Court in State of Maharashtra v. Chanderbhan, 1983(3) SCR 337 : 1983(3) SCC 387 : AIR 1983 SC 803 struck down a Service Rule which provided for payment of a nominal amount of Rupee one as Subsistence Allowance to an employee placed under suspension. This decision was followed in Fakirbhai Fulabhai Solanki v. Presiding Officer and another, 1986(3) SCC 131 : 1986(2) SCR 1059 : AIR 1986 SC 1168 and it was held in that case that if an employee could not attend the departmental proceedings on account of financial stringencies caused by non-payment of Subsistence Allowance, and thereby could not undertake a journey away from his home to attend the departmental proceedings, the order of punishment, including the whole proceedings would stand vitiated. For this purpose, reliance was also placed on an earlier decision in Ghanshyam Dass Shrivastava v. State of Madhya Pradesh, 1983(1) SCC 656 : AIR 1973 SC 1183 . 29. The question whether the appellant was unable to go to Kolar Gold Fields to participate in the inquiry proceedings on account of non-payment of Subsistence Allowance may not have been raised before the Inquiry Officer, but it was positively raised before the High Court and has also been raised before us. Since it is not disputed that the Subsistence Allowance was not paid to the appellant during the pendency of the departmental proceedings, we have to take strong notice of it, particularly as it is not suggested by the respondents that the appellant had any other source of income.30. Since in the instant case the appellant was not provided any Subsistence Allowance during the period of suspension and the adjournment prayed for by him on account of his illness, duly supported by medical certificates, was refused resulting in ex parte proceedings against him, we are of the opinion that the appellant has been punished in total violation of the principles of natural justice and he was literally not afforded any opportunity of hearing. Moreover, as pleaded by the appellant before the High Court as also before us that on account of his penury occasioned by non-payment of Subsistence Allowance, he could not undertake a journey to attend the disciplinary proceedings, the findings recorded by the Inquiry Officer at such proceedings, which held ex parte, stand vitiated.31. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely, `the raid conducted at the appellants residence and recovery of incriminating articles therefrom. The findings recorded by the Inquiry Officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by Police Officers and Panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the Inquiry Officer and the Inquiry Officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the "raid and recovery" at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings, to stand.32. Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case. | 1[ds]21. The conclusions which are deducible from various decisions of this Court referred to above areDepartmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge sheet.(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the Departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, administration may get rid of him at the earliest.In the instant case, the Superintendent of Police had raised the residential premises of the appellant and had recovered a mining sponge gold ball weighing 4.5 grams and 1276 grams of `gold bearing sand. It was on this basis that criminal case was launched against him. On the same set of facts, constituting the raid and recovery, departmental proceedings were initiated against the appellant as the "recovery" was treated to be a `misconduct. On the service of the charge sheet, the appellant raised an objection that the departmental proceedings may be stayed as the basis of these proceedings was the raid conducted at his residence on which basis a criminal case had already been launched against him. He requested that the decision of the criminal case may be awaited, but his request was turned down. The request made a second time for that purpose also met the same fate. When the appellant approached the High Court, liberty was given to the respondents to stay the departmental proceedings if they considered it appropriate but they were directed to dispose of the appellants appeal against the order by which he was placed under suspension. The order of the High Court had no effect on the respondents and they decided to continue with the departmental proceedings which could not be attended by the appellant as he informed the Inquiry Officer that he was ill. His request for adjournment of the departmental proceedings on that ground was not acceded to and the proceedings continued ex parte against him. He was ultimately found guilty of the charges and was dismissed fromit is not disputed that the Subsistence Allowance was not paid to the appellant during the pendency of the departmental proceedings, we have to take strong notice of it, particularly as it is not suggested by the respondents that the appellant had any other source of income.30. Since in the instant case the appellant was not provided any Subsistence Allowance during the period of suspension and the adjournment prayed for by him on account of his illness, duly supported by medical certificates, was refused resulting in ex parte proceedings against him, we are of the opinion that the appellant has been punished in total violation of the principles of natural justice and he was literally not afforded any opportunity of hearing. Moreover, as pleaded by the appellant before the High Court as also before us that on account of his penury occasioned by non-payment of Subsistence Allowance, he could not undertake a journey to attend the disciplinary proceedings, the findings recorded by the Inquiry Officer at such proceedings, which held ex parte, stand vitiated.31. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely, `the raid conducted at the appellants residence and recovery of incriminating articles therefrom. The findings recorded by the Inquiry Officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by Police Officers and Panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the Inquiry Officer and the Inquiry Officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the "raid and recovery" at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings, to stand.32. Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case. | 1 | 6,354 | 1,092 | ### 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:
within a reasonable time, affects a government servant injuriously. The very expression `substance allowance has an undeniable penal significance. The dictionary meaning of the word `Subsist as given in Shorter Oxford English Dictionary, Vol. II at p. 2171 is "to remain alive as on food: to continue to exist". "Subsistence" means -- means of supporting life, especially a minimum livelihood." (Emphasis supplied) 27. If, therefore, even that amount is not paid, then the very object of paying the reduced salary to the employee during the period of suspension would be frustrated. The act of non-payment of Subsistence Allowance can be likened to slow-poisoning as the employee, if not permitted to sustain himself on account of non-payment of Subsistence Allowance, would gradually starve himself to death. 28. On joining Govt. service, a person does not mortgage or barter away his basic rights as a human being, including his fundamental rights, in favour of the Govt. The Govt., only because it has the power to appoint does not become the master of the body and soul of the employee. The Govt. by providing job opportunities to its citizens only fulfils its obligations under the Constitution, including the Directive Principles of the State Policy. The employee, on taking up an employment only agrees to subject himself to the regulatory measures concerning his service. His association with the Government or any other employer, like Instrumentalities of the Govt. or Statutory or Autonomous Corporations etc., is regulated by the terms of contract of service or Service Rules made by the Central or the State Govt. under the Proviso to Article 309 of the Constitution or other Statutory Rules including Certificate Standing Orders. The fundamental rights, including the Right to Life under Article 21 of the Constitution of the basic human rights are not surrendered by the employee. The provision for payment of Subsistence Allowance made in the Service Rules only ensures non-violation of the right to life of the employee. That was the reason why this Court in State of Maharashtra v. Chanderbhan, 1983(3) SCR 337 : 1983(3) SCC 387 : AIR 1983 SC 803 struck down a Service Rule which provided for payment of a nominal amount of Rupee one as Subsistence Allowance to an employee placed under suspension. This decision was followed in Fakirbhai Fulabhai Solanki v. Presiding Officer and another, 1986(3) SCC 131 : 1986(2) SCR 1059 : AIR 1986 SC 1168 and it was held in that case that if an employee could not attend the departmental proceedings on account of financial stringencies caused by non-payment of Subsistence Allowance, and thereby could not undertake a journey away from his home to attend the departmental proceedings, the order of punishment, including the whole proceedings would stand vitiated. For this purpose, reliance was also placed on an earlier decision in Ghanshyam Dass Shrivastava v. State of Madhya Pradesh, 1983(1) SCC 656 : AIR 1973 SC 1183 . 29. The question whether the appellant was unable to go to Kolar Gold Fields to participate in the inquiry proceedings on account of non-payment of Subsistence Allowance may not have been raised before the Inquiry Officer, but it was positively raised before the High Court and has also been raised before us. Since it is not disputed that the Subsistence Allowance was not paid to the appellant during the pendency of the departmental proceedings, we have to take strong notice of it, particularly as it is not suggested by the respondents that the appellant had any other source of income.30. Since in the instant case the appellant was not provided any Subsistence Allowance during the period of suspension and the adjournment prayed for by him on account of his illness, duly supported by medical certificates, was refused resulting in ex parte proceedings against him, we are of the opinion that the appellant has been punished in total violation of the principles of natural justice and he was literally not afforded any opportunity of hearing. Moreover, as pleaded by the appellant before the High Court as also before us that on account of his penury occasioned by non-payment of Subsistence Allowance, he could not undertake a journey to attend the disciplinary proceedings, the findings recorded by the Inquiry Officer at such proceedings, which held ex parte, stand vitiated.31. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely, `the raid conducted at the appellants residence and recovery of incriminating articles therefrom. The findings recorded by the Inquiry Officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by Police Officers and Panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the Inquiry Officer and the Inquiry Officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the "raid and recovery" at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings, to stand.32. Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case.
### Response:
1
### Explanation:
21. The conclusions which are deducible from various decisions of this Court referred to above areDepartmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge sheet.(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the Departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, administration may get rid of him at the earliest.In the instant case, the Superintendent of Police had raised the residential premises of the appellant and had recovered a mining sponge gold ball weighing 4.5 grams and 1276 grams of `gold bearing sand. It was on this basis that criminal case was launched against him. On the same set of facts, constituting the raid and recovery, departmental proceedings were initiated against the appellant as the "recovery" was treated to be a `misconduct. On the service of the charge sheet, the appellant raised an objection that the departmental proceedings may be stayed as the basis of these proceedings was the raid conducted at his residence on which basis a criminal case had already been launched against him. He requested that the decision of the criminal case may be awaited, but his request was turned down. The request made a second time for that purpose also met the same fate. When the appellant approached the High Court, liberty was given to the respondents to stay the departmental proceedings if they considered it appropriate but they were directed to dispose of the appellants appeal against the order by which he was placed under suspension. The order of the High Court had no effect on the respondents and they decided to continue with the departmental proceedings which could not be attended by the appellant as he informed the Inquiry Officer that he was ill. His request for adjournment of the departmental proceedings on that ground was not acceded to and the proceedings continued ex parte against him. He was ultimately found guilty of the charges and was dismissed fromit is not disputed that the Subsistence Allowance was not paid to the appellant during the pendency of the departmental proceedings, we have to take strong notice of it, particularly as it is not suggested by the respondents that the appellant had any other source of income.30. Since in the instant case the appellant was not provided any Subsistence Allowance during the period of suspension and the adjournment prayed for by him on account of his illness, duly supported by medical certificates, was refused resulting in ex parte proceedings against him, we are of the opinion that the appellant has been punished in total violation of the principles of natural justice and he was literally not afforded any opportunity of hearing. Moreover, as pleaded by the appellant before the High Court as also before us that on account of his penury occasioned by non-payment of Subsistence Allowance, he could not undertake a journey to attend the disciplinary proceedings, the findings recorded by the Inquiry Officer at such proceedings, which held ex parte, stand vitiated.31. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely, `the raid conducted at the appellants residence and recovery of incriminating articles therefrom. The findings recorded by the Inquiry Officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by Police Officers and Panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the Inquiry Officer and the Inquiry Officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the "raid and recovery" at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings, to stand.32. Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case.
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S.Narayan Iyer Vs. Union Of India & Anr | RAY, C.J.1. This appeal is by certificate from the judgment dated 28 March 1469 of the High Court of Madras. The question in this appeal is whether the appellant in a writ petition can challenge the telephone rates and charges and obtain any relief in that behalf.2. The appellant is a retired District Manager (Telephones), Madras. He filed a writ petition in the High Court for a writ of prohibition, directing the General Manager (Telephones), Madras to forbear from preferred to the Appellate Tribunal but that too proved abortive. The Tribunal, however, referred the following question of law for the opinion of the High Court:-"-----------------------enforcing the revised Telephone Tariff as per the Indian Telegraph Amendment Rules, 196 6. Under the rules, the rental and call charges were increased by 50 per cent and Trunk call charges by about 30 to 35 per cent. The petitioner alleged that the telephone system is a public utility service and not a Revenue earning establishment and the charges can be only in the nature of a fee which must be commensurate with the cost of rendering the service. The petitioner further alleged that the loss incurred by the Government in another establishment service is not a legitimate ground for raising telephone rates."3. The Trial Court held that Telephone Tariff was unjust and unreasonable. The Trial Court allowed the writ petition.4. The High Court on appeal held that the High Court could not interfere with the Tariff. The High Court said that the principal upon which public utility rates regulation as has developed in the United States is not applicable here in our country.5. It should be said at the outset that there was some discussion in the judgment on Article 19 but counsel for the appellant properly abandoned any reference to Article 19. The appellants contentions are three. First, the expression. "rates" in section 7(2) of the Indian Telegraph Act means rates which are to be determined should be fair, just and reasonable from the point of view of both the consumer and the producer. Second, the Court has jurisdiction to determine whether the rates filed by the Government are reasonable. Third, the rates are increased expressly for the purpose of off-setting the E losses in the Post and Telegraph Services. If a proper allocation. is made according to proper commercial accounting it will be found that there is a wrongful deduction of crores of rupees as revenue expense and unlawful debit. These errors in the accounting have resulted in reducing the profits earned by the Telephones.6. There are three principal reasons why the writ petition is incompetent and not maintainable and the appeal should fail. First, when any subscriber to a telephone enters into a contract with the State, the subscriber has the option to enter into a contract or not. If he does so, he has to pay the rates which are charged by the State for installation. A subscriber cannot say that the rates are not fair. No one is compelling one to subscribe. Second. Telephone Tariff is subordinate legislation and a legislative process. Under Indian Telegraph Act, section 7 empowers the Central Government to make rules inter alia for rates. These rules are laid before each House of Parliament. The rules take effect when they are passed by the Parliament. Third, the question of rates is first gone into by the Tariff Enquiry Committee. The Committee is headed by non officials. The Tariff rates are placed before the House in the shape of Budget proposals. The Parliament goes into all the Budget proposals. The rates are sanctioned by the Parliament. The rates. therefore, become a legislative policy as well as a legislative process.7. The Courts have no jurisdiction under Article 226 to go into reasonableness of rates. These rates are decided as policy matter in fiscal planning. There is legislative prescription of rates. Rate s are a matter for legislative judgment and not for judicial determination.8. | 0[ds]These errors in the accounting have resulted in reducing the profits earned by theare three principal reasons why the writ petition is incompetent and not maintainable and the appeal should fail. First, when any subscriber to a telephone enters into a contract with the State, the subscriber has the option to enter into a contract or not. If he does so, he has to pay the rates which are charged by the State for installation. A subscriber cannot say that the rates are not fair. No one is compelling one to subscribe. Second. Telephone Tariff is subordinate legislation and a legislative process. Under Indian Telegraph Act, section 7 empowers the Central Government to make rules inter alia for rates. These rules are laid before each House of Parliament. The rules take effect when they are passed by the Parliament. Third, the question of rates is first gone into by the Tariff Enquiry Committee. The Committee is headed by non officials. The Tariff rates are placed before the House in the shape of Budget proposals. The Parliament goes into all the Budget proposals. The rates are sanctioned by the Parliament. The rates. therefore, become a legislative policy as well as a legislativeCourts have no jurisdiction under Article 226 to go into reasonableness of rates. These rates are decided as policy matter in fiscal planning. There is legislative prescription of rates. Rate s are a matter for legislative judgment and not for judicial determination. | 0 | 744 | 273 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
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RAY, C.J.1. This appeal is by certificate from the judgment dated 28 March 1469 of the High Court of Madras. The question in this appeal is whether the appellant in a writ petition can challenge the telephone rates and charges and obtain any relief in that behalf.2. The appellant is a retired District Manager (Telephones), Madras. He filed a writ petition in the High Court for a writ of prohibition, directing the General Manager (Telephones), Madras to forbear from preferred to the Appellate Tribunal but that too proved abortive. The Tribunal, however, referred the following question of law for the opinion of the High Court:-"-----------------------enforcing the revised Telephone Tariff as per the Indian Telegraph Amendment Rules, 196 6. Under the rules, the rental and call charges were increased by 50 per cent and Trunk call charges by about 30 to 35 per cent. The petitioner alleged that the telephone system is a public utility service and not a Revenue earning establishment and the charges can be only in the nature of a fee which must be commensurate with the cost of rendering the service. The petitioner further alleged that the loss incurred by the Government in another establishment service is not a legitimate ground for raising telephone rates."3. The Trial Court held that Telephone Tariff was unjust and unreasonable. The Trial Court allowed the writ petition.4. The High Court on appeal held that the High Court could not interfere with the Tariff. The High Court said that the principal upon which public utility rates regulation as has developed in the United States is not applicable here in our country.5. It should be said at the outset that there was some discussion in the judgment on Article 19 but counsel for the appellant properly abandoned any reference to Article 19. The appellants contentions are three. First, the expression. "rates" in section 7(2) of the Indian Telegraph Act means rates which are to be determined should be fair, just and reasonable from the point of view of both the consumer and the producer. Second, the Court has jurisdiction to determine whether the rates filed by the Government are reasonable. Third, the rates are increased expressly for the purpose of off-setting the E losses in the Post and Telegraph Services. If a proper allocation. is made according to proper commercial accounting it will be found that there is a wrongful deduction of crores of rupees as revenue expense and unlawful debit. These errors in the accounting have resulted in reducing the profits earned by the Telephones.6. There are three principal reasons why the writ petition is incompetent and not maintainable and the appeal should fail. First, when any subscriber to a telephone enters into a contract with the State, the subscriber has the option to enter into a contract or not. If he does so, he has to pay the rates which are charged by the State for installation. A subscriber cannot say that the rates are not fair. No one is compelling one to subscribe. Second. Telephone Tariff is subordinate legislation and a legislative process. Under Indian Telegraph Act, section 7 empowers the Central Government to make rules inter alia for rates. These rules are laid before each House of Parliament. The rules take effect when they are passed by the Parliament. Third, the question of rates is first gone into by the Tariff Enquiry Committee. The Committee is headed by non officials. The Tariff rates are placed before the House in the shape of Budget proposals. The Parliament goes into all the Budget proposals. The rates are sanctioned by the Parliament. The rates. therefore, become a legislative policy as well as a legislative process.7. The Courts have no jurisdiction under Article 226 to go into reasonableness of rates. These rates are decided as policy matter in fiscal planning. There is legislative prescription of rates. Rate s are a matter for legislative judgment and not for judicial determination.8.
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These errors in the accounting have resulted in reducing the profits earned by theare three principal reasons why the writ petition is incompetent and not maintainable and the appeal should fail. First, when any subscriber to a telephone enters into a contract with the State, the subscriber has the option to enter into a contract or not. If he does so, he has to pay the rates which are charged by the State for installation. A subscriber cannot say that the rates are not fair. No one is compelling one to subscribe. Second. Telephone Tariff is subordinate legislation and a legislative process. Under Indian Telegraph Act, section 7 empowers the Central Government to make rules inter alia for rates. These rules are laid before each House of Parliament. The rules take effect when they are passed by the Parliament. Third, the question of rates is first gone into by the Tariff Enquiry Committee. The Committee is headed by non officials. The Tariff rates are placed before the House in the shape of Budget proposals. The Parliament goes into all the Budget proposals. The rates are sanctioned by the Parliament. The rates. therefore, become a legislative policy as well as a legislativeCourts have no jurisdiction under Article 226 to go into reasonableness of rates. These rates are decided as policy matter in fiscal planning. There is legislative prescription of rates. Rate s are a matter for legislative judgment and not for judicial determination.
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B.K.Pavitra And Ors. Vs. Union Of India | reservation was permissible merely because the banks were following reservation policy of the Government of India. The Madras High Court after considering the statistics found that there was no adequate representation of SCs and STs in higher scales. It directed that such representation be granted. Plea of the Bank that such reservation will affect efficiency in the administration was rejected. This Court held that in absence of any specific provision for reservation in promotion, the Court could not issue a direction for reservation. It was observed :32. We have already noticed above that in matters of promotion within Group A posts, which carry an ultimate salary of L 5700 per month, there was no provision for any reservation. On a conjoint reading of these two Office Memorandums dated 1-11-1990 and 13-8-1997, in the absence of any other provision or rule evidencing such a reservation in the matter of promotions, it cannot be said that there was reservation in promotion within Group A posts up to the ultimate salary of L 5700 per month. The High Court in the impugned judgment has gone by the lofty ideals enshrined in Articles 15 and 16 of the Constitution as well as the fact that in these Banks there is no adequate representation of SC/ST category of officers in Group IV and above. That may be so. It can only provide justification for making a provision of this nature. However, in the absence of such a provision, same cannot be read by overstretching the language of the Office Memorandum dated 13-8-1997. It is for the State to take stock of the ground realities and take a decision as to whether it is necessary to make provision for reservation in promotions to the aforesaid post as well. 27. In S. Panneer Selvam v. State of Tamil Nadu, (2015) 1 SCC 292 question before the Court was whether in absence of any policy decision by the State for giving consequential seniority to candidates promoted on the basis of reservation prior to a senior general category candidate, claim for consequential seniority could be accepted. Answering the question in the negative, it was held that in absence of provision for consequential seniority, `catch up rule will be applicable and the roster point promotees cannot claim such consequential seniority. The senior general candidates will regain their seniority on being promoted. Observations relevant in this regard are as follows :34. If we look at the above comparative table of the service particulars of the appellants and the respondents, it is seen that the contesting respondents U. Palaniappan joined the service almost seven years after the appellants, his seniority is automatically accelerated at an unprecedented rate and as on 1-4-2004 his seniority rank as ADE is 150 and seniority of V. Appadurai is 120. The appellants who are qualified and senior than the contesting respondents are placed much below in rank in comparison to the person belonging to the reserved class promotees who were promoted following the rule of reservation. It is to be noted that the private respondents in the present case have been promoted temporarily under Rule 39(a) and Rule 10(a)(i) of the General Rules with the condition that their inclusion in the promotional order shall not confer on them any right whatsoever in the service. Determination of seniority is a vital aspect in the service career of an employee and his future promotion is dependent on this. Therefore, determination of seniority must be based on some principles which are just and fair. In the absence of any policy decision taken or rules framed by the State of Tamil Nadu regarding Tamil Nadu Highways Engineering Service, accelerated promotion given to the respondents following rule of reservation in terms of Rule 12 will not give them consequential accelerated seniority. xxxx 36. In the absence of any provision for consequential seniority in the rules, the catch-up rule will be applicable and the roster-point reserved category promotees cannot count their seniority in the promoted category from the date of their promotion and the senior general candidates if later reach the promotional level, general candidates will regain their seniority. The Division Bench appears to have proceeded on an erroneous footing that Article 16(4-A) of the Constitution of India automatically gives the consequential seniority in addition to accelerated promotion to the roster-point promotees and the judgment of the Division Bench cannot be sustained. 28. It is clear from the above discussion that exercise for determining `inadequacy of representation, `backwardness and `overall efficiency, is a must for exercise of power under Article 16(4A). Mere fact that there is no proportionate representation in promotional posts for the population of SCs and STs is not by itself enough to grant consequential seniority to promotees who are otherwise junior and thereby denying seniority to those who are given promotion later on account of reservation policy. It is for the State to place material on record that there was compelling necessity for exercise of such power and decision of the State was based on material including the study that overall efficiency is not compromised. In the present case, no such exercise has been undertaken. The High Court erroneously observed that it was for the petitioners to plead and prove that the overall efficiency was adversely affected by giving consequential seniority to junior persons who got promotion on account of reservation. Plea that persons promoted at the same time were allowed to retain their seniority in the lower cadre is untenable and ignores the fact that a senior person may be promoted later and not at same time on account of roster point reservation. Depriving him of his seniority affects his further chances of promotion. Further plea that seniority was not a fundamental right is equally without any merit in the present context. In absence of exercise under Article 16(4A), it is the `catch up rule which is fully applies. It is not necessary to go into the question whether the concerned Corporation had adopted the rule of consequential seniority. | 1[ds]15. We proceed to deal with the contention that High Court judgment proceeds on incorrect understanding of the law laid down in M. Nagaraj (supra). While no doubt in M. Nagaraj (supra), 85th Amendment was upheld with the observation that enabling the State to do away with the `catch up rule, a judicially evolved concept to control the effect of reservations, was valid but the exercise of power to do away with the said rule and providing consequential seniority in favour of roster point promotees of reserved category was subject to the limitation of determining the three factors of `backwardness, `inadequacy of representation and `overall efficiency. The High Court brushed aside the said mandatory requirement by simply observing that Section 3 provided for an inbuilt mechanism as the extent of mechanism was limited to 15% and 3% respectively for the SCs and STs which dispensed with any requirement of determining inadequacy of representation or backwardness. High Court further dispensed with the requirement of determining overall efficiency by observing that there was no pleading that overall efficiency would be hampered by promoting persons belonging to SCs and STs. This reasoning in the judgment of the High Court, it is submitted, is contrary to the mandate of law as recognized in M. Nagaraj (supra) and the view similar to the impugned judgment has been repeatedly disapproved in decisions of this Court28. It is clear from the above discussion that exercise for determining `inadequacy of representation, `backwardness and `overall efficiency, is a must for exercise of power under Article 16(4A). Mere fact that there is no proportionate representation in promotional posts for the population of SCs and STs is not by itself enough to grant consequential seniority to promotees who are otherwise junior and thereby denying seniority to those who are given promotion later on account of reservation policy. It is for the State to place material on record that there was compelling necessity for exercise of such power and decision of the State was based on material including the study that overall efficiency is not compromised. In the present case, no such exercise has been undertaken. The High Court erroneously observed that it was for the petitioners to plead and prove that the overall efficiency was adversely affected by giving consequential seniority to junior persons who got promotion on account of reservation. Plea that persons promoted at the same time were allowed to retain their seniority in the lower cadre is untenable and ignores the fact that a senior person may be promoted later and not at same time on account of roster point reservation. Depriving him of his seniority affects his further chances of promotion. Further plea that seniority was not a fundamental right is equally without any merit in the present context. In absence of exercise under Article 16(4A), it is the `catch up rule which is fully applies. It is not necessary to go into the question whether the concerned Corporation had adopted the rule of consequential seniority16. We find considerable force in the submission. The issue is no longer res integra and it will be suffice to refer to the law clearly laid down by this Court in this regard17. In M. Nagaraj (supra), this Court considered constitutional validity of 77th, 81st, 82nd and 85th Amendments. In doing so, the Court was concerned with the question whether the amendment infringed the basic structure of the Constitution. It was held that equality is part of the basic structure but in the present context, right to equality is not violated by an enabling provision if exercise of power so justifies. In this regard, following observations are worthwhile to note :31. At the outset, it may be noted that equality, rule of law, judicial review and separation of powers are distinct concepts. They have to be treated separately, though they are intimately connected. There can be no rule of law if there is no equality before the law; and rule of law and equality before the law would be empty words if their violation was not a matter of judicial scrutiny or judicial review and judicial relief and all these features would lose their significance if judicial, executive and legislative functions were united in only one authority, whose dictates had the force of law. The rule of law and equality before the law are designed to secure among other things, justice both social and economic ...... ......32. In Minerva Mills [(1980) 3 SCC 625] Chandrachud, C.J., speaking for the majority, observed that Articles 14 and 19 do not confer any fanciful rights. They confer rights which are elementary for the proper and effective functioning of democracy. They are universally regarded by the Universal Declaration of Human Rights. If Articles 14 and 19 are put out of operation, Article 32 will be rendered nugatory33. From these observations, which are binding on us, the principle which emerges is that equality is the essence of democracy and, accordingly a basic feature of the Constitution.42. ..... ....There can be no justice without equality. Article 14 guarantees the fundamental right to equality before the law on all persons. Great social injustice resulted from treating sections of the Hindu community as untouchable and, therefore, Article 17 abolished untouchability and Article 25 permitted the State to make any law providing for throwing open all public Hindu religious temples to untouchables. Therefore, provisions of Part III also provide for political and social justice.. Considering the right of equality in the context of reservation/affirmative action it was observed :43. ... ... ... Therefore, the concept of equality of opportunity in public employment concerns an individual, whether that individual belongs to the general category or Backward Class. The conflicting claim of individual right under Article 16(1) and the preferential treatment given to a Backward Class has to be balanced. Both the claims have a particular object to be achieved. The question is of optimisation of these conflicting interests and claims.. Thereafter, concepts of `equity, `justice and `merit in public employment were referred to and it was held that application of these concepts in public employment depends upon quantifiable data in each case. It was observed:44. ... ... ...Backward Classes seek justice. General class in public employment seeks equity. The difficulty comes in when the third variable comes in, namely, efficiency in service. In the issue of reservation, we are being asked to find a stable equilibrium between justice to the backwards, equity for the forwards and efficiency for the entire system. Equity and justice in the above context are hard concepts. However, if you add efficiency to equity and justice, the problem arises in the context of the reservation. This problem has to be examined, therefore, on the facts of each case. Therefore, Article 16(4) has to be construed in the light of Article 335 of the Constitution. Inadequacy in representation and backwardness of the Scheduled Castes and Scheduled Tribes are circumstances which enable the State Government to act under Article 16(4) of the Constitution. However, as held by this Court the limitations on the discretion of the Government in the matter of reservation under Article 16(4) as well as Article 16(4-A) come in the form of Article 335 of the Constitution45. ... ... ...The basic presumption, however, remains that it is the State who is in the best position to define and measure merit in whatever ways it consider it to be relevant to public employment because ultimately it has to bear the costs arising from errors in defining and measuring merit. Similarly, the concept of extent of reservation is not an absolute concept and like merit it is context-specific46. ... ... ...Therefore, vesting of the power by an enabling provision may be constitutionally valid and yet exercise of the power by the State in a given case may be arbitrary, particularly, if the State fails to identify and measure backwardness and inadequacy keeping in mind the efficiency of service as required under Article 335.. The above discussion led this Court to hold that conferment of enabling power on State under Article 16(4A) did not by itself violate the basic feature of equality. If the affirmative action stipulated under Article 16(4A) could be balanced with the need for adequate representation for justice to the backwards while upholding equity for the forwards and efficiency for the entire system with the further observation that the content of a right is defined by the Courts and even while the amendment as such could be upheld, validity of an individual enactment was required to be gone into. If the State wished to exercise its discretion under Article 16(4A), it was to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance with Article 335. It was made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.. Therefore, exercise in the light of judgment in M. Nagaraj was a categorical imperative. The contention that no such exercise was necessary could not be accepted. Accordingly, this Court upheld the view that grant of consequential seniority in promotion to the persons belonging to SCs and STs who were granted promotion against roster points could not be sustained. Reference may be made to the following observations :85. As has been indicated hereinbefore, it has been vehemently argued by the learned Senior Counsel for the State and the learned Senior Counsel for the Corporation that once the principle of reservation was made applicable to the spectrum of promotion, no fresh exercise is necessary. It is also urged that the efficiency in service is not jeopardised. Reference has been made to the Social Justice Committee Report and the chart. We need not produce the same as the said exercise was done regard being had to the population and vacancies and not to the concepts that have been evolved in M. Nagaraj. It is one thing to think that there are statutory rules or executive instructions to grant promotion but it cannot be forgotten that they were all subject to the pronouncement by this Court in Virpal Singh Chauhan and Ajit Singh86. We are of the firm view that a fresh exercise in the light of the judgment of the Constitution Bench in M. Nagaraj is a categorical imperative. The stand that the constitutional amendments have facilitated the reservation in promotion with consequential seniority and have given the stamp of approval to the Act and the Rules cannot withstand close scrutiny inasmuch as the Constitution Bench has clearly opined that Articles 16(4-A) and 16(4-B) are enabling provisions and the State can make provisions for the same on certain basis or foundation. The conditions precedent have not been satisfied. No exercise has been undertaken. What has been argued with vehemence is that it is not necessary as the concept of reservation in promotion was already in vogue. We are unable to accept the said submission, for when the provisions of the Constitution are treated valid with certain conditions or riders, it becomes incumbent on the part of the State to appreciate and apply the test so that its amendments can be tested and withstand the scrutiny on parameters laid down therein87. In the ultimate analysis, we conclude and hold that Section 3(7) of the 1994 Act and Rule 8-A of the 2007 Rules are ultra vires as they run counter to the dictum in M. Nagaraj. Any promotion that has been given on the dictum of Indra Sawhney and without the aid or assistance of Section 3(7) and Rule 8-A shall remain undisturbed.28. It is clear from the above discussion that exercise for determining `inadequacy of representation, `backwardness and `overall efficiency, is a must for exercise of power under Article 16(4A). Mere fact that there is no proportionate representation in promotional posts for the population of SCs and STs is not by itself enough to grant consequential seniority to promotees who are otherwise junior and thereby denying seniority to those who are given promotion later on account of reservation policy. It is for the State to place material on record that there was compelling necessity for exercise of such power and decision of the State was based on material including the study that overall efficiency is not compromised. In the present case, no such exercise has been undertaken. The High Court erroneously observed that it was for the petitioners to plead and prove that the overall efficiency was adversely affected by giving consequential seniority to junior persons who got promotion on account of reservation. Plea that persons promoted at the same time were allowed to retain their seniority in the lower cadre is untenable and ignores the fact that a senior person may be promoted later and not at same time on account of roster point reservation. Depriving him of his seniority affects his further chances of promotion. Further plea that seniority was not a fundamental right is equally without any merit in the present context. In absence of exercise under Article 16(4A), it is the `catch up rule which is fully applies. It is not necessary to go into the question whether the concerned Corporation had adopted the rule of consequential | 1 | 9,094 | 2,472 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
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reservation was permissible merely because the banks were following reservation policy of the Government of India. The Madras High Court after considering the statistics found that there was no adequate representation of SCs and STs in higher scales. It directed that such representation be granted. Plea of the Bank that such reservation will affect efficiency in the administration was rejected. This Court held that in absence of any specific provision for reservation in promotion, the Court could not issue a direction for reservation. It was observed :32. We have already noticed above that in matters of promotion within Group A posts, which carry an ultimate salary of L 5700 per month, there was no provision for any reservation. On a conjoint reading of these two Office Memorandums dated 1-11-1990 and 13-8-1997, in the absence of any other provision or rule evidencing such a reservation in the matter of promotions, it cannot be said that there was reservation in promotion within Group A posts up to the ultimate salary of L 5700 per month. The High Court in the impugned judgment has gone by the lofty ideals enshrined in Articles 15 and 16 of the Constitution as well as the fact that in these Banks there is no adequate representation of SC/ST category of officers in Group IV and above. That may be so. It can only provide justification for making a provision of this nature. However, in the absence of such a provision, same cannot be read by overstretching the language of the Office Memorandum dated 13-8-1997. It is for the State to take stock of the ground realities and take a decision as to whether it is necessary to make provision for reservation in promotions to the aforesaid post as well. 27. In S. Panneer Selvam v. State of Tamil Nadu, (2015) 1 SCC 292 question before the Court was whether in absence of any policy decision by the State for giving consequential seniority to candidates promoted on the basis of reservation prior to a senior general category candidate, claim for consequential seniority could be accepted. Answering the question in the negative, it was held that in absence of provision for consequential seniority, `catch up rule will be applicable and the roster point promotees cannot claim such consequential seniority. The senior general candidates will regain their seniority on being promoted. Observations relevant in this regard are as follows :34. If we look at the above comparative table of the service particulars of the appellants and the respondents, it is seen that the contesting respondents U. Palaniappan joined the service almost seven years after the appellants, his seniority is automatically accelerated at an unprecedented rate and as on 1-4-2004 his seniority rank as ADE is 150 and seniority of V. Appadurai is 120. The appellants who are qualified and senior than the contesting respondents are placed much below in rank in comparison to the person belonging to the reserved class promotees who were promoted following the rule of reservation. It is to be noted that the private respondents in the present case have been promoted temporarily under Rule 39(a) and Rule 10(a)(i) of the General Rules with the condition that their inclusion in the promotional order shall not confer on them any right whatsoever in the service. Determination of seniority is a vital aspect in the service career of an employee and his future promotion is dependent on this. Therefore, determination of seniority must be based on some principles which are just and fair. In the absence of any policy decision taken or rules framed by the State of Tamil Nadu regarding Tamil Nadu Highways Engineering Service, accelerated promotion given to the respondents following rule of reservation in terms of Rule 12 will not give them consequential accelerated seniority. xxxx 36. In the absence of any provision for consequential seniority in the rules, the catch-up rule will be applicable and the roster-point reserved category promotees cannot count their seniority in the promoted category from the date of their promotion and the senior general candidates if later reach the promotional level, general candidates will regain their seniority. The Division Bench appears to have proceeded on an erroneous footing that Article 16(4-A) of the Constitution of India automatically gives the consequential seniority in addition to accelerated promotion to the roster-point promotees and the judgment of the Division Bench cannot be sustained. 28. It is clear from the above discussion that exercise for determining `inadequacy of representation, `backwardness and `overall efficiency, is a must for exercise of power under Article 16(4A). Mere fact that there is no proportionate representation in promotional posts for the population of SCs and STs is not by itself enough to grant consequential seniority to promotees who are otherwise junior and thereby denying seniority to those who are given promotion later on account of reservation policy. It is for the State to place material on record that there was compelling necessity for exercise of such power and decision of the State was based on material including the study that overall efficiency is not compromised. In the present case, no such exercise has been undertaken. The High Court erroneously observed that it was for the petitioners to plead and prove that the overall efficiency was adversely affected by giving consequential seniority to junior persons who got promotion on account of reservation. Plea that persons promoted at the same time were allowed to retain their seniority in the lower cadre is untenable and ignores the fact that a senior person may be promoted later and not at same time on account of roster point reservation. Depriving him of his seniority affects his further chances of promotion. Further plea that seniority was not a fundamental right is equally without any merit in the present context. In absence of exercise under Article 16(4A), it is the `catch up rule which is fully applies. It is not necessary to go into the question whether the concerned Corporation had adopted the rule of consequential seniority.
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it to be relevant to public employment because ultimately it has to bear the costs arising from errors in defining and measuring merit. Similarly, the concept of extent of reservation is not an absolute concept and like merit it is context-specific46. ... ... ...Therefore, vesting of the power by an enabling provision may be constitutionally valid and yet exercise of the power by the State in a given case may be arbitrary, particularly, if the State fails to identify and measure backwardness and inadequacy keeping in mind the efficiency of service as required under Article 335.. The above discussion led this Court to hold that conferment of enabling power on State under Article 16(4A) did not by itself violate the basic feature of equality. If the affirmative action stipulated under Article 16(4A) could be balanced with the need for adequate representation for justice to the backwards while upholding equity for the forwards and efficiency for the entire system with the further observation that the content of a right is defined by the Courts and even while the amendment as such could be upheld, validity of an individual enactment was required to be gone into. If the State wished to exercise its discretion under Article 16(4A), it was to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance with Article 335. It was made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.. Therefore, exercise in the light of judgment in M. Nagaraj was a categorical imperative. The contention that no such exercise was necessary could not be accepted. Accordingly, this Court upheld the view that grant of consequential seniority in promotion to the persons belonging to SCs and STs who were granted promotion against roster points could not be sustained. Reference may be made to the following observations :85. As has been indicated hereinbefore, it has been vehemently argued by the learned Senior Counsel for the State and the learned Senior Counsel for the Corporation that once the principle of reservation was made applicable to the spectrum of promotion, no fresh exercise is necessary. It is also urged that the efficiency in service is not jeopardised. Reference has been made to the Social Justice Committee Report and the chart. We need not produce the same as the said exercise was done regard being had to the population and vacancies and not to the concepts that have been evolved in M. Nagaraj. It is one thing to think that there are statutory rules or executive instructions to grant promotion but it cannot be forgotten that they were all subject to the pronouncement by this Court in Virpal Singh Chauhan and Ajit Singh86. We are of the firm view that a fresh exercise in the light of the judgment of the Constitution Bench in M. Nagaraj is a categorical imperative. The stand that the constitutional amendments have facilitated the reservation in promotion with consequential seniority and have given the stamp of approval to the Act and the Rules cannot withstand close scrutiny inasmuch as the Constitution Bench has clearly opined that Articles 16(4-A) and 16(4-B) are enabling provisions and the State can make provisions for the same on certain basis or foundation. The conditions precedent have not been satisfied. No exercise has been undertaken. What has been argued with vehemence is that it is not necessary as the concept of reservation in promotion was already in vogue. We are unable to accept the said submission, for when the provisions of the Constitution are treated valid with certain conditions or riders, it becomes incumbent on the part of the State to appreciate and apply the test so that its amendments can be tested and withstand the scrutiny on parameters laid down therein87. In the ultimate analysis, we conclude and hold that Section 3(7) of the 1994 Act and Rule 8-A of the 2007 Rules are ultra vires as they run counter to the dictum in M. Nagaraj. Any promotion that has been given on the dictum of Indra Sawhney and without the aid or assistance of Section 3(7) and Rule 8-A shall remain undisturbed.28. It is clear from the above discussion that exercise for determining `inadequacy of representation, `backwardness and `overall efficiency, is a must for exercise of power under Article 16(4A). Mere fact that there is no proportionate representation in promotional posts for the population of SCs and STs is not by itself enough to grant consequential seniority to promotees who are otherwise junior and thereby denying seniority to those who are given promotion later on account of reservation policy. It is for the State to place material on record that there was compelling necessity for exercise of such power and decision of the State was based on material including the study that overall efficiency is not compromised. In the present case, no such exercise has been undertaken. The High Court erroneously observed that it was for the petitioners to plead and prove that the overall efficiency was adversely affected by giving consequential seniority to junior persons who got promotion on account of reservation. Plea that persons promoted at the same time were allowed to retain their seniority in the lower cadre is untenable and ignores the fact that a senior person may be promoted later and not at same time on account of roster point reservation. Depriving him of his seniority affects his further chances of promotion. Further plea that seniority was not a fundamental right is equally without any merit in the present context. In absence of exercise under Article 16(4A), it is the `catch up rule which is fully applies. It is not necessary to go into the question whether the concerned Corporation had adopted the rule of consequential
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Collector Of Central Excise, Bombay-Ii Vs. Kiran Spinning Mills, Kolshet Road, Thane | SABYASACHI MUKHARJI, J. 1. This is a statutory appeal under Section 35-L(b) of the Central Excises and Salt Act, 1944, hereinafter called the Act , against the order dated February 22, 1944 passed by the Customs, Excise and Gold (Control) Appellate Tribunal, hereinafter called the CEGAT . 2. In this appeal we are concerned with the question whether there was exigibility to taxation on the item concerned under the Act. It appears that during the course of investigations made against Swastik Investment Company, Bombay, the Central Excise Officers found that some of the consignments of the material described in the documents as crimpled uncut waste were cleared from M/s Swadeshi Polytex Ltd., Ghaziabad, during the period from January 1974 to December 1977 and were purchased by the respondents herein and utilised in the manufacture of polyester staple fibre. The Collector held that the so-called crimpled uncut waste purchased by the respondents was, in fact, polyester fibre tow and the staple fibre which were commercially two distinct products and the respondents had carried on manufacture of polyester staple fibre from tow and, as such, exigible to duty. The respondents filed an appeal before the Central Board of Excise and Customs against the Collectors order. The appeal was thereafter transferred to CEGAT in pursuance of Section 35-P of the Act. 3. It appears that there is distinction between a tow and staple fibre. The Ministry of Finance (Department of Revenues) circular indicates as follows: "Tow is a collection of many parallel continuous filaments without twist which are grouped together in rope like form Tow is used for the same purpose for which staple fibre is used. Tow is mainly converted into staple fibre and only a negligible quantity is converted directly into yarn. It has been therefore decided that duty should be levied on Tow at the rate applicable to staple fibre [MF (DR & I) F. No. 50/7/71-CX 2 dated December 22, 1972]" 4. In other words, tow is fibre in running length and staple fibre is obtained by cutting it into required short length. On an examination of the material and the contention, the Tribunal came to the conclusion that the material which the respondents had purchased was already man-made fibre but in running length. All that the respondents did in relation to it, was to cut it into staple length after some manual sorting and straightening. The question, therefore, is whether cutting the long fibre into short fibre resulted into a new and different article of commerce. Now it is well settled how to determine whether there was manufacture or not. This Court held in the case of Union of India v. Delhi Cloth & General Mills (1963 Supp 1 SCR 586 : AIR 1963 SC 791 ) that manufacture means to bring into existence a new substance and does not mean merely to produce some change in a substance. It is true that etymological word manufacture properly construed would doubtless cover the transformation but the question is whether that transformation brings about fundamental change, a new substance is brought into existence or a new different article having distinctive name, character or use results from a particular process or a particular activity. The taxable event under the excise law is manufacture . See in this connection Empire Industries Ltd. v. Union of India (1985 Supp 1 SCR 292 : (1985) 3 SCC 314 : 1985 SCC (Tax) 416) and M/s Ujagar Prints v. Union of India (1986 Supp SCC 652 : 1987 SCC (Tax) 107) . In the instant case it is not disputed that what the respondent did, was to cut the running length fibre (tow) into short length fibre (staple fibre). It indubitably brought a change in the substance but did not bring into existence a new substance. The character and use of the substance (man-made fibre) remained the same. It is true that by the change in the length of the fibre, it acquired a new name. But since in this case the tariff entry recognised the single description man-made fibre with no further sub-division based on length of the fibre and even without any distinct enumeration of the various forms of fibre by cutting long fibres into short ones, the respondents did not bring into existence any new product so as to attract any levy under the same tariff entry. Even by cutting, the respondents obtained man-made fibre. Such cutting, therefore, involved no manufacture and, hence, no duty liability can be imposed upon them. 5. In that view of the matter and on the facts found by the Tribunal, we are of the opinion that the Tribunal was right in the view it took and that decision needs no interference. 6. | 0[ds]This Court held in the case of Union of India v. Delhi Cloth & General Mills (1963 Supp 1 SCR 586 : AIR 1963 SC 791 ) that manufacture means to bring into existence a new substance and does not mean merely to produce some change in a substance. It is true that etymological word manufacture properly construed would doubtless cover the transformation but the question is whether that transformation brings about fundamental change, a new substance is brought into existence or a new different article having distinctive name, character or use results from a particular process or a particular activity. The taxable event under the excise law is manufacture . See in this connection Empire Industries Ltd. v. Union of India (1985 Supp 1 SCR 292 : (1985) 3 SCC 314 : 1985 SCC (Tax) 416) and M/s Ujagar Prints v. Union of India (1986 Supp SCC 652 : 1987 SCC (Tax) 107) . In the instant case it is not disputed that what the respondent did, was to cut the running length fibre (tow) into short length fibre (staple fibre). It indubitably brought a change in the substance but did not bring into existence a new substance. The character and use of the substance (man-made fibre) remained the same. It is true that by the change in the length of the fibre, it acquired a new name. But since in this case the tariff entry recognised the single description man-made fibre with no further sub-division based on length of the fibre and even without any distinct enumeration of the various forms of fibre by cutting long fibres into short ones, the respondents did not bring into existence any new product so as to attract any levy under the same tariff entry. Even by cutting, the respondents obtained man-made fibre. Such cutting, therefore, involved no manufacture and, hence, no duty liability can be imposed upon them5. In that view of the matter and on the facts found by the Tribunal, we are of the opinion that the Tribunal was right in the view it took and that decision needs no interference. | 0 | 879 | 394 | ### 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:
SABYASACHI MUKHARJI, J. 1. This is a statutory appeal under Section 35-L(b) of the Central Excises and Salt Act, 1944, hereinafter called the Act , against the order dated February 22, 1944 passed by the Customs, Excise and Gold (Control) Appellate Tribunal, hereinafter called the CEGAT . 2. In this appeal we are concerned with the question whether there was exigibility to taxation on the item concerned under the Act. It appears that during the course of investigations made against Swastik Investment Company, Bombay, the Central Excise Officers found that some of the consignments of the material described in the documents as crimpled uncut waste were cleared from M/s Swadeshi Polytex Ltd., Ghaziabad, during the period from January 1974 to December 1977 and were purchased by the respondents herein and utilised in the manufacture of polyester staple fibre. The Collector held that the so-called crimpled uncut waste purchased by the respondents was, in fact, polyester fibre tow and the staple fibre which were commercially two distinct products and the respondents had carried on manufacture of polyester staple fibre from tow and, as such, exigible to duty. The respondents filed an appeal before the Central Board of Excise and Customs against the Collectors order. The appeal was thereafter transferred to CEGAT in pursuance of Section 35-P of the Act. 3. It appears that there is distinction between a tow and staple fibre. The Ministry of Finance (Department of Revenues) circular indicates as follows: "Tow is a collection of many parallel continuous filaments without twist which are grouped together in rope like form Tow is used for the same purpose for which staple fibre is used. Tow is mainly converted into staple fibre and only a negligible quantity is converted directly into yarn. It has been therefore decided that duty should be levied on Tow at the rate applicable to staple fibre [MF (DR & I) F. No. 50/7/71-CX 2 dated December 22, 1972]" 4. In other words, tow is fibre in running length and staple fibre is obtained by cutting it into required short length. On an examination of the material and the contention, the Tribunal came to the conclusion that the material which the respondents had purchased was already man-made fibre but in running length. All that the respondents did in relation to it, was to cut it into staple length after some manual sorting and straightening. The question, therefore, is whether cutting the long fibre into short fibre resulted into a new and different article of commerce. Now it is well settled how to determine whether there was manufacture or not. This Court held in the case of Union of India v. Delhi Cloth & General Mills (1963 Supp 1 SCR 586 : AIR 1963 SC 791 ) that manufacture means to bring into existence a new substance and does not mean merely to produce some change in a substance. It is true that etymological word manufacture properly construed would doubtless cover the transformation but the question is whether that transformation brings about fundamental change, a new substance is brought into existence or a new different article having distinctive name, character or use results from a particular process or a particular activity. The taxable event under the excise law is manufacture . See in this connection Empire Industries Ltd. v. Union of India (1985 Supp 1 SCR 292 : (1985) 3 SCC 314 : 1985 SCC (Tax) 416) and M/s Ujagar Prints v. Union of India (1986 Supp SCC 652 : 1987 SCC (Tax) 107) . In the instant case it is not disputed that what the respondent did, was to cut the running length fibre (tow) into short length fibre (staple fibre). It indubitably brought a change in the substance but did not bring into existence a new substance. The character and use of the substance (man-made fibre) remained the same. It is true that by the change in the length of the fibre, it acquired a new name. But since in this case the tariff entry recognised the single description man-made fibre with no further sub-division based on length of the fibre and even without any distinct enumeration of the various forms of fibre by cutting long fibres into short ones, the respondents did not bring into existence any new product so as to attract any levy under the same tariff entry. Even by cutting, the respondents obtained man-made fibre. Such cutting, therefore, involved no manufacture and, hence, no duty liability can be imposed upon them. 5. In that view of the matter and on the facts found by the Tribunal, we are of the opinion that the Tribunal was right in the view it took and that decision needs no interference. 6.
### Response:
0
### Explanation:
This Court held in the case of Union of India v. Delhi Cloth & General Mills (1963 Supp 1 SCR 586 : AIR 1963 SC 791 ) that manufacture means to bring into existence a new substance and does not mean merely to produce some change in a substance. It is true that etymological word manufacture properly construed would doubtless cover the transformation but the question is whether that transformation brings about fundamental change, a new substance is brought into existence or a new different article having distinctive name, character or use results from a particular process or a particular activity. The taxable event under the excise law is manufacture . See in this connection Empire Industries Ltd. v. Union of India (1985 Supp 1 SCR 292 : (1985) 3 SCC 314 : 1985 SCC (Tax) 416) and M/s Ujagar Prints v. Union of India (1986 Supp SCC 652 : 1987 SCC (Tax) 107) . In the instant case it is not disputed that what the respondent did, was to cut the running length fibre (tow) into short length fibre (staple fibre). It indubitably brought a change in the substance but did not bring into existence a new substance. The character and use of the substance (man-made fibre) remained the same. It is true that by the change in the length of the fibre, it acquired a new name. But since in this case the tariff entry recognised the single description man-made fibre with no further sub-division based on length of the fibre and even without any distinct enumeration of the various forms of fibre by cutting long fibres into short ones, the respondents did not bring into existence any new product so as to attract any levy under the same tariff entry. Even by cutting, the respondents obtained man-made fibre. Such cutting, therefore, involved no manufacture and, hence, no duty liability can be imposed upon them5. In that view of the matter and on the facts found by the Tribunal, we are of the opinion that the Tribunal was right in the view it took and that decision needs no interference.
|
M.Naina Mohammed Vs. K. A. Natarajan & Others | V.R. Krishna Iyer, J.1. A spiral of reversals is the fate of this litigative battle between the appellant and the first respondent over a permit to ply a bus on the route between Madurai and Pararamakkudi, in Tamil Nadu. While its admission into this Court was by special leave, the first round of the contest was fought before the R. T.A. (Regional Transport Authority) which on an evaluation of the relative merits and demerits of the rivals, granted the permit to the present appellant, but this victory was short-lived because, at the second stage of the legal bout, the S. T.A.T. (State Transport Appellate Tribunal) held that the respondent before us had better claims. The worsted appellant invoked the writ jurisdiction of the High Court under Article 226 and the learned Single Judge, who heard the petition rejudged the relevance and weight of the points, pro and con, and as a result of this adjudicator exercise on facts, demolished the order of the S.T.A.T. The learned Judge disagreed with the conclusion of the S.T.A.T. but, instead of sending the case back for a fresh look at the merits of the matter, set aside the permit granted to the respondent and affirmed the award in favour of the appellant. Thereupon, the respondent moved a Division Bench of that Court which felt that a full-scale re-appraisal of the points for and against each claimant was in excess of the jurisdiction of the Single Judge under Article 226 although it noticed that certain factors not relevant to the adjudication had been taken into consideration by the S. T.A.T, Consequently. the order of the learned Judge was set aside, the result being that the respondents permit was restored. The appellant urged that the decision of the Division Bench of the High Court was utterly wrong and somewhat casual, while that of the learned Single Judge was careful, elaborate and correct. Of course, this view of the matter was hotly controverted by counsel for the 1st respondent but, after having heard both Shri K. S. Ramamurthy for the appellant, and Shri M.K. Ramamurthy for the respondent, we are satisfied that the reluctant course of remitting the whole case to the S.T.A.T. for a de novo disposal is called for as a matter of law and in the interests of justice.2. The boundaries of the High Courts jurisdiction under Article 226 are clearly and strongly built and cannot be breached without risking jurisprudential confusion (Sri Rama Vilas Service (P.) Ltd. v. C. Chandrasekharan. (1964) 5 SCR 869 = (AIR 1965 SC 107 )). The power is supervisory in nature, although the Judges at both the tiers, in the instant case, have unwittingly slipped into the subtle, but fatal, error of exercising a kind of appellate review.3. Shri M. K. Ramamurthy, for the respondent, was right in pointing out that the learned Single Judge went into the factum and weight of the claims which could be put in the scales in choosing the better of the two applicants for the permit. However, the Court rightly pointed out that some relevant factors had been ignored by the S. T. A. T. (for example, that the first respondents history sheet was not clean) and included in the judicial verdict factors which were extraneous, such as that the bus of the petitioner did not, in fact. ply from 2-9-1965 to 4-12-1965. This being attributable to non-payment of surcharge rather than operational inefficiency. A reading of the learned Single Judges judgment leaves us in no doubt that he had undertaken an evaluation of the merits on his own. This, undoubtedly, was beyond the jurisdiction of the High Court Nor is it possible to support the direction that if there were errors of law vitiating that S.T. A. Ts. finding, the case need not go back for fresh consideration but could be finally decided by the High Court itself4. In Writ Appeal, the learned Chief Justice, speaking for the Division Bench of the High Court, disposed of the case in a short paragraph which hardly did justice to the order appealed against. May be that order was wrong and unsustainable, but while reversing it valid reasons had to be adduced. All that we find in the appellate judgment is a partial admission that extraneous considerations were inputs of the order of the S.T.A.T. and a brief disposal of the whole matter in a single sentence as it were - "Even so there is nothing in the order of the Tribunal to support it," While the Division Bench was perhaps justified in observing that while sitting on the writ side, judicial review should have been more restricted than while sitting on the appellate side, its own judgment was vulnerable because of the plain finding that what was not pertinent was taken into consideration by the S.T.A.T. For instance, the learned Chief Justice observed : It is no doubt true that the non-performance of service after the grant was made, cannot go into the computation and the reference relating to night-halt might well have been avoided in its discussion. The non-performance of service", is slightly obscure, but we read it in the context as meaning the failure to ply the bus on the route in question subsequent to the grant of the permit. We express no opinion on the soundness of the observation but it is clear that the Division Bench itself has plainly accepted the position that what was not, according to it relevant had gone into the reckoning when the S.T.A.T. awarded the permit to the appellant. In this view, this judgment cannot also be sustained. | 1[ds]Of course, this view of the matter was hotly controverted by counsel for the 1st respondent but, after having heard both Shri K. S. Ramamurthy for the appellant, and Shri M.K. Ramamurthy for the respondent, we are satisfied that the reluctant course of remitting the whole case to the S.T.A.T. for a de novo disposal is called for as a matter of law and in the interests of justice.2. The boundaries of the High Courts jurisdiction under Article 226 are clearly and strongly built and cannot be breached without risking jurisprudential confusion (Sri Rama Vilas Service (P.) Ltd. v. C. Chandrasekharan. (1964) 5 SCR 869 = (AIR 1965 SC 107 )). The power is supervisory in nature, although the Judges at both the tiers, in the instant case, have unwittingly slipped into the subtle, but fatal, error of exercising a kind of appellatethe Court rightly pointed out that some relevant factors had been ignored by the S. T. A. T. (for example, that the first respondents history sheet was not clean) and included in the judicial verdict factors which were extraneous, such as that the bus of the petitioner did not, in fact. ply from. This being attributable toof surcharge rather than operational inefficiency. A reading of the learned Single Judges judgment leaves us in no doubt that he had undertaken an evaluation of the merits on his own. This, undoubtedly, was beyond the jurisdiction of the High Court Nor is it possible to support the direction that if there were errors of law vitiating that S.T. A. Ts. finding, the case need not go back for fresh consideration but could be finally decided by the High CourtIn Writ Appeal, the learned Chief Justice, speaking for the Division Bench of the High Court, disposed of the case in a short paragraph which hardly did justice to the order appealed against. May be that order was wrong and unsustainable, but while reversing it valid reasons had to be adduced. All that we find in the appellate judgment is a partial admission that extraneous considerations were inputs of the order of the S.T.A.T. and a brief disposal of the whole matter in a single sentence as it were"Even so there is nothing in the order of the Tribunal to support it," While the Division Bench was perhaps justified in observing that while sitting on the writ side, judicial review should have been more restricted than while sitting on the appellate side, its own judgment was vulnerable because of the plain finding that what was not pertinent was taken into consideration by the S.T.A.T. For instance, the learned Chief Justice observed : It is no doubt true that theof service after the grant was made, cannot go into the computation and the reference relating tomight well have been avoided in its discussion. Theof service", is slightly obscure, but we read it in the context as meaning the failure to ply the bus on the route in question subsequent to the grant of the permit. We express no opinion on the soundness of the observation but it is clear that the Division Bench itself has plainly accepted the position that what was not, according to it relevant had gone into the reckoning when the S.T.A.T. awarded the permit to the appellant. In this view, this judgment cannot also be sustained. | 1 | 1,037 | 624 | ### 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:
V.R. Krishna Iyer, J.1. A spiral of reversals is the fate of this litigative battle between the appellant and the first respondent over a permit to ply a bus on the route between Madurai and Pararamakkudi, in Tamil Nadu. While its admission into this Court was by special leave, the first round of the contest was fought before the R. T.A. (Regional Transport Authority) which on an evaluation of the relative merits and demerits of the rivals, granted the permit to the present appellant, but this victory was short-lived because, at the second stage of the legal bout, the S. T.A.T. (State Transport Appellate Tribunal) held that the respondent before us had better claims. The worsted appellant invoked the writ jurisdiction of the High Court under Article 226 and the learned Single Judge, who heard the petition rejudged the relevance and weight of the points, pro and con, and as a result of this adjudicator exercise on facts, demolished the order of the S.T.A.T. The learned Judge disagreed with the conclusion of the S.T.A.T. but, instead of sending the case back for a fresh look at the merits of the matter, set aside the permit granted to the respondent and affirmed the award in favour of the appellant. Thereupon, the respondent moved a Division Bench of that Court which felt that a full-scale re-appraisal of the points for and against each claimant was in excess of the jurisdiction of the Single Judge under Article 226 although it noticed that certain factors not relevant to the adjudication had been taken into consideration by the S. T.A.T, Consequently. the order of the learned Judge was set aside, the result being that the respondents permit was restored. The appellant urged that the decision of the Division Bench of the High Court was utterly wrong and somewhat casual, while that of the learned Single Judge was careful, elaborate and correct. Of course, this view of the matter was hotly controverted by counsel for the 1st respondent but, after having heard both Shri K. S. Ramamurthy for the appellant, and Shri M.K. Ramamurthy for the respondent, we are satisfied that the reluctant course of remitting the whole case to the S.T.A.T. for a de novo disposal is called for as a matter of law and in the interests of justice.2. The boundaries of the High Courts jurisdiction under Article 226 are clearly and strongly built and cannot be breached without risking jurisprudential confusion (Sri Rama Vilas Service (P.) Ltd. v. C. Chandrasekharan. (1964) 5 SCR 869 = (AIR 1965 SC 107 )). The power is supervisory in nature, although the Judges at both the tiers, in the instant case, have unwittingly slipped into the subtle, but fatal, error of exercising a kind of appellate review.3. Shri M. K. Ramamurthy, for the respondent, was right in pointing out that the learned Single Judge went into the factum and weight of the claims which could be put in the scales in choosing the better of the two applicants for the permit. However, the Court rightly pointed out that some relevant factors had been ignored by the S. T. A. T. (for example, that the first respondents history sheet was not clean) and included in the judicial verdict factors which were extraneous, such as that the bus of the petitioner did not, in fact. ply from 2-9-1965 to 4-12-1965. This being attributable to non-payment of surcharge rather than operational inefficiency. A reading of the learned Single Judges judgment leaves us in no doubt that he had undertaken an evaluation of the merits on his own. This, undoubtedly, was beyond the jurisdiction of the High Court Nor is it possible to support the direction that if there were errors of law vitiating that S.T. A. Ts. finding, the case need not go back for fresh consideration but could be finally decided by the High Court itself4. In Writ Appeal, the learned Chief Justice, speaking for the Division Bench of the High Court, disposed of the case in a short paragraph which hardly did justice to the order appealed against. May be that order was wrong and unsustainable, but while reversing it valid reasons had to be adduced. All that we find in the appellate judgment is a partial admission that extraneous considerations were inputs of the order of the S.T.A.T. and a brief disposal of the whole matter in a single sentence as it were - "Even so there is nothing in the order of the Tribunal to support it," While the Division Bench was perhaps justified in observing that while sitting on the writ side, judicial review should have been more restricted than while sitting on the appellate side, its own judgment was vulnerable because of the plain finding that what was not pertinent was taken into consideration by the S.T.A.T. For instance, the learned Chief Justice observed : It is no doubt true that the non-performance of service after the grant was made, cannot go into the computation and the reference relating to night-halt might well have been avoided in its discussion. The non-performance of service", is slightly obscure, but we read it in the context as meaning the failure to ply the bus on the route in question subsequent to the grant of the permit. We express no opinion on the soundness of the observation but it is clear that the Division Bench itself has plainly accepted the position that what was not, according to it relevant had gone into the reckoning when the S.T.A.T. awarded the permit to the appellant. In this view, this judgment cannot also be sustained.
### Response:
1
### Explanation:
Of course, this view of the matter was hotly controverted by counsel for the 1st respondent but, after having heard both Shri K. S. Ramamurthy for the appellant, and Shri M.K. Ramamurthy for the respondent, we are satisfied that the reluctant course of remitting the whole case to the S.T.A.T. for a de novo disposal is called for as a matter of law and in the interests of justice.2. The boundaries of the High Courts jurisdiction under Article 226 are clearly and strongly built and cannot be breached without risking jurisprudential confusion (Sri Rama Vilas Service (P.) Ltd. v. C. Chandrasekharan. (1964) 5 SCR 869 = (AIR 1965 SC 107 )). The power is supervisory in nature, although the Judges at both the tiers, in the instant case, have unwittingly slipped into the subtle, but fatal, error of exercising a kind of appellatethe Court rightly pointed out that some relevant factors had been ignored by the S. T. A. T. (for example, that the first respondents history sheet was not clean) and included in the judicial verdict factors which were extraneous, such as that the bus of the petitioner did not, in fact. ply from. This being attributable toof surcharge rather than operational inefficiency. A reading of the learned Single Judges judgment leaves us in no doubt that he had undertaken an evaluation of the merits on his own. This, undoubtedly, was beyond the jurisdiction of the High Court Nor is it possible to support the direction that if there were errors of law vitiating that S.T. A. Ts. finding, the case need not go back for fresh consideration but could be finally decided by the High CourtIn Writ Appeal, the learned Chief Justice, speaking for the Division Bench of the High Court, disposed of the case in a short paragraph which hardly did justice to the order appealed against. May be that order was wrong and unsustainable, but while reversing it valid reasons had to be adduced. All that we find in the appellate judgment is a partial admission that extraneous considerations were inputs of the order of the S.T.A.T. and a brief disposal of the whole matter in a single sentence as it were"Even so there is nothing in the order of the Tribunal to support it," While the Division Bench was perhaps justified in observing that while sitting on the writ side, judicial review should have been more restricted than while sitting on the appellate side, its own judgment was vulnerable because of the plain finding that what was not pertinent was taken into consideration by the S.T.A.T. For instance, the learned Chief Justice observed : It is no doubt true that theof service after the grant was made, cannot go into the computation and the reference relating tomight well have been avoided in its discussion. Theof service", is slightly obscure, but we read it in the context as meaning the failure to ply the bus on the route in question subsequent to the grant of the permit. We express no opinion on the soundness of the observation but it is clear that the Division Bench itself has plainly accepted the position that what was not, according to it relevant had gone into the reckoning when the S.T.A.T. awarded the permit to the appellant. In this view, this judgment cannot also be sustained.
|
The Commissioner of Income Tax-8 Vs. M/S. Srishti Securities Private Limited | reference to the provisions of Section 45(2) of the Income Tax Act.6. Revenue is in appeal on the following questions:"(a) Whether in view of facts and circumstances of the case the Honble ITAT is justified in allowing the interest on the borrowed fund u/s. section 36(1)(iii) of the Income Tax Act, 1961, when the share of the group company which was acquired was not shown as stock in trade but as investment(b) Whether in view of facts and circumstances of the case the Honble ITAT is justified in allowing the interest on the borrowed fund u/s. section 36(1)(iii) of the Income Tax Act, 1961, when the money is not used for business purpose as held by the A.O. and confirmed by the C.I.T. said finding of fact was not justified by the I.T.A.T.(c) Whether in view of facts and circumstances of the case the Honble ITAT is justified in allowing the interest on the borrowed fund u/s. section 36(1)(iii) of the Income Tax Act, 1961, on the basis of the judgment of Calcutta High Court in case of Rajeeva Lochan Kanoria, without appreciating the factual position in the said case and the present case, the assesseee business in case of Rajeeva Lochan Kanoria was in the business of acquiring share for managing, controlling and rehabilitating different company where as in the present case it was not the business of the assessee as held by the authority below(d) Whether in the facts and circumstances of the case and in law, the Tribunal is right in restoring the issue of valuation of closing stock of the shares held by the respondent in LKP Merchant Financing Ltd. when the said shares were held as an investment and not as stock in trade"7. We may firstly consider the first three questions as to whether the interest of borrowed capital which was utilised in the business of purchase of shares both by way of investment and stock in trade is allowable deduction.In so far as first three questions are concerned, in our opinion a Coordinate Bench of this Court in C.I.T. Vs. Lokhandwala (supra) had addressed itself to this issue. Reliance was placed on India w Cements Ld. Vs. CIT (1966) 60 ITR 52 (SC) which was under Section 10(2)(3) of the Income Tax Act, 1922 which corresponds to section 36(1)(3) of the present Act. This court answered the issue in the following manner:"That, while adjudicating the claim for deduction under section 36(1)(iii) of the Act, the nature of the expense -whether the expense was on capital account or revenue account - was irrelevant as the section itself says that interest paid by the assessee on the capital borrowed by the assessee was an item of deduction. That the utilization of the capital was irrelevant for the purpose of adjudicating the claim for deduction under section 36(1)(iii) of the Act. (see the judgment of the Bombay High Court in the case of Calico Dying and Printing Works Vs. CIT (1958) 34 ITR 265 ). In that judgment, it has been laid down that where an assessee claims deduction of interest paid on capital borrowed, all that the assesee had to show was that the capital which was borrowed was used for business purpose in the relevant year of account and it did not matter whether the capital was borrowed in order to acquire a revenue asset or a capital asset. ..."It may be noted that in India Cements Ltd. (supra) the Apex Court was specifically pleased to observe that the object of the loan is an irrelevant consideration. In the State of Madras Vs. G.J. Coelho, 53 ITR 186 the Supreme Court was dealing with the deduction claimed under Section 5(e) of the Madras Plantations Agricultural Income Tax Act, 1955. While considering the issue the court was pleased to observe that in principle there is no distinction between interest paid on capital borrowed for the acquisition of a plantation and interest paid on capital borrowed for the purpose of an existing plantation. Both are for the purpose of the plantation. The court further observed that the payment of interest on the amount borrowed for the purpose of the plantations when the whole transaction of purchase and the working of the plantations was viewed as an integrated whole was so closely related to the plantations that the expenditure could be said to be laid out or expended wholly and exclusively for the purpose of the plantations.8. We may also gainfully refer to the judgment of the Calcutta High Court in Commissioner of Income Tax Vs. Rajeeva Lochan Kanoria, 208 ITR 616 . The learned Court was considering section 36(1)(iii) and was pleased to observe as under:"The only enquiry that is to be made is whether the payment of interest was in respect of capital borrowed for the purpose of the assessees business or profession. There is no dispute that the capital was borrowed in the instant case and interest was paid on the borrowed capital. It is to be established that the amount was borrowed for the purpose of business or profession. The amount borrowed may be utilized for the purpose of acquisition of stock in trade or for the purpose of acquisition of capital assets. But so long as the money is utilised for business purposes the interest will have to be allowed as deduction. It is well settled that business expenditure is not confirmed to expenses incurred on revenue account. Capital expenditure may not be allowed as a deduction under section 37 because the section specifically bars any deduction of expenditure of capital nature. But section 36 is differently worded. There is no bar in section 36(1)(iii) to allowance of interest paid in respect of capital borrowed which has been utilised for purchase of a capital asset. The position of law in this regard was explained by the Supreme Court in the cases of India Cements Ltd. Vs. CIT (1966) 60 ITR 52 and State of Madras Vs. G.J. Coelhi (1964) 53 ITR 186." | 1[ds]In so far as first three questions are concerned, in our opinion a Coordinate Bench of this Court in C.I.T. Vs. Lokhandwala (supra) had addressed itself to this issue. Reliance was placed on India w Cements Ld. Vs. CIT (1966) 60 ITR 52 (SC) which was under Section 10(2)(3) of the Income Tax Act, 1922 which corresponds to section 36(1)(3) of the present Act. This court answered the issue in the following manner:"That, while adjudicating the claim for deduction under section 36(1)(iii) of the Act, the nature of the expensewhether the expense was on capital account or revenue accountwas irrelevant as the section itself says that interest paid by the assessee on the capital borrowed by the assessee was an item of deduction. That the utilization of the capital was irrelevant for the purpose of adjudicating the claim for deduction under section 36(1)(iii) of the Act. (see the judgment of the Bombay High Court in the case of Calico Dying and Printing Works Vs. CIT (1958) 34 ITR 265 ). In that judgment, it has been laid down that where an assessee claims deduction of interest paid on capital borrowed, all that the assesee had to show was that the capital which was borrowed was used for business purpose in the relevant year of account and it did not matter whether the capital was borrowed in order to acquire a revenue asset or a capital asset. ..."It may be noted that in India Cements Ltd. (supra) the Apex Court was specifically pleased to observe that the object of the loan is an irrelevant consideration. In the State of Madras Vs. G.J. Coelho, 53 ITR 186 the Supreme Court was dealing with the deduction claimed under Section 5(e) of the Madras Plantations Agricultural Income Tax Act, 1955. While considering the issue the court was pleased to observe that in principle there is no distinction between interest paid on capital borrowed for the acquisition of a plantation and interest paid on capital borrowed for the purpose of an existing plantation. Both are for the purpose of the plantation. The court further observed that the payment of interest on the amount borrowed for the purpose of the plantations when the whole transaction of purchase and the working of the plantations was viewed as an integrated whole was so closely related to the plantations that the expenditure could be said to be laid out or expended wholly and exclusively for the purpose of the plantations.8. We may also gainfully refer to the judgment of the Calcutta High Court in Commissioner of Income Tax Vs. Rajeeva Lochan Kanoria, 208 ITR 616 . The learned Court was considering section 36(1)(iii) and was pleased to observe as under:"The only enquiry that is to be made is whether the payment of interest was in respect of capital borrowed for the purpose of the assessees business or profession. There is no dispute that the capital was borrowed in the instant case and interest was paid on the borrowed capital. It is to be established that the amount was borrowed for the purpose of business or profession. The amount borrowed may be utilized for the purpose of acquisition of stock in trade or for the purpose of acquisition of capital assets. But so long as the money is utilised for business purposes the interest will have to be allowed as deduction. It is well settled that business expenditure is not confirmed to expenses incurred on revenue account. Capital expenditure may not be allowed as a deduction under section 37 because the section specifically bars any deduction of expenditure of capital nature. But section 36 is differently worded. There is no bar in section 36(1)(iii) to allowance of interest paid in respect of capital borrowed which has been utilised for purchase of a capital asset. The position of law in this regard was explained by the Supreme Court in the cases of India Cements Ltd. Vs. CIT (1966) 60 ITR 52 and State of Madras Vs. G.J. Coelhi (1964) 53 ITR 186." | 1 | 2,158 | 773 | ### 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:
reference to the provisions of Section 45(2) of the Income Tax Act.6. Revenue is in appeal on the following questions:"(a) Whether in view of facts and circumstances of the case the Honble ITAT is justified in allowing the interest on the borrowed fund u/s. section 36(1)(iii) of the Income Tax Act, 1961, when the share of the group company which was acquired was not shown as stock in trade but as investment(b) Whether in view of facts and circumstances of the case the Honble ITAT is justified in allowing the interest on the borrowed fund u/s. section 36(1)(iii) of the Income Tax Act, 1961, when the money is not used for business purpose as held by the A.O. and confirmed by the C.I.T. said finding of fact was not justified by the I.T.A.T.(c) Whether in view of facts and circumstances of the case the Honble ITAT is justified in allowing the interest on the borrowed fund u/s. section 36(1)(iii) of the Income Tax Act, 1961, on the basis of the judgment of Calcutta High Court in case of Rajeeva Lochan Kanoria, without appreciating the factual position in the said case and the present case, the assesseee business in case of Rajeeva Lochan Kanoria was in the business of acquiring share for managing, controlling and rehabilitating different company where as in the present case it was not the business of the assessee as held by the authority below(d) Whether in the facts and circumstances of the case and in law, the Tribunal is right in restoring the issue of valuation of closing stock of the shares held by the respondent in LKP Merchant Financing Ltd. when the said shares were held as an investment and not as stock in trade"7. We may firstly consider the first three questions as to whether the interest of borrowed capital which was utilised in the business of purchase of shares both by way of investment and stock in trade is allowable deduction.In so far as first three questions are concerned, in our opinion a Coordinate Bench of this Court in C.I.T. Vs. Lokhandwala (supra) had addressed itself to this issue. Reliance was placed on India w Cements Ld. Vs. CIT (1966) 60 ITR 52 (SC) which was under Section 10(2)(3) of the Income Tax Act, 1922 which corresponds to section 36(1)(3) of the present Act. This court answered the issue in the following manner:"That, while adjudicating the claim for deduction under section 36(1)(iii) of the Act, the nature of the expense -whether the expense was on capital account or revenue account - was irrelevant as the section itself says that interest paid by the assessee on the capital borrowed by the assessee was an item of deduction. That the utilization of the capital was irrelevant for the purpose of adjudicating the claim for deduction under section 36(1)(iii) of the Act. (see the judgment of the Bombay High Court in the case of Calico Dying and Printing Works Vs. CIT (1958) 34 ITR 265 ). In that judgment, it has been laid down that where an assessee claims deduction of interest paid on capital borrowed, all that the assesee had to show was that the capital which was borrowed was used for business purpose in the relevant year of account and it did not matter whether the capital was borrowed in order to acquire a revenue asset or a capital asset. ..."It may be noted that in India Cements Ltd. (supra) the Apex Court was specifically pleased to observe that the object of the loan is an irrelevant consideration. In the State of Madras Vs. G.J. Coelho, 53 ITR 186 the Supreme Court was dealing with the deduction claimed under Section 5(e) of the Madras Plantations Agricultural Income Tax Act, 1955. While considering the issue the court was pleased to observe that in principle there is no distinction between interest paid on capital borrowed for the acquisition of a plantation and interest paid on capital borrowed for the purpose of an existing plantation. Both are for the purpose of the plantation. The court further observed that the payment of interest on the amount borrowed for the purpose of the plantations when the whole transaction of purchase and the working of the plantations was viewed as an integrated whole was so closely related to the plantations that the expenditure could be said to be laid out or expended wholly and exclusively for the purpose of the plantations.8. We may also gainfully refer to the judgment of the Calcutta High Court in Commissioner of Income Tax Vs. Rajeeva Lochan Kanoria, 208 ITR 616 . The learned Court was considering section 36(1)(iii) and was pleased to observe as under:"The only enquiry that is to be made is whether the payment of interest was in respect of capital borrowed for the purpose of the assessees business or profession. There is no dispute that the capital was borrowed in the instant case and interest was paid on the borrowed capital. It is to be established that the amount was borrowed for the purpose of business or profession. The amount borrowed may be utilized for the purpose of acquisition of stock in trade or for the purpose of acquisition of capital assets. But so long as the money is utilised for business purposes the interest will have to be allowed as deduction. It is well settled that business expenditure is not confirmed to expenses incurred on revenue account. Capital expenditure may not be allowed as a deduction under section 37 because the section specifically bars any deduction of expenditure of capital nature. But section 36 is differently worded. There is no bar in section 36(1)(iii) to allowance of interest paid in respect of capital borrowed which has been utilised for purchase of a capital asset. The position of law in this regard was explained by the Supreme Court in the cases of India Cements Ltd. Vs. CIT (1966) 60 ITR 52 and State of Madras Vs. G.J. Coelhi (1964) 53 ITR 186."
### Response:
1
### Explanation:
In so far as first three questions are concerned, in our opinion a Coordinate Bench of this Court in C.I.T. Vs. Lokhandwala (supra) had addressed itself to this issue. Reliance was placed on India w Cements Ld. Vs. CIT (1966) 60 ITR 52 (SC) which was under Section 10(2)(3) of the Income Tax Act, 1922 which corresponds to section 36(1)(3) of the present Act. This court answered the issue in the following manner:"That, while adjudicating the claim for deduction under section 36(1)(iii) of the Act, the nature of the expensewhether the expense was on capital account or revenue accountwas irrelevant as the section itself says that interest paid by the assessee on the capital borrowed by the assessee was an item of deduction. That the utilization of the capital was irrelevant for the purpose of adjudicating the claim for deduction under section 36(1)(iii) of the Act. (see the judgment of the Bombay High Court in the case of Calico Dying and Printing Works Vs. CIT (1958) 34 ITR 265 ). In that judgment, it has been laid down that where an assessee claims deduction of interest paid on capital borrowed, all that the assesee had to show was that the capital which was borrowed was used for business purpose in the relevant year of account and it did not matter whether the capital was borrowed in order to acquire a revenue asset or a capital asset. ..."It may be noted that in India Cements Ltd. (supra) the Apex Court was specifically pleased to observe that the object of the loan is an irrelevant consideration. In the State of Madras Vs. G.J. Coelho, 53 ITR 186 the Supreme Court was dealing with the deduction claimed under Section 5(e) of the Madras Plantations Agricultural Income Tax Act, 1955. While considering the issue the court was pleased to observe that in principle there is no distinction between interest paid on capital borrowed for the acquisition of a plantation and interest paid on capital borrowed for the purpose of an existing plantation. Both are for the purpose of the plantation. The court further observed that the payment of interest on the amount borrowed for the purpose of the plantations when the whole transaction of purchase and the working of the plantations was viewed as an integrated whole was so closely related to the plantations that the expenditure could be said to be laid out or expended wholly and exclusively for the purpose of the plantations.8. We may also gainfully refer to the judgment of the Calcutta High Court in Commissioner of Income Tax Vs. Rajeeva Lochan Kanoria, 208 ITR 616 . The learned Court was considering section 36(1)(iii) and was pleased to observe as under:"The only enquiry that is to be made is whether the payment of interest was in respect of capital borrowed for the purpose of the assessees business or profession. There is no dispute that the capital was borrowed in the instant case and interest was paid on the borrowed capital. It is to be established that the amount was borrowed for the purpose of business or profession. The amount borrowed may be utilized for the purpose of acquisition of stock in trade or for the purpose of acquisition of capital assets. But so long as the money is utilised for business purposes the interest will have to be allowed as deduction. It is well settled that business expenditure is not confirmed to expenses incurred on revenue account. Capital expenditure may not be allowed as a deduction under section 37 because the section specifically bars any deduction of expenditure of capital nature. But section 36 is differently worded. There is no bar in section 36(1)(iii) to allowance of interest paid in respect of capital borrowed which has been utilised for purchase of a capital asset. The position of law in this regard was explained by the Supreme Court in the cases of India Cements Ltd. Vs. CIT (1966) 60 ITR 52 and State of Madras Vs. G.J. Coelhi (1964) 53 ITR 186."
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State of U.P Vs. Nagau and Ors | FAZAL ALI, J. In this appeal by special leave, the respondents 1 and 2 along with other accused were charged under S. 302/149 and were convicted by the learned Sessions Judge. Thereafter the accused filed an appeal to the High Court of Allahabad which acquitted respondents Nagu and Rameshwar Prasad and upheld the conviction of others. The State came up to this Court by special leave to appeal which was granted and hence this appeal before us. Mr. Uniyal appearing for the State of U.P. has raised only two points in this case. He has submitted that the judgment of the High Court, so far as the acquittal of Nagu and Rameshwar Prasad is concerned, is extremely cryptic and it has not given any good reason for acquitting them. A detailed narrative of the occurrence has been given in the judgment of the Sessions Judge and the High Court and it is not necessary for us to repeat the same over again. The central evidence against the respondents particularly respondents Nos. 1 and 2 consists of P.Ws. 1, 13 and 15. The High Court has disbelieved the prosecution case so far as respondents were concerned on the ground that names of some witnesses were not mentioned in the F.I.R. although they were known to P.W. 2, Chhannu Singh, the informant. Another reason given by the High Court was that there was an earlier dispute as a result of which a complaint was filed but the name of the respondent Rameshwar Prasad was not mentioned therein. That dispute has nothing to do with the present occurrence. Thus the fact that the name of the respondent was not mentioned in that application has absolutely no relevance to the facts of the present case. The High Court, however, believed the evidence of Channu Singh, P.W. 1 and upheld the conviction of Surender Bahadur on that evidence. So far as the respondents are concerned, some of the eye-witnesses were not known to him and their names were not supplied to the eye-witnesses as admitted by him, by the investigating officer. Assuming that it was so, the evidence of those witnesses could be discarded but that would not discredit the evidence of Channu Singh whose evidence the High Court itself believed with respect to other accused. Moreover, the High Court completely overlooked the fact that apart from respondents Nos. 1 and 2, the name of P.W. 1 Channu Singh was also mentioned in the F.I.R. and this witness was fully known to the informant. This witness clearly proves the entire occurrence and the participation of the respondents in the occurrence. In the circumstances, therefore, there was absolutely no reason why the High Court should have disbelieved P.W. 1, Channu Singh and P.W. 15 Baboo Singh who have fully proved the occurrence. Mr. Pramod Swarup, in spite of his best efforts to support the judgment of the High Court, has not been able to convince us. This is not a case where the High Court has reversed the order of acquittal passed by the Sessions Judge after giving sufficient reasons. Nor is it a case where another view is reasonably possible on the evidence. In the first place, the High Court has committed an error of law in disbelieving Channu Singh so far as respondents are concerned merely because some of the witnesses were not mentioned in the F.I.R. who were not known to Channu Singh. Secondly, the High Court has completely ignored the evidence of P. W. 15 who was mentioned in the F.I.R. and who has proved the occurrence as an eye-witness. In view of these circumstances, therefore, we are satisfied that the judgment of the High Court was manifestly wrong and cannot be sustained. | 1[ds]Nor is it a case where another view is reasonably possible on the evidence. In the first place, the High Court has committed an error of law in disbelieving Channu Singh so far as respondents are concerned merely because some of the witnesses were not mentioned in the F.I.R. who were not known to Channu Singh. Secondly, the High Court has completely ignored the evidence of P. W. 15 who was mentioned in the F.I.R. and who has proved the occurrence as an. In view of these circumstances, therefore, we are satisfied that the judgment of the High Court was manifestly wrong and cannot be sustained. | 1 | 683 | 121 | ### 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:
FAZAL ALI, J. In this appeal by special leave, the respondents 1 and 2 along with other accused were charged under S. 302/149 and were convicted by the learned Sessions Judge. Thereafter the accused filed an appeal to the High Court of Allahabad which acquitted respondents Nagu and Rameshwar Prasad and upheld the conviction of others. The State came up to this Court by special leave to appeal which was granted and hence this appeal before us. Mr. Uniyal appearing for the State of U.P. has raised only two points in this case. He has submitted that the judgment of the High Court, so far as the acquittal of Nagu and Rameshwar Prasad is concerned, is extremely cryptic and it has not given any good reason for acquitting them. A detailed narrative of the occurrence has been given in the judgment of the Sessions Judge and the High Court and it is not necessary for us to repeat the same over again. The central evidence against the respondents particularly respondents Nos. 1 and 2 consists of P.Ws. 1, 13 and 15. The High Court has disbelieved the prosecution case so far as respondents were concerned on the ground that names of some witnesses were not mentioned in the F.I.R. although they were known to P.W. 2, Chhannu Singh, the informant. Another reason given by the High Court was that there was an earlier dispute as a result of which a complaint was filed but the name of the respondent Rameshwar Prasad was not mentioned therein. That dispute has nothing to do with the present occurrence. Thus the fact that the name of the respondent was not mentioned in that application has absolutely no relevance to the facts of the present case. The High Court, however, believed the evidence of Channu Singh, P.W. 1 and upheld the conviction of Surender Bahadur on that evidence. So far as the respondents are concerned, some of the eye-witnesses were not known to him and their names were not supplied to the eye-witnesses as admitted by him, by the investigating officer. Assuming that it was so, the evidence of those witnesses could be discarded but that would not discredit the evidence of Channu Singh whose evidence the High Court itself believed with respect to other accused. Moreover, the High Court completely overlooked the fact that apart from respondents Nos. 1 and 2, the name of P.W. 1 Channu Singh was also mentioned in the F.I.R. and this witness was fully known to the informant. This witness clearly proves the entire occurrence and the participation of the respondents in the occurrence. In the circumstances, therefore, there was absolutely no reason why the High Court should have disbelieved P.W. 1, Channu Singh and P.W. 15 Baboo Singh who have fully proved the occurrence. Mr. Pramod Swarup, in spite of his best efforts to support the judgment of the High Court, has not been able to convince us. This is not a case where the High Court has reversed the order of acquittal passed by the Sessions Judge after giving sufficient reasons. Nor is it a case where another view is reasonably possible on the evidence. In the first place, the High Court has committed an error of law in disbelieving Channu Singh so far as respondents are concerned merely because some of the witnesses were not mentioned in the F.I.R. who were not known to Channu Singh. Secondly, the High Court has completely ignored the evidence of P. W. 15 who was mentioned in the F.I.R. and who has proved the occurrence as an eye-witness. In view of these circumstances, therefore, we are satisfied that the judgment of the High Court was manifestly wrong and cannot be sustained.
### Response:
1
### Explanation:
Nor is it a case where another view is reasonably possible on the evidence. In the first place, the High Court has committed an error of law in disbelieving Channu Singh so far as respondents are concerned merely because some of the witnesses were not mentioned in the F.I.R. who were not known to Channu Singh. Secondly, the High Court has completely ignored the evidence of P. W. 15 who was mentioned in the F.I.R. and who has proved the occurrence as an. In view of these circumstances, therefore, we are satisfied that the judgment of the High Court was manifestly wrong and cannot be sustained.
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M/S.Sun Beverages (P) Ltd Vs. State Of Uttar Pradesh | Industry Unit. 22. It is also pertinent to notice that the respondents without issuing any show cause notice to the appellant as to why the said recovery be not made against the appellant and without affording any opportunity to show cause, a call notice dated 15.09.1987 has been issued to the appellant for recovering that amount and again followed by a recovery certificate from the office of the Commissioner and and Director of Industries for recovering the sum of Rs. 18,72,821.92 as the arrears of land revenue. In our opinion, the entire recovery proceedings initiated against the appellant by the respondents as arrears of land revenue is absolutely illegal and in gross violation of the principles of natural justice.23. In this context, we may reproduce clause 13 of the Scheme which reads as follows: "13. Recovery of Special State Capital Grant: The Director of Industry, Uttar Pradesh shall have power to get the Special State Grant recovered as is the recovery of land revenue is done consequent to following circumstances:a) If the Industrial Unit has obtained the State Capital Grant by giving false facts or by submitting necessary facts in fraudulent manner.b) if the Unit has stopped the production work within five years of the commencement of the production. However, this condition of restriction shall not be applicable to such units where the production work has remained suspended for a short period of 6 months due to reasons beyond its control such as sick and shortage of power etc.c) If industrial Unit fails to provide prescribed details and information sought for. If Director of Industries of Uttar Pradesh could not get the Special State Capital Grant recovered from the Unit under the normal procedure, then he can get the amount of loan recovered as the arrear of land revenue recovery done under the Government of Uttar Pradesh rules.d) If the Director of any Unit who has partly or fully received the grant has to change the place of his unit or dispose of any part of immoveable property/assets within five years fro the date of start of production." Clause 2 of the Agreement has been extracted in paragraphs supra.24. The above two clauses mentioned the circumstances under which the cash subsidy may be recovered as arrears of land revenue. None of the said clauses is applicable or attracted in the instant case. Therefore, we are of the opinion that the entire recovery proceedings are absolutely illegal and without jurisdiction. It is not the case of the respondents that the appellant has practised any fraud or guilty of making of any mis-representations in obtaining the sanction/eligibility. The only provision which refers for recovery of cash subsidy as arrears of land revenue is mentioned in the above two clauses and inasmuch as none of the conditions enumerated therein is attracted, the entire recovery of the cash subsidy as arrears of land revenue is illegal. Even otherwise, the allegations made in the call notice for recovery of the cash subsidy as arrears of land revenue is uncalled for.25. We have carefully perused the entire Scheme which goes to show that the cash subsidy would be granted to the unit which is a Pioneer Unit i.e. having an investment of more than Rs. 1 crore and which has been established after 01.10.1982 and at the time of grant of cash subsidy, the said Unit should be registered as DGTD Unit. Nowhere it provides that the said industry should remain as a DGTD Unit for a period of five years as mentioned in clause 4 of the call notice. A perusal of the scheme further goes to show that it has been provided in the scheme that the production should not be stopped for a period of five years but it nowhere provides that the unit should remain as a DGTD Unit for a period of five years. In fact, the appellant had been compelled to get the registration under the Small Scale Industries Unit on account of the change in the definition of the Small Scale Industries Unit by the Central Government and not on account of any inaction of the appellant. Hence, if on account of the change in the definition of the Small Scale Industries Unit, the appellant was de-recognised as DGTD Unit the the appellant could not be denied the benefit of cash subsidy.26. We have already seen that clause 13 of the Scheme and clause 2 of the Agreement has been invoked by the respondents for the recovery of the subsidy. A close scrutiny of the above two clauses goes to show that in the event of violation of any conditions, the recovery will be made as arrears of land revenue and so prior to initiating action for breach of the terms of clause 13 of the Scheme and clause 2 of the Agreement, the opportunity ought to have been provided by the respondent No. 2 to the appellant to demonstrate whether the provisions of the Scheme and the Agreement are violated or not and that having not done so the entire recovery proceedings initiated against the appellant is bad for violation of principles of natural justice.27. As already observed, a perusal of the pleadings would reveal that there is no allegation regarding playing of fraud or mis-representation in obtaining the sanction/eligibility. The argument of the learned counsel for the respondents that the appellant on his own freewill applied for de-registration vide letter dated 12.06.1987 and that the appellants were no more entitled to be registered under DGTD and since the constitution of the Company had undergone change and under the changed conditions the respondents were entitled to recover the subsidy given to the appellant cannot at all be countenanced.28. Having taken note of the aforesaid factual situation, we have no hesitation to hold that the respondents have acted arbitrarily and contrary to the terms of the Scheme and the Agreement and on the basis of unwarranted assumptions in seeking to recover the amounts given as subsidy to the appellant. | 1[ds]16. In the instant case, the following facts are not inThat both the parties to this action have entered into an Agreement;(2) That the Government of U.P. formulated a scheme known as Capital Grant Scheme for the grant of subsidies to various industrial units for giving an impetus to the industrialisation of the backward areas of the State;(3) That the Scheme provides for payment of subsidies to the industries sector in the zero industrial area;(4) That the petitioner, in fact, had set up his industrial unit in the zero industrial area;(5) That the industrial unit had been set up during the period from 01.10.1982 to 31.03.1985 in a backward area where no heavy industry is established prior to 01.10.1982;(6) That the appellants unit was treated as a Pioneer Unit within the terms of the scheme and that it was registered with DGTD;(7) That the appellant had made a total investment of Rs. 1,07,78,368/on building, land and machinery etc. and became entitled to cash subsidy under the Scheme;(8) That the appellants unit was registered with DGTD as a Medium Scale Industry and that the appellant had fulfilled the conditions of the scheme;(9) That the sanction of subsidy of Rs. 15 lacs to the appellant and payment of the same in two instalments;(10) That the Government of India has issued fresh guidelines on 18.03.1985 which provided that an industry, investment of which did not exceed Rs. 35 lacs in plant and machinery alone shall be entitled to be treated as a Small Scale Industry;(11) That the DGTD cancelled the registration of the appellant as a Medium Scale Industry on 04.08.1987 and directed the appellant to approach Director of Industries, U.P. for registration as a Small Scale Industry and as a consequence ofas a Medium Scale Industry by the DGTD, the Government of U.P. issued notice for recovery of Rs. 15 lacs and again called upon the appellant to refund Rs. 15 lacs as DGTD had cancelled the registration contending that the appellant had violated condition 1(b) of the Agreement.A resume of the aforesaid undisputed facts clearly show that there has been absolutely no violation of any provision of the Scheme on the part of the appellant and that the demand for the refund was wholly illegal and arbitrary.18. In this background, we have also to see as to whether the grantee/appellant complied with and observed all the provisions of the Scheme and of the covenants of the Agreement or violated any terms of the Agreement.19. We have already noticed as a result of change in the definition of Small Scale Industry by the Development Commissioner, Government of India the industrial units which had invested upto Rs. 35 lacs in plant and machinery was liable to be treated as small scale industries and that it was on this ground alone, the appellants industrial unit beenas a Small Scale Industry but it continued to be a pioneer unit in terms of the scheme to which the subsidy had been granted to the appellant. In the circumstances, the appellant stated that the question of seeking refund of the amount from them did not arise as the appellant had not violated any terms of the Scheme or of the Agreement. In our view, the High Court has overlooked the aforesaid facts and documents in this regard.A resume of the aforesaid undisputed facts clearly show that there has been absolutely no violation of any provision of the Scheme on the part of the appellant and that the demand for the refund was wholly illegal and arbitrary.18. In this background, we have also to see as to whether the grantee/appellant complied with and observed all the provisions of the Scheme and of the covenants of the Agreement or violated any terms of the Agreement.19. We have already noticed as a result of change in the definition of Small Scale Industry by the Development Commissioner, Government of India the industrial units which had invested upto Rs. 35 lacs in plant and machinery was liable to be treated as small scale industries and that it was on this ground alone, the appellants industrial unit beenas a Small Scale Industry but it continued to be a pioneer unit in terms of the scheme to which the subsidy had been granted to the appellant. In the circumstances, the appellant stated that the question of seeking refund of the amount from them did not arise as the appellant had not violated any terms of the Scheme or of the Agreement. In our view, the High Court has overlooked the aforesaid facts and documents in this regard.The appellant was registered as a DGTD Unit on 21.10.1983 and the said registration continued. Thereafter, in the year 1985, there have been some charges in the definition of the Small Scale Industries by the Development Commissioner, Government of India by which the definition of a Small Scale Industries Unit has been amended and the limit of investment in the plant and machineries has been extended from Rs. 20 lacs to Rs. 35 lacs. It has also been made clear that while computing the value of the machineries, only the value of those machineries will be considered which are directly involved in the production, while the other accessories and other machineries which are used in the manufacturing process but are not directly involved in the process of manufacture were not to be included for considering the unit as Small Scale Industry unit. In this view of the matter, even though the investment of the appellant in the machineries was more than Rs. 35 lacs, hut the machineries which are utilised for manufacturing was less than Rs. 35 lacs i.e. Rs.hence the appellant was compelled to get it registered as Small Scale Industry unit, instead of a DGTD Unit. Thereafter, the appellant applied for registration as Small Scale Industry Unit and the requisite registration certificate was granted to the appellant by the General Manger, District Industries Centre, Agra, registering the appellant as a Small Scale Industry Unit.It is also pertinent to notice that the respondents without issuing any show cause notice to the appellant as to why the said recovery be not made against the appellant and without affording any opportunity to show cause, a call notice dated 15.09.1987 has been issued to the appellant for recovering that amount and again followed by a recovery certificate from the office of the Commissioner and and Director of Industries for recovering the sum of Rs. 18,72,821.92 as the arrears of land revenue. In our opinion, the entire recovery proceedings initiated against the appellant by the respondents as arrears of land revenue is absolutely illegal and in gross violation of the principles of natural justice.23. In this context, we may reproduce clause 13 of the Scheme which reads asRecovery of Special State Capital Grant: The Director of Industry, Uttar Pradesh shall have power to get the Special State Grant recovered as is the recovery of land revenue is done consequent to following circumstances:a) If the Industrial Unit has obtained the State Capital Grant by giving false facts or by submitting necessary facts in fraudulent manner.b) if the Unit has stopped the production work within five years of the commencement of the production. However, this condition of restriction shall not be applicable to such units where the production work has remained suspended for a short period of 6 months due to reasons beyond its control such as sick and shortage of power etc.c) If industrial Unit fails to provide prescribed details and information sought for. If Director of Industries of Uttar Pradesh could not get the Special State Capital Grant recovered from the Unit under the normal procedure, then he can get the amount of loan recovered as the arrear of land revenue recovery done under the Government of Uttar Pradesh rules.d) If the Director of any Unit who has partly or fully received the grant has to change the place of his unit or dispose of any part of immoveable property/assets within five years fro the date of start of2 of the Agreement has been extracted in paragraphs supra.24. The above two clauses mentioned the circumstances under which the cash subsidy may be recovered as arrears of land revenue. None of the said clauses is applicable or attracted in the instant case. Therefore, we are of the opinion that the entire recovery proceedings are absolutely illegal and without jurisdiction. It is not the case of the respondents that the appellant has practised any fraud or guilty of making of anyin obtaining the sanction/eligibility. The only provision which refers for recovery of cash subsidy as arrears of land revenue is mentioned in the above two clauses and inasmuch as none of the conditions enumerated therein is attracted, the entire recovery of the cash subsidy as arrears of land revenue is illegal. Even otherwise, the allegations made in the call notice for recovery of the cash subsidy as arrears of land revenue is uncalled for.25. We have carefully perused the entire Scheme which goes to show that the cash subsidy would be granted to the unit which is a Pioneer Unit i.e. having an investment of more than Rs. 1 crore and which has been established after 01.10.1982 and at the time of grant of cash subsidy, the said Unit should be registered as DGTD Unit. Nowhere it provides that the said industry should remain as a DGTD Unit for a period of five years as mentioned in clause 4 of the call notice. A perusal of the scheme further goes to show that it has been provided in the scheme that the production should not be stopped for a period of five years but it nowhere provides that the unit should remain as a DGTD Unit for a period of five years. In fact, the appellant had been compelled to get the registration under the Small Scale Industries Unit on account of the change in the definition of the Small Scale Industries Unit by the Central Government and not on account of any inaction of the appellant. Hence, if on account of the change in the definition of the Small Scale Industries Unit, the appellant wasas DGTD Unit the the appellant could not be denied the benefit of cash subsidy.26. We have already seen that clause 13 of the Scheme and clause 2 of the Agreement has been invoked by the respondents for the recovery of the subsidy. A close scrutiny of the above two clauses goes to show that in the event of violation of any conditions, the recovery will be made as arrears of land revenue and so prior to initiating action for breach of the terms of clause 13 of the Scheme and clause 2 of the Agreement, the opportunity ought to have been provided by the respondent No. 2 to the appellant to demonstrate whether the provisions of the Scheme and the Agreement are violated or not and that having not done so the entire recovery proceedings initiated against the appellant is bad for violation of principles of natural justice.27. As already observed, a perusal of the pleadings would reveal that there is no allegation regarding playing of fraud orin obtaining the sanction/eligibility. The argument of the learned counsel for the respondents that the appellant on his own freewill applied forvide letter dated 12.06.1987 and that the appellants were no more entitled to be registered under DGTD and since the constitution of the Company had undergone change and under the changed conditions the respondents were entitled to recover the subsidy given to the appellant cannot at all be countenanced.28. Having taken note of the aforesaid factual situation, we have no hesitation to hold that the respondents have acted arbitrarily and contrary to the terms of the Scheme and the Agreement and on the basis of unwarranted assumptions in seeking to recover the amounts given as subsidy to the appellant. | 1 | 4,821 | 2,135 | ### 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:
Industry Unit. 22. It is also pertinent to notice that the respondents without issuing any show cause notice to the appellant as to why the said recovery be not made against the appellant and without affording any opportunity to show cause, a call notice dated 15.09.1987 has been issued to the appellant for recovering that amount and again followed by a recovery certificate from the office of the Commissioner and and Director of Industries for recovering the sum of Rs. 18,72,821.92 as the arrears of land revenue. In our opinion, the entire recovery proceedings initiated against the appellant by the respondents as arrears of land revenue is absolutely illegal and in gross violation of the principles of natural justice.23. In this context, we may reproduce clause 13 of the Scheme which reads as follows: "13. Recovery of Special State Capital Grant: The Director of Industry, Uttar Pradesh shall have power to get the Special State Grant recovered as is the recovery of land revenue is done consequent to following circumstances:a) If the Industrial Unit has obtained the State Capital Grant by giving false facts or by submitting necessary facts in fraudulent manner.b) if the Unit has stopped the production work within five years of the commencement of the production. However, this condition of restriction shall not be applicable to such units where the production work has remained suspended for a short period of 6 months due to reasons beyond its control such as sick and shortage of power etc.c) If industrial Unit fails to provide prescribed details and information sought for. If Director of Industries of Uttar Pradesh could not get the Special State Capital Grant recovered from the Unit under the normal procedure, then he can get the amount of loan recovered as the arrear of land revenue recovery done under the Government of Uttar Pradesh rules.d) If the Director of any Unit who has partly or fully received the grant has to change the place of his unit or dispose of any part of immoveable property/assets within five years fro the date of start of production." Clause 2 of the Agreement has been extracted in paragraphs supra.24. The above two clauses mentioned the circumstances under which the cash subsidy may be recovered as arrears of land revenue. None of the said clauses is applicable or attracted in the instant case. Therefore, we are of the opinion that the entire recovery proceedings are absolutely illegal and without jurisdiction. It is not the case of the respondents that the appellant has practised any fraud or guilty of making of any mis-representations in obtaining the sanction/eligibility. The only provision which refers for recovery of cash subsidy as arrears of land revenue is mentioned in the above two clauses and inasmuch as none of the conditions enumerated therein is attracted, the entire recovery of the cash subsidy as arrears of land revenue is illegal. Even otherwise, the allegations made in the call notice for recovery of the cash subsidy as arrears of land revenue is uncalled for.25. We have carefully perused the entire Scheme which goes to show that the cash subsidy would be granted to the unit which is a Pioneer Unit i.e. having an investment of more than Rs. 1 crore and which has been established after 01.10.1982 and at the time of grant of cash subsidy, the said Unit should be registered as DGTD Unit. Nowhere it provides that the said industry should remain as a DGTD Unit for a period of five years as mentioned in clause 4 of the call notice. A perusal of the scheme further goes to show that it has been provided in the scheme that the production should not be stopped for a period of five years but it nowhere provides that the unit should remain as a DGTD Unit for a period of five years. In fact, the appellant had been compelled to get the registration under the Small Scale Industries Unit on account of the change in the definition of the Small Scale Industries Unit by the Central Government and not on account of any inaction of the appellant. Hence, if on account of the change in the definition of the Small Scale Industries Unit, the appellant was de-recognised as DGTD Unit the the appellant could not be denied the benefit of cash subsidy.26. We have already seen that clause 13 of the Scheme and clause 2 of the Agreement has been invoked by the respondents for the recovery of the subsidy. A close scrutiny of the above two clauses goes to show that in the event of violation of any conditions, the recovery will be made as arrears of land revenue and so prior to initiating action for breach of the terms of clause 13 of the Scheme and clause 2 of the Agreement, the opportunity ought to have been provided by the respondent No. 2 to the appellant to demonstrate whether the provisions of the Scheme and the Agreement are violated or not and that having not done so the entire recovery proceedings initiated against the appellant is bad for violation of principles of natural justice.27. As already observed, a perusal of the pleadings would reveal that there is no allegation regarding playing of fraud or mis-representation in obtaining the sanction/eligibility. The argument of the learned counsel for the respondents that the appellant on his own freewill applied for de-registration vide letter dated 12.06.1987 and that the appellants were no more entitled to be registered under DGTD and since the constitution of the Company had undergone change and under the changed conditions the respondents were entitled to recover the subsidy given to the appellant cannot at all be countenanced.28. Having taken note of the aforesaid factual situation, we have no hesitation to hold that the respondents have acted arbitrarily and contrary to the terms of the Scheme and the Agreement and on the basis of unwarranted assumptions in seeking to recover the amounts given as subsidy to the appellant.
### Response:
1
### Explanation:
appellant by the General Manger, District Industries Centre, Agra, registering the appellant as a Small Scale Industry Unit.It is also pertinent to notice that the respondents without issuing any show cause notice to the appellant as to why the said recovery be not made against the appellant and without affording any opportunity to show cause, a call notice dated 15.09.1987 has been issued to the appellant for recovering that amount and again followed by a recovery certificate from the office of the Commissioner and and Director of Industries for recovering the sum of Rs. 18,72,821.92 as the arrears of land revenue. In our opinion, the entire recovery proceedings initiated against the appellant by the respondents as arrears of land revenue is absolutely illegal and in gross violation of the principles of natural justice.23. In this context, we may reproduce clause 13 of the Scheme which reads asRecovery of Special State Capital Grant: The Director of Industry, Uttar Pradesh shall have power to get the Special State Grant recovered as is the recovery of land revenue is done consequent to following circumstances:a) If the Industrial Unit has obtained the State Capital Grant by giving false facts or by submitting necessary facts in fraudulent manner.b) if the Unit has stopped the production work within five years of the commencement of the production. However, this condition of restriction shall not be applicable to such units where the production work has remained suspended for a short period of 6 months due to reasons beyond its control such as sick and shortage of power etc.c) If industrial Unit fails to provide prescribed details and information sought for. If Director of Industries of Uttar Pradesh could not get the Special State Capital Grant recovered from the Unit under the normal procedure, then he can get the amount of loan recovered as the arrear of land revenue recovery done under the Government of Uttar Pradesh rules.d) If the Director of any Unit who has partly or fully received the grant has to change the place of his unit or dispose of any part of immoveable property/assets within five years fro the date of start of2 of the Agreement has been extracted in paragraphs supra.24. The above two clauses mentioned the circumstances under which the cash subsidy may be recovered as arrears of land revenue. None of the said clauses is applicable or attracted in the instant case. Therefore, we are of the opinion that the entire recovery proceedings are absolutely illegal and without jurisdiction. It is not the case of the respondents that the appellant has practised any fraud or guilty of making of anyin obtaining the sanction/eligibility. The only provision which refers for recovery of cash subsidy as arrears of land revenue is mentioned in the above two clauses and inasmuch as none of the conditions enumerated therein is attracted, the entire recovery of the cash subsidy as arrears of land revenue is illegal. Even otherwise, the allegations made in the call notice for recovery of the cash subsidy as arrears of land revenue is uncalled for.25. We have carefully perused the entire Scheme which goes to show that the cash subsidy would be granted to the unit which is a Pioneer Unit i.e. having an investment of more than Rs. 1 crore and which has been established after 01.10.1982 and at the time of grant of cash subsidy, the said Unit should be registered as DGTD Unit. Nowhere it provides that the said industry should remain as a DGTD Unit for a period of five years as mentioned in clause 4 of the call notice. A perusal of the scheme further goes to show that it has been provided in the scheme that the production should not be stopped for a period of five years but it nowhere provides that the unit should remain as a DGTD Unit for a period of five years. In fact, the appellant had been compelled to get the registration under the Small Scale Industries Unit on account of the change in the definition of the Small Scale Industries Unit by the Central Government and not on account of any inaction of the appellant. Hence, if on account of the change in the definition of the Small Scale Industries Unit, the appellant wasas DGTD Unit the the appellant could not be denied the benefit of cash subsidy.26. We have already seen that clause 13 of the Scheme and clause 2 of the Agreement has been invoked by the respondents for the recovery of the subsidy. A close scrutiny of the above two clauses goes to show that in the event of violation of any conditions, the recovery will be made as arrears of land revenue and so prior to initiating action for breach of the terms of clause 13 of the Scheme and clause 2 of the Agreement, the opportunity ought to have been provided by the respondent No. 2 to the appellant to demonstrate whether the provisions of the Scheme and the Agreement are violated or not and that having not done so the entire recovery proceedings initiated against the appellant is bad for violation of principles of natural justice.27. As already observed, a perusal of the pleadings would reveal that there is no allegation regarding playing of fraud orin obtaining the sanction/eligibility. The argument of the learned counsel for the respondents that the appellant on his own freewill applied forvide letter dated 12.06.1987 and that the appellants were no more entitled to be registered under DGTD and since the constitution of the Company had undergone change and under the changed conditions the respondents were entitled to recover the subsidy given to the appellant cannot at all be countenanced.28. Having taken note of the aforesaid factual situation, we have no hesitation to hold that the respondents have acted arbitrarily and contrary to the terms of the Scheme and the Agreement and on the basis of unwarranted assumptions in seeking to recover the amounts given as subsidy to the appellant.
|
Thakur Birendra Singh Vs. State of Madhya Pradesh & Others | as the case may be, under the Act." (Hereinafter referred to as the Ryotwari Act).Section 34 of the Ryotwari Act provides :"Subject to the provisions of the Limitation Act in force for the time being regarding the extension and computation of the period of limitation :-(1) no appeal to the Board shall be brought after the expiry of ninety days from the date of the decision or the order complained of;(2) X X X X."Section 149(2) of the Ryotwari Act provides that :"Except where it is otherwise specially provided the general principles of Law of Limitation for the time being in force in the United State regarding extension of the principles of limitation shall apply to claims made under this Act before a Revenue Officer."It is clear form the language of Section 34 that in hearing an appeal under the Ryotwari Act the Board must guide itself by the provisions of the Limitation Act in force for extension and computation of the period of limitation. It would appear that Section 149(2) was aimed at giving a similar guideline to the Revenue Officer. To give the said interpretation to Section 149(2) it is necessary to read "extension of the principles of limitation" occurring therein as "extension of the period of limitation" for otherwise the section would be devoid of any meaning. The general principles of limitation are those contained in the Limitation Act of 1908 which were in force at the date when the appeal was filed before the board of Revenue. Section 3 of the Limitation Act, 1908, laid down that subject to the provisions contained in Sections 4 to 25 (inclusive), every suit instituted, appeal preferred, and application made, after the period of limitation prescribed therefor by the First Schedule was to be dismissed although limitation had not been set up as a defence. Under Section 5 of the Limitation Act of 1908 an appeal could be admitted after the period of limitation prescribed therefor when the appellant satisfied the court that he had sufficient cause for not preferring or making the application within such period. Under Section 29(2) of the Limitation Act :"Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of Section 3 shall apply, as if such period were prescribed therefor in that Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by the special or local law -(a) the provisions contained in Section 4, Sections 9 to 18 and Section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and(b) the remaining provisions of this Act shall not apply."These sections go to show that unless excluded by the Jagirs Act or Ryotwari Act, Section 12 of the Limitation Act would be applicable to appeals filed before the Board of Revenue under any of these Acts.7. It has been held by a Division Bench of the Madhya Pradesh High Court in Brijraj Singh v. The Board of Revenue and Another (Misc. Civil Case No. 22/1962, decided on 18-3-1963) that the expression "principles of limitation" in Section 149(2) mentioned above should be construed as extension of the period of limitation. For the reasons given above, we are in agreement with the said conclusion of the Madhya Pradesh High Court. In our view, the word principle therein was inserted due to inept or careless drafting and what was meant was "period" and not principles.8. Even if we were to read the Statute as it is, the principle of the Limitation Act is to dismiss a suit, appeal or application if filed beyond time but also to extend the time for filing an appeal if the delay is explained. That principle is clearly capable of extension in the present case.9. If Sections 34 and 149(2) were applicable to the facts of the case before the Board of Revenue and we hold to that effect, the time spent in obtaining a copy of the judgment forming the basis of giving the reasons of the decision should have been excluded in computing the period of 90 days under Section 29 of the Jagirs Act. The appellant was not guilty of any laches in his appeal to the Board of Revenue. He applied for a copy of the judgment of the Jagir Commissioner on the day next after communication to him of the order of the Jagir Commissioner. Even if the application was unaccompanied by any fees prescribed for the purpose, the Board of Revenue should have taken this fact into consideration before holding the appellants appeal to be out of time. If the application for the copy of the judgment made on the 24th February was in order, the appeal was in time. Even if the time taken in obtaining the copy of the judgment be reckoned from the 12th March to 18th March, 1958, the appellant was out by two days only in filing the appeal to the Board of Revenue. If the 1st of June 1958 which happened to be a Sunday be left out of consideration, the appellant was out by one day only.10. As appears for the order, dated September 28, 1961 the Board of Revenue refused to entertain the appeal on the ground of limitation without considering the question as to whether the appellant had made out a case for condonation of delay, if any. In our view, the Board of Revenue had not acted judicially in throwing out the appeal. The High Court was therefore not right in upholding the order of the Board of Revenue which ignored the provisions of Sections 34 and 149(2) of the Ryotwari Act and the relevant provisions of the Limitation Act. A sounder view of the law was taken by another Division Bench of the same High Court in Brijraj Singhs case noted above. | 1[ds]These sections go to show that unless excluded by the Jagirs Act or Ryotwari Act, Section 12 of the Limitation Act would be applicable to appeals filed before the Board of Revenue under any of these Acts.7. It has been held by a Division Bench of the Madhya Pradesh High Court in Brijraj Singh v. The Board of Revenue and Another (Misc. Civil Case No. 22/1962, decided on 18-3-1963) that the expression "principles of limitation" in Section 149(2) mentioned above should be construed as extension of the period of limitation. For the reasons given above, we are in agreement with the said conclusion of the Madhya Pradesh High Court. In our view, the word principle therein was inserted due to inept or careless drafting and what was meant was "period" and not principles.8. Even if we were to read the Statute as it is, the principle of the Limitation Act is to dismiss a suit, appeal or application if filed beyond time but also to extend the time for filing an appeal if the delay is explained. That principle is clearly capable of extension in the present case.Even if we were to read the Statute as it is, the principle of the Limitation Act is to dismiss a suit, appeal or application if filed beyond time but also to extend the time for filing an appeal if the delay is explained. That principle is clearly capable of extension in the present case.As appears for the order, dated September 28, 1961 the Board of Revenue refused to entertain the appeal on the ground of limitation without considering the question as to whether the appellant had made out a case for condonation of delay, if any. In our view, the Board of Revenue had not acted judicially in throwing out the appeal. The High Court was therefore not right in upholding the order of the Board of Revenue which ignored the provisions of Sections 34 and 149(2) of the Ryotwari Act and the relevant provisions of the Limitation Act. A sounder view of the law was taken by another Division Bench of the same High Court in Brijraj Singhs case noted above.If Sections 34 and 149(2) were applicable to the facts of the case before the Board of Revenue and we hold to that effect, the time spent in obtaining a copy of the judgment forming the basis of giving the reasons of the decision should have been excluded in computing the period of 90 days under Section 29 of the Jagirs Act. The appellant was not guilty of any laches in his appeal to the Board of Revenue. He applied for a copy of the judgment of the Jagir Commissioner on the day next after communication to him of the order of the Jagir Commissioner. Even if the application was unaccompanied by any fees prescribed for the purpose, the Board of Revenue should have taken this fact into consideration before holding the appellants appeal to be out of time. If the application for the copy of the judgment made on the 24th February was in order, the appeal was in time. Even if the time taken in obtaining the copy of the judgment be reckoned from the 12th March to 18th March, 1958, the appellant was out by two days only in filing the appeal to the Board of Revenue. If the 1st of June 1958 which happened to be a Sunday be left out of consideration, the appellant was out by one dayis clear form the language of Section 34 that in hearing an appeal under the Ryotwari Act the Board must guide itself by the provisions of the Limitation Act in force for extension and computation of the period of limitation. It would appear that Section 149(2) was aimed at giving a similar guideline to the Revenue Officer. To give the said interpretation to Section 149(2) it is necessary to read "extension of the principles of limitation" occurring therein as "extension of the period of limitation" for otherwise the section would be devoid of any meaning. The general principles of limitation are those contained in the Limitation Act of 1908 which were in force at the date when the appeal was filed before the board of Revenue. Section 3 of the Limitation Act, 1908, laid down that subject to the provisions contained in Sections 4 to 25 (inclusive), every suit instituted, appeal preferred, and application made, after the period of limitation prescribed therefor by the First Schedule was to be dismissed although limitation had not been set up as a defence. Under Section 5 of the Limitation Act of 1908 an appeal could be admitted after the period of limitation prescribed therefor when the appellant satisfied the court that he had sufficient cause for not preferring or making the application within such period. Under Section 29(2) of the Limitation Actany special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of Section 3 shall apply, as if such period were prescribed therefor in that Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by the special or local | 1 | 2,370 | 960 | ### 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:
as the case may be, under the Act." (Hereinafter referred to as the Ryotwari Act).Section 34 of the Ryotwari Act provides :"Subject to the provisions of the Limitation Act in force for the time being regarding the extension and computation of the period of limitation :-(1) no appeal to the Board shall be brought after the expiry of ninety days from the date of the decision or the order complained of;(2) X X X X."Section 149(2) of the Ryotwari Act provides that :"Except where it is otherwise specially provided the general principles of Law of Limitation for the time being in force in the United State regarding extension of the principles of limitation shall apply to claims made under this Act before a Revenue Officer."It is clear form the language of Section 34 that in hearing an appeal under the Ryotwari Act the Board must guide itself by the provisions of the Limitation Act in force for extension and computation of the period of limitation. It would appear that Section 149(2) was aimed at giving a similar guideline to the Revenue Officer. To give the said interpretation to Section 149(2) it is necessary to read "extension of the principles of limitation" occurring therein as "extension of the period of limitation" for otherwise the section would be devoid of any meaning. The general principles of limitation are those contained in the Limitation Act of 1908 which were in force at the date when the appeal was filed before the board of Revenue. Section 3 of the Limitation Act, 1908, laid down that subject to the provisions contained in Sections 4 to 25 (inclusive), every suit instituted, appeal preferred, and application made, after the period of limitation prescribed therefor by the First Schedule was to be dismissed although limitation had not been set up as a defence. Under Section 5 of the Limitation Act of 1908 an appeal could be admitted after the period of limitation prescribed therefor when the appellant satisfied the court that he had sufficient cause for not preferring or making the application within such period. Under Section 29(2) of the Limitation Act :"Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of Section 3 shall apply, as if such period were prescribed therefor in that Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by the special or local law -(a) the provisions contained in Section 4, Sections 9 to 18 and Section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and(b) the remaining provisions of this Act shall not apply."These sections go to show that unless excluded by the Jagirs Act or Ryotwari Act, Section 12 of the Limitation Act would be applicable to appeals filed before the Board of Revenue under any of these Acts.7. It has been held by a Division Bench of the Madhya Pradesh High Court in Brijraj Singh v. The Board of Revenue and Another (Misc. Civil Case No. 22/1962, decided on 18-3-1963) that the expression "principles of limitation" in Section 149(2) mentioned above should be construed as extension of the period of limitation. For the reasons given above, we are in agreement with the said conclusion of the Madhya Pradesh High Court. In our view, the word principle therein was inserted due to inept or careless drafting and what was meant was "period" and not principles.8. Even if we were to read the Statute as it is, the principle of the Limitation Act is to dismiss a suit, appeal or application if filed beyond time but also to extend the time for filing an appeal if the delay is explained. That principle is clearly capable of extension in the present case.9. If Sections 34 and 149(2) were applicable to the facts of the case before the Board of Revenue and we hold to that effect, the time spent in obtaining a copy of the judgment forming the basis of giving the reasons of the decision should have been excluded in computing the period of 90 days under Section 29 of the Jagirs Act. The appellant was not guilty of any laches in his appeal to the Board of Revenue. He applied for a copy of the judgment of the Jagir Commissioner on the day next after communication to him of the order of the Jagir Commissioner. Even if the application was unaccompanied by any fees prescribed for the purpose, the Board of Revenue should have taken this fact into consideration before holding the appellants appeal to be out of time. If the application for the copy of the judgment made on the 24th February was in order, the appeal was in time. Even if the time taken in obtaining the copy of the judgment be reckoned from the 12th March to 18th March, 1958, the appellant was out by two days only in filing the appeal to the Board of Revenue. If the 1st of June 1958 which happened to be a Sunday be left out of consideration, the appellant was out by one day only.10. As appears for the order, dated September 28, 1961 the Board of Revenue refused to entertain the appeal on the ground of limitation without considering the question as to whether the appellant had made out a case for condonation of delay, if any. In our view, the Board of Revenue had not acted judicially in throwing out the appeal. The High Court was therefore not right in upholding the order of the Board of Revenue which ignored the provisions of Sections 34 and 149(2) of the Ryotwari Act and the relevant provisions of the Limitation Act. A sounder view of the law was taken by another Division Bench of the same High Court in Brijraj Singhs case noted above.
### Response:
1
### Explanation:
These sections go to show that unless excluded by the Jagirs Act or Ryotwari Act, Section 12 of the Limitation Act would be applicable to appeals filed before the Board of Revenue under any of these Acts.7. It has been held by a Division Bench of the Madhya Pradesh High Court in Brijraj Singh v. The Board of Revenue and Another (Misc. Civil Case No. 22/1962, decided on 18-3-1963) that the expression "principles of limitation" in Section 149(2) mentioned above should be construed as extension of the period of limitation. For the reasons given above, we are in agreement with the said conclusion of the Madhya Pradesh High Court. In our view, the word principle therein was inserted due to inept or careless drafting and what was meant was "period" and not principles.8. Even if we were to read the Statute as it is, the principle of the Limitation Act is to dismiss a suit, appeal or application if filed beyond time but also to extend the time for filing an appeal if the delay is explained. That principle is clearly capable of extension in the present case.Even if we were to read the Statute as it is, the principle of the Limitation Act is to dismiss a suit, appeal or application if filed beyond time but also to extend the time for filing an appeal if the delay is explained. That principle is clearly capable of extension in the present case.As appears for the order, dated September 28, 1961 the Board of Revenue refused to entertain the appeal on the ground of limitation without considering the question as to whether the appellant had made out a case for condonation of delay, if any. In our view, the Board of Revenue had not acted judicially in throwing out the appeal. The High Court was therefore not right in upholding the order of the Board of Revenue which ignored the provisions of Sections 34 and 149(2) of the Ryotwari Act and the relevant provisions of the Limitation Act. A sounder view of the law was taken by another Division Bench of the same High Court in Brijraj Singhs case noted above.If Sections 34 and 149(2) were applicable to the facts of the case before the Board of Revenue and we hold to that effect, the time spent in obtaining a copy of the judgment forming the basis of giving the reasons of the decision should have been excluded in computing the period of 90 days under Section 29 of the Jagirs Act. The appellant was not guilty of any laches in his appeal to the Board of Revenue. He applied for a copy of the judgment of the Jagir Commissioner on the day next after communication to him of the order of the Jagir Commissioner. Even if the application was unaccompanied by any fees prescribed for the purpose, the Board of Revenue should have taken this fact into consideration before holding the appellants appeal to be out of time. If the application for the copy of the judgment made on the 24th February was in order, the appeal was in time. Even if the time taken in obtaining the copy of the judgment be reckoned from the 12th March to 18th March, 1958, the appellant was out by two days only in filing the appeal to the Board of Revenue. If the 1st of June 1958 which happened to be a Sunday be left out of consideration, the appellant was out by one dayis clear form the language of Section 34 that in hearing an appeal under the Ryotwari Act the Board must guide itself by the provisions of the Limitation Act in force for extension and computation of the period of limitation. It would appear that Section 149(2) was aimed at giving a similar guideline to the Revenue Officer. To give the said interpretation to Section 149(2) it is necessary to read "extension of the principles of limitation" occurring therein as "extension of the period of limitation" for otherwise the section would be devoid of any meaning. The general principles of limitation are those contained in the Limitation Act of 1908 which were in force at the date when the appeal was filed before the board of Revenue. Section 3 of the Limitation Act, 1908, laid down that subject to the provisions contained in Sections 4 to 25 (inclusive), every suit instituted, appeal preferred, and application made, after the period of limitation prescribed therefor by the First Schedule was to be dismissed although limitation had not been set up as a defence. Under Section 5 of the Limitation Act of 1908 an appeal could be admitted after the period of limitation prescribed therefor when the appellant satisfied the court that he had sufficient cause for not preferring or making the application within such period. Under Section 29(2) of the Limitation Actany special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of Section 3 shall apply, as if such period were prescribed therefor in that Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by the special or local
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Employers In Relation To The Bhowra Colliery Vs. Their Workmen | 3. of the agreement of January 14, 1955. It may be that the Tribunal thought that the Bonus Scheme framed by the Central Government formed a condition of service of the malis or a facility to which they were entitled and which the appellants undertook by the agreement of January 14, 1955, to continue. If this was the point of view, then of course the further question still remains whether the malis were on domestic and personal work for if they were, then they would not be entitled to the bonus as a facility or a condition of their service under the Scheme. 4. It was however contended on behalf of the respondent workmen in this Court that the right to bonus was a condition of the service of the malis and a facility to which they were entitled independently of the Bonus Scheme and that this is what the Tribunal had held. The record however is not very clear on this question. The appellants dispute the contention of the workmen and further say that in any event the Tribunal had no jurisdiction to decide that question for the question referred to it was the right of the malis to bonus under the Bonus Scheme. 5. We think that the appellants contention is well founded. What had been referred was the question whether the withdrawal of the benefit of bonus Provided in the Coal Mines Bonus Scheme ...... is justified. On the language of the order of reference it seems to us that the dispute referred was as to the right as provided in the Bonus Scheme and not as to any other right. This also was the workmens case before the Tribunal as appears from its written statement filed there. In the statement of case filed in this appeal also, the respondent took the same position. We therefore think that if the Tribunal had held that the malis were entitled to the bonus under the agreement of January 14, 1955 independently of the Bonus Scheme it had exceeded its jurisdiction and its award cannot be upheld.The question still remains as to whether on a proper construction of paragraph 3 of the Bonus Scheme these malis had any right to bonus. That was undubitably the question referred to the Tribunal. The words requiring construction are on domestic and personal work. The Tribunal held that malis working in bungalows belonging to the appellants were not working for the home or household of private persons or individuals and were therefore not on domestic work. It also held that as the malis work under the direction and control of the appellants and were liable to be transferred from one bungalow to another or to some other work they were not on personal work. We are unable to accept this construction of paragraph 3 of the Bonus Scheme. Domestic means as of the home. We feel no doubt that the malis who were working in the bungalows occupied by the officers were working in the home of the officers. They were, therefore, on domestic work. The work they were doing would not cease to be domestic work because the bungalows belonged not to the officers but to the appellants. Whether a work is domestic or not would depend on its nature. Suppose an officer has employed his own mali for working in the bungalow garden, that mali would surely be on domestic work. This is not disputed. The nature of that work would not change because the the mali was working not under the orders of the officer occupying the bungalow but under the appellants, nor because the bungalow did not belong to the officer but to the appellants. Nor for the same reason does the fact that the malis were employed by the appellants and not by the officers make any differences The fact that Malis might be transferred to other jobs and cease to be malis altogether is also irrelevant. On such transfer they might become entitled to bonus. The exception in paragraph 3 deprives them of the bonus only for the time they are malis on domestic and personal work.Paragraph 3, of the Bonus Scheme contemplated malis who were employees of the colliery owners and were yet on domestic work. The Tribunal thought that paragraph 3 only contemplated cases of malis appointed by the officers who were paid some allowance by the colliery owners for keeping malis in the gardens of the bungalows occupied by them. It may be that malis to engaged would be the employees of the colliery owners, as the term employee is defined in the Act under which the Bonus Scheme was framed, but we see no reason to restrict malis on domestic work referred to in paragraph 3 to such malis only. As we have said earlier, whether a malis on domestic work or not would depend on the nature of the work. As the work which the malis with whom we are concerned did, was domestic work. these malis must be deemed to be within the exception mentioned in paragraph 3. They would not cease to be malis on domestic work because they had been working in the bungalows belonging to the appellants or were under their control and orders. 6. We further feel no difficulty in holding that these malis were on personal work. The word personal is obviously used in the sence of work for an individual as distinguished from work for the Coal mine as an institution. These malis were undoubtedly working for the officers as individuals. Therefore they were on personal work. 7. For these reasons in our view the malis in the present case were not entitled to any bonus under the Bonus Scheme. As in our opinion the order of reference does not raise any question as to whether the malis were entitled to bonus apart from the Bonus Scheme, it is unnecessary for us to express any opinion on that question and we do not do so. 8. | 1[ds]We think that the appellants contention is well founded. What had been referred was the question whether the withdrawal of the benefit of bonus Provided in the Coal Mines Bonus Scheme ...... is justified. On the language of the order of reference it seems to us that the dispute referred was as to the right as provided in the Bonus Scheme and not as to any other right. This also was the workmens case before the Tribunal as appears from its written statement filed there. In the statement of case filed in this appeal also, the respondent took the same position. We therefore think that if the Tribunal had held that the malis were entitled to the bonus under the agreement of January 14, 1955 independently of the Bonus Scheme it had exceeded its jurisdiction and its award cannot be upheld.The question still remains as to whether on a proper construction of paragraph 3 of the Bonus Scheme these malis had any right to bonus. That was undubitably the question referred to the Tribunal. The words requiring construction are on domestic and personal work. The Tribunal held that malis working in bungalows belonging to the appellants were not working for the home or household of private persons or individuals and were therefore not on domestic work. It also held that as the malis work under the direction and control of the appellants and were liable to be transferred from one bungalow to another or to some other work they were not on personal work. We are unable to accept this construction of paragraph 3 of the Bonus Scheme. Domestic means as of the home. We feel no doubt that the malis who were working in the bungalows occupied by the officers were working in the home of the officers. They were, therefore, on domestic work. The work they were doing would not cease to be domestic work because the bungalows belonged not to the officers but to the appellants. Whether a work is domestic or not would depend on its nature. Suppose an officer has employed his own mali for working in the bungalow garden, that mali would surely be on domestic work. This is not disputed. The nature of that work would not change because the the mali was working not under the orders of the officer occupying the bungalow but under the appellants, nor because the bungalow did not belong to the officer but to the appellants. Nor for the same reason does the fact that the malis were employed by the appellants and not by the officers make any differences The fact that Malis might be transferred to other jobs and cease to be malis altogether is also irrelevant. On such transfer they might become entitled to bonus. The exception in paragraph 3 deprives them of the bonus only for the time they are malis on domestic and personal work.Paragraph 3, of the Bonus Scheme contemplated malis who were employees of the colliery owners and were yet on domestic work. The Tribunal thought that paragraph 3 only contemplated cases of malis appointed by the officers who were paid some allowance by the colliery owners for keeping malis in the gardens of the bungalows occupied by them. It may be that malis to engaged would be the employees of the colliery owners, as the term employee is defined in the Act under which the Bonus Scheme was framed, but we see no reason to restrict malis on domestic work referred to in paragraph 3 to such malis only. As we have said earlier, whether a malis on domestic work or not would depend on the nature of the work. As the work which the malis with whom we are concerned did, was domestic work. these malis must be deemed to be within the exception mentioned in paragraph 3. They would not cease to be malis on domestic work because they had been working in the bungalows belonging to the appellants or were under their control and ordersWe further feel no difficulty in holding that these malis were on personal work. The word personal is obviously used in the sence of work for an individual as distinguished from work for the Coal mine as an institution. These malis were undoubtedly working for the officers as individuals. Therefore they were on personal workFor these reasons in our view the malis in the present case were not entitled to any bonus under the Bonus Scheme. As in our opinion the order of reference does not raise any question as to whether the malis were entitled to bonus apart from the Bonus Scheme, it is unnecessary for us to express any opinion on that question and we do not do so. | 1 | 1,990 | 838 | ### Instruction:
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3. of the agreement of January 14, 1955. It may be that the Tribunal thought that the Bonus Scheme framed by the Central Government formed a condition of service of the malis or a facility to which they were entitled and which the appellants undertook by the agreement of January 14, 1955, to continue. If this was the point of view, then of course the further question still remains whether the malis were on domestic and personal work for if they were, then they would not be entitled to the bonus as a facility or a condition of their service under the Scheme. 4. It was however contended on behalf of the respondent workmen in this Court that the right to bonus was a condition of the service of the malis and a facility to which they were entitled independently of the Bonus Scheme and that this is what the Tribunal had held. The record however is not very clear on this question. The appellants dispute the contention of the workmen and further say that in any event the Tribunal had no jurisdiction to decide that question for the question referred to it was the right of the malis to bonus under the Bonus Scheme. 5. We think that the appellants contention is well founded. What had been referred was the question whether the withdrawal of the benefit of bonus Provided in the Coal Mines Bonus Scheme ...... is justified. On the language of the order of reference it seems to us that the dispute referred was as to the right as provided in the Bonus Scheme and not as to any other right. This also was the workmens case before the Tribunal as appears from its written statement filed there. In the statement of case filed in this appeal also, the respondent took the same position. We therefore think that if the Tribunal had held that the malis were entitled to the bonus under the agreement of January 14, 1955 independently of the Bonus Scheme it had exceeded its jurisdiction and its award cannot be upheld.The question still remains as to whether on a proper construction of paragraph 3 of the Bonus Scheme these malis had any right to bonus. That was undubitably the question referred to the Tribunal. The words requiring construction are on domestic and personal work. The Tribunal held that malis working in bungalows belonging to the appellants were not working for the home or household of private persons or individuals and were therefore not on domestic work. It also held that as the malis work under the direction and control of the appellants and were liable to be transferred from one bungalow to another or to some other work they were not on personal work. We are unable to accept this construction of paragraph 3 of the Bonus Scheme. Domestic means as of the home. We feel no doubt that the malis who were working in the bungalows occupied by the officers were working in the home of the officers. They were, therefore, on domestic work. The work they were doing would not cease to be domestic work because the bungalows belonged not to the officers but to the appellants. Whether a work is domestic or not would depend on its nature. Suppose an officer has employed his own mali for working in the bungalow garden, that mali would surely be on domestic work. This is not disputed. The nature of that work would not change because the the mali was working not under the orders of the officer occupying the bungalow but under the appellants, nor because the bungalow did not belong to the officer but to the appellants. Nor for the same reason does the fact that the malis were employed by the appellants and not by the officers make any differences The fact that Malis might be transferred to other jobs and cease to be malis altogether is also irrelevant. On such transfer they might become entitled to bonus. The exception in paragraph 3 deprives them of the bonus only for the time they are malis on domestic and personal work.Paragraph 3, of the Bonus Scheme contemplated malis who were employees of the colliery owners and were yet on domestic work. The Tribunal thought that paragraph 3 only contemplated cases of malis appointed by the officers who were paid some allowance by the colliery owners for keeping malis in the gardens of the bungalows occupied by them. It may be that malis to engaged would be the employees of the colliery owners, as the term employee is defined in the Act under which the Bonus Scheme was framed, but we see no reason to restrict malis on domestic work referred to in paragraph 3 to such malis only. As we have said earlier, whether a malis on domestic work or not would depend on the nature of the work. As the work which the malis with whom we are concerned did, was domestic work. these malis must be deemed to be within the exception mentioned in paragraph 3. They would not cease to be malis on domestic work because they had been working in the bungalows belonging to the appellants or were under their control and orders. 6. We further feel no difficulty in holding that these malis were on personal work. The word personal is obviously used in the sence of work for an individual as distinguished from work for the Coal mine as an institution. These malis were undoubtedly working for the officers as individuals. Therefore they were on personal work. 7. For these reasons in our view the malis in the present case were not entitled to any bonus under the Bonus Scheme. As in our opinion the order of reference does not raise any question as to whether the malis were entitled to bonus apart from the Bonus Scheme, it is unnecessary for us to express any opinion on that question and we do not do so. 8.
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We think that the appellants contention is well founded. What had been referred was the question whether the withdrawal of the benefit of bonus Provided in the Coal Mines Bonus Scheme ...... is justified. On the language of the order of reference it seems to us that the dispute referred was as to the right as provided in the Bonus Scheme and not as to any other right. This also was the workmens case before the Tribunal as appears from its written statement filed there. In the statement of case filed in this appeal also, the respondent took the same position. We therefore think that if the Tribunal had held that the malis were entitled to the bonus under the agreement of January 14, 1955 independently of the Bonus Scheme it had exceeded its jurisdiction and its award cannot be upheld.The question still remains as to whether on a proper construction of paragraph 3 of the Bonus Scheme these malis had any right to bonus. That was undubitably the question referred to the Tribunal. The words requiring construction are on domestic and personal work. The Tribunal held that malis working in bungalows belonging to the appellants were not working for the home or household of private persons or individuals and were therefore not on domestic work. It also held that as the malis work under the direction and control of the appellants and were liable to be transferred from one bungalow to another or to some other work they were not on personal work. We are unable to accept this construction of paragraph 3 of the Bonus Scheme. Domestic means as of the home. We feel no doubt that the malis who were working in the bungalows occupied by the officers were working in the home of the officers. They were, therefore, on domestic work. The work they were doing would not cease to be domestic work because the bungalows belonged not to the officers but to the appellants. Whether a work is domestic or not would depend on its nature. Suppose an officer has employed his own mali for working in the bungalow garden, that mali would surely be on domestic work. This is not disputed. The nature of that work would not change because the the mali was working not under the orders of the officer occupying the bungalow but under the appellants, nor because the bungalow did not belong to the officer but to the appellants. Nor for the same reason does the fact that the malis were employed by the appellants and not by the officers make any differences The fact that Malis might be transferred to other jobs and cease to be malis altogether is also irrelevant. On such transfer they might become entitled to bonus. The exception in paragraph 3 deprives them of the bonus only for the time they are malis on domestic and personal work.Paragraph 3, of the Bonus Scheme contemplated malis who were employees of the colliery owners and were yet on domestic work. The Tribunal thought that paragraph 3 only contemplated cases of malis appointed by the officers who were paid some allowance by the colliery owners for keeping malis in the gardens of the bungalows occupied by them. It may be that malis to engaged would be the employees of the colliery owners, as the term employee is defined in the Act under which the Bonus Scheme was framed, but we see no reason to restrict malis on domestic work referred to in paragraph 3 to such malis only. As we have said earlier, whether a malis on domestic work or not would depend on the nature of the work. As the work which the malis with whom we are concerned did, was domestic work. these malis must be deemed to be within the exception mentioned in paragraph 3. They would not cease to be malis on domestic work because they had been working in the bungalows belonging to the appellants or were under their control and ordersWe further feel no difficulty in holding that these malis were on personal work. The word personal is obviously used in the sence of work for an individual as distinguished from work for the Coal mine as an institution. These malis were undoubtedly working for the officers as individuals. Therefore they were on personal workFor these reasons in our view the malis in the present case were not entitled to any bonus under the Bonus Scheme. As in our opinion the order of reference does not raise any question as to whether the malis were entitled to bonus apart from the Bonus Scheme, it is unnecessary for us to express any opinion on that question and we do not do so.
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The Commissioner of Income-Tax (International Taxation) Vs. Jsh (Mauritius) Limited | considers it improper. A holistic view has to be taken to adjudge which is perhaps regarded in contemporary thinking as a necessary evil in a developing economy."9. The Apex Court in the said Judgment further observed that Section 90 is specifically intended to enable and empower the Central Government to issue a notification for implementation of the Double Tax Avoidance Agreement. When that happens, the provisions of such an agreement with respect to cases to which they apply would operate even if inconsistent with the provisions of Income Tax Act. The Apex Court further observed that the Circulars issued by the CBDT under Section 119 of the Act are binding on all officers and employees employed in the execution of the Act, even if they deviate from the provisions of the Act. The Apex Court in the said Judgment observed that the whole purpose of DTAC is to ensure that the provisions thereunder are available even if they are inconsistent with the provisions of Indian Income Tax Act. The further observation is made by the Apex Court that the principle of piercing the veil of incorporation can hardly apply to a situation as the one before it. The Apex Court further made the following observations :"If the court finds that notwithstanding a series of legal steps taken by an assessee, the intended legal result has not been achieved, the court might be justified in overlooking the intermediate steps, but it would not be permissible for the court to treat the intervening legal steps as non est based upon some hypothetical assessment of the "real motive" of the assessee. In our view, the court must deal with what is tangible in an objective manner and cannot afford to chase a willo the wisp.""We are unable to agree with the submission that an act which is otherwise valid in law can be treated as non est merely on the basis of some underlying motive supposedly resulting in some economic detriment or prejudice to the national interests, as perceived by the respondents."10. In the present matter, it would be relevant to note that the shares were purchased by the Respondent in the year 1996 and were held for long period of 13 years and were sold in the year 2009. This goes to suggest the bona fide of the applicant. The said shares were again invested in the another company of the same group in India and the same are being held by the Respondent. Considering this aspect, it has been observed by the AAR that the Respondent is not a Fly By Night or a Shell Company. It does not appear that while considering the factual matrix of the matter, the AAR has perversely recorded any finding. It has based its finding on the basis of evidence on record. The said findings is a findings of fact arrived at on the basis of appreciation of evidence. With regard to the objection raised by the Petitioner under Section 245(R) (2)(iii) of the Act, the same would not arise at this stage. The said provision reads as under :"245R. Procedure on receipt of application.(1).......(2) The Authority may, after examining the application and the records called for, by order, either allow or reject the application: Provided that the Authority shall not allow the application where the question raised in the application,-(i) is already pending before any income-tax authority or Appellate Tribunal [except in the case of a resident applicant falling in sub-clause (iii) of clause (b) of section 245N] or any court;(ii)involves determination of fair market value of any property;(iii) relates to a transaction or issue which is designed prima facie for the avoidance of income tax [except in the case of a resident applicant falling in sub-clause (iii) of clause (b) of section 245N.Provided further that no application shall be rejected under this subsection unless an opportunity has been given to the applicant of being heard:Provided also that where the application is rejected, reasons for such rejection shall be given in the order.(3) A copy of every order made under subsection (2) shall be sent to the applicant and to the Commissioner."11. The said provision would come into operation when the application by the party relates to a transaction or an issue which is designed prima facie for the avoidance of income tax. On 14th day of September 2011, the AAR passed an Order stating that the issue with regard to the investment made by holding company would be considered while considering the application for ruling under Section 245(R) (4) of the Act. The said Order was never assailed by the Petitioner. The Petitioner thereafter submitted to the jurisdiction of the AAR and contested the matter on merits. The Ruling is given by the AAR. The AAR on considering the application and the documents and the facts on record had conclusively held that the transaction is not designed for avoidance of income-tax. Once such conclusive finding is given, it would not be open for the Petitioner to fall back on Section 245(R)(2)(iii).12. The reliance placed on Section 9(1)(i) and Explanation 5 thereto by the learned counsel for the Petitioner would not be of any avail to the Petitioner. In the present case, the Respondent has placed reliance on the Double Taxation Avoidance Agreement between India and Mauritius. It is clear from the said Agreement that the capital gains from alienation of the shares situated in India could only be taxed in Mauritius and not in India. The Apex Court in a case of Azadi Bachao Andolan & Anr.(supra) has clearly observed that the terms and provisions of the Agreement i.e. DTAA shall operate even if they are inconsistent with the provisions of the Income Tax Act. The Petitioner could have relied on Section 9(1)(i) and Explanation 5 if the present case would have not been covered by the DTAA.13. Though the question of limitation/delay/laches would not be inconsequential we refrain from going into said aspect as we have decided this Petition on merits itself. | 0[ds]7. The factual matrix that the Respondent is incorporated in Mauritius, holds a Category 1 Global Business License issued by Financial Services Authority of Mauritius and is incorporated on 04/04/1996, is not disputed. It is also not disputed that the Certificate is issued by the Mauritius Revenue Authority to the Respondent evidencing that it is a tax resident in Mauritius during the relevant period. The Respondent had acquired shares of Tata Industries Limited (TIL) in June 1996 is a matter of record. The Respondent sold shares of TIL on 10th July 2009 is also a matter of record.8. Section 90(2) of the Act specifically provides that where the Government of India had entered into Double Taxation Avoidance Conveyance (hereinafter referred to as "DTAC" for the sake of brevity) with the Government of any other country for granting relief of tax or any avoidance of double taxation, then in relation to the Assessee to whom said agreement applies, the provisions of Tax Treaty shall apply to the extent they are more beneficial to the Assessee. The Circular dated 30th October 1995 so also above referred Circulars of the year 2003 and 2013 clarifies the said aspect. The Apex Court in a case of Azadi Bachao AndolanAnr. (referred to supra) has observed as under :"There are many principles in fiscal economy which, though at first blush might appear to be evil, are tolerated in a developing economy, in the interest of long term development. Deficit financing, for example, is one; treaty shopping, in our view, is another. Despite the sound and fury of the respondents over the so called "abuse" of "treaty shopping", perhaps, it may have been intended at the time when theDTAC was entered into. Whether it should continue, and, if so, for how long, is a matter which is best left to the discretion of the executive as it is dependent upon several economic and political considerations. This court cannot judge the legality of treaty shopping merely because one section of thought considers it improper. A holistic view has to be taken to adjudge which is perhaps regarded in contemporary thinking as a necessary evil in a developing economy."9. The Apex Court in the said Judgment further observed that Section 90 is specifically intended to enable and empower the Central Government to issue a notification for implementation of the Double Tax Avoidance Agreement. When that happens, the provisions of such an agreement with respect to cases to which they apply would operate even if inconsistent with the provisions of Income Tax Act. The Apex Court further observed that the Circulars issued by the CBDT under Section 119 of the Act are binding on all officers and employees employed in the execution of the Act, even if they deviate from the provisions of the Act. The Apex Court in the said Judgment observed that the whole purpose of DTAC is to ensure that the provisions thereunder are available even if they are inconsistent with the provisions of Indian Income Tax Act. The further observation is made by the Apex Court that the principle of piercing the veil of incorporation can hardly apply to a situation as the one before it. The Apex Court further made the following observations :"If the court finds that notwithstanding a series of legal steps taken by an assessee, the intended legal result has not been achieved, the court might be justified in overlooking the intermediate steps, but it would not be permissible for the court to treat the intervening legal steps as non est based upon some hypothetical assessment of the "real motive" of the assessee. In our view, the court must deal with what is tangible in an objective manner and cannot afford to chase a willo the wisp.""We are unable to agree with the submission that an act which is otherwise valid in law can be treated as non est merely on the basis of some underlying motive supposedly resulting in some economic detriment or prejudice to the national interests, as perceived by the respondents."10. In the present matter, it would be relevant to note that the shares were purchased by the Respondent in the year 1996 and were held for long period of 13 years and were sold in the year 2009. This goes to suggest the bona fide of the applicant. The said shares were again invested in the another company of the same group in India and the same are being held by the Respondent. Considering this aspect, it has been observed by the AAR that the Respondent is not a Fly By Night or a Shell Company. It does not appear that while considering the factual matrix of the matter, the AAR has perversely recorded any finding. It has based its finding on the basis of evidence on record. The said findings is a findings of fact arrived at on the basis of appreciation of evidence. With regard to the objection raised by the Petitioner under Section 245(R) (2)(iii) of the Act, the same would not arise at this stage. The said provision reads as under :"245R. Procedure on receipt of application.(1).......(2) The Authority may, after examining the application and the records called for, by order, either allow or reject the application: Provided that the Authority shall not allow the application where the question raised in theis already pending before anyauthority or Appellate Tribunal [except in the case of a resident applicant falling in(iii) of clause (b) of section 245N] or any court;(ii)involves determination of fair market value of any property;(iii) relates to a transaction or issue which is designed prima facie for the avoidance of income tax [except in the case of a resident applicant falling in(iii) of clause (b) of section 245N.Provided further that no application shall be rejected under this subsection unless an opportunity has been given to the applicant of being heard:Provided also that where the application is rejected, reasons for such rejection shall be given in the order.(3) A copy of every order made under subsection (2) shall be sent to the applicant and to the Commissioner."11. The said provision would come into operation when the application by the party relates to a transaction or an issue which is designed prima facie for the avoidance of income tax. On 14th day of September 2011, the AAR passed an Order stating that the issue with regard to the investment made by holding company would be considered while considering the application for ruling under Section 245(R) (4) of the Act. The said Order was never assailed by the Petitioner. The Petitioner thereafter submitted to the jurisdiction of the AAR and contested the matter on merits. The Ruling is given by the AAR. The AAR on considering the application and the documents and the facts on record had conclusively held that the transaction is not designed for avoidance ofOnce such conclusive finding is given, it would not be open for the Petitioner to fall back on Section 245(R)(2)(iii).12. The reliance placed on Section 9(1)(i) and Explanation 5 thereto by the learned counsel for the Petitioner would not be of any avail to the Petitioner. In the present case, the Respondent has placed reliance on the Double Taxation Avoidance Agreement between India and Mauritius. It is clear from the said Agreement that the capital gains from alienation of the shares situated in India could only be taxed in Mauritius and not in India. The Apex Court in a case of Azadi Bachao AndolanAnr.(supra) has clearly observed that the terms and provisions of the Agreement i.e. DTAA shall operate even if they are inconsistent with the provisions of the Income Tax Act. The Petitioner could have relied on Section 9(1)(i) and Explanation 5 if the present case would have not been covered by the DTAA.13. Though the question of limitation/delay/laches would not be inconsequential we refrain from going into said aspect as we have decided this Petition on merits itself. | 0 | 3,800 | 1,517 | ### Instruction:
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considers it improper. A holistic view has to be taken to adjudge which is perhaps regarded in contemporary thinking as a necessary evil in a developing economy."9. The Apex Court in the said Judgment further observed that Section 90 is specifically intended to enable and empower the Central Government to issue a notification for implementation of the Double Tax Avoidance Agreement. When that happens, the provisions of such an agreement with respect to cases to which they apply would operate even if inconsistent with the provisions of Income Tax Act. The Apex Court further observed that the Circulars issued by the CBDT under Section 119 of the Act are binding on all officers and employees employed in the execution of the Act, even if they deviate from the provisions of the Act. The Apex Court in the said Judgment observed that the whole purpose of DTAC is to ensure that the provisions thereunder are available even if they are inconsistent with the provisions of Indian Income Tax Act. The further observation is made by the Apex Court that the principle of piercing the veil of incorporation can hardly apply to a situation as the one before it. The Apex Court further made the following observations :"If the court finds that notwithstanding a series of legal steps taken by an assessee, the intended legal result has not been achieved, the court might be justified in overlooking the intermediate steps, but it would not be permissible for the court to treat the intervening legal steps as non est based upon some hypothetical assessment of the "real motive" of the assessee. In our view, the court must deal with what is tangible in an objective manner and cannot afford to chase a willo the wisp.""We are unable to agree with the submission that an act which is otherwise valid in law can be treated as non est merely on the basis of some underlying motive supposedly resulting in some economic detriment or prejudice to the national interests, as perceived by the respondents."10. In the present matter, it would be relevant to note that the shares were purchased by the Respondent in the year 1996 and were held for long period of 13 years and were sold in the year 2009. This goes to suggest the bona fide of the applicant. The said shares were again invested in the another company of the same group in India and the same are being held by the Respondent. Considering this aspect, it has been observed by the AAR that the Respondent is not a Fly By Night or a Shell Company. It does not appear that while considering the factual matrix of the matter, the AAR has perversely recorded any finding. It has based its finding on the basis of evidence on record. The said findings is a findings of fact arrived at on the basis of appreciation of evidence. With regard to the objection raised by the Petitioner under Section 245(R) (2)(iii) of the Act, the same would not arise at this stage. The said provision reads as under :"245R. Procedure on receipt of application.(1).......(2) The Authority may, after examining the application and the records called for, by order, either allow or reject the application: Provided that the Authority shall not allow the application where the question raised in the application,-(i) is already pending before any income-tax authority or Appellate Tribunal [except in the case of a resident applicant falling in sub-clause (iii) of clause (b) of section 245N] or any court;(ii)involves determination of fair market value of any property;(iii) relates to a transaction or issue which is designed prima facie for the avoidance of income tax [except in the case of a resident applicant falling in sub-clause (iii) of clause (b) of section 245N.Provided further that no application shall be rejected under this subsection unless an opportunity has been given to the applicant of being heard:Provided also that where the application is rejected, reasons for such rejection shall be given in the order.(3) A copy of every order made under subsection (2) shall be sent to the applicant and to the Commissioner."11. The said provision would come into operation when the application by the party relates to a transaction or an issue which is designed prima facie for the avoidance of income tax. On 14th day of September 2011, the AAR passed an Order stating that the issue with regard to the investment made by holding company would be considered while considering the application for ruling under Section 245(R) (4) of the Act. The said Order was never assailed by the Petitioner. The Petitioner thereafter submitted to the jurisdiction of the AAR and contested the matter on merits. The Ruling is given by the AAR. The AAR on considering the application and the documents and the facts on record had conclusively held that the transaction is not designed for avoidance of income-tax. Once such conclusive finding is given, it would not be open for the Petitioner to fall back on Section 245(R)(2)(iii).12. The reliance placed on Section 9(1)(i) and Explanation 5 thereto by the learned counsel for the Petitioner would not be of any avail to the Petitioner. In the present case, the Respondent has placed reliance on the Double Taxation Avoidance Agreement between India and Mauritius. It is clear from the said Agreement that the capital gains from alienation of the shares situated in India could only be taxed in Mauritius and not in India. The Apex Court in a case of Azadi Bachao Andolan & Anr.(supra) has clearly observed that the terms and provisions of the Agreement i.e. DTAA shall operate even if they are inconsistent with the provisions of the Income Tax Act. The Petitioner could have relied on Section 9(1)(i) and Explanation 5 if the present case would have not been covered by the DTAA.13. Though the question of limitation/delay/laches would not be inconsequential we refrain from going into said aspect as we have decided this Petition on merits itself.
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judge the legality of treaty shopping merely because one section of thought considers it improper. A holistic view has to be taken to adjudge which is perhaps regarded in contemporary thinking as a necessary evil in a developing economy."9. The Apex Court in the said Judgment further observed that Section 90 is specifically intended to enable and empower the Central Government to issue a notification for implementation of the Double Tax Avoidance Agreement. When that happens, the provisions of such an agreement with respect to cases to which they apply would operate even if inconsistent with the provisions of Income Tax Act. The Apex Court further observed that the Circulars issued by the CBDT under Section 119 of the Act are binding on all officers and employees employed in the execution of the Act, even if they deviate from the provisions of the Act. The Apex Court in the said Judgment observed that the whole purpose of DTAC is to ensure that the provisions thereunder are available even if they are inconsistent with the provisions of Indian Income Tax Act. The further observation is made by the Apex Court that the principle of piercing the veil of incorporation can hardly apply to a situation as the one before it. The Apex Court further made the following observations :"If the court finds that notwithstanding a series of legal steps taken by an assessee, the intended legal result has not been achieved, the court might be justified in overlooking the intermediate steps, but it would not be permissible for the court to treat the intervening legal steps as non est based upon some hypothetical assessment of the "real motive" of the assessee. In our view, the court must deal with what is tangible in an objective manner and cannot afford to chase a willo the wisp.""We are unable to agree with the submission that an act which is otherwise valid in law can be treated as non est merely on the basis of some underlying motive supposedly resulting in some economic detriment or prejudice to the national interests, as perceived by the respondents."10. In the present matter, it would be relevant to note that the shares were purchased by the Respondent in the year 1996 and were held for long period of 13 years and were sold in the year 2009. This goes to suggest the bona fide of the applicant. The said shares were again invested in the another company of the same group in India and the same are being held by the Respondent. Considering this aspect, it has been observed by the AAR that the Respondent is not a Fly By Night or a Shell Company. It does not appear that while considering the factual matrix of the matter, the AAR has perversely recorded any finding. It has based its finding on the basis of evidence on record. The said findings is a findings of fact arrived at on the basis of appreciation of evidence. With regard to the objection raised by the Petitioner under Section 245(R) (2)(iii) of the Act, the same would not arise at this stage. The said provision reads as under :"245R. Procedure on receipt of application.(1).......(2) The Authority may, after examining the application and the records called for, by order, either allow or reject the application: Provided that the Authority shall not allow the application where the question raised in theis already pending before anyauthority or Appellate Tribunal [except in the case of a resident applicant falling in(iii) of clause (b) of section 245N] or any court;(ii)involves determination of fair market value of any property;(iii) relates to a transaction or issue which is designed prima facie for the avoidance of income tax [except in the case of a resident applicant falling in(iii) of clause (b) of section 245N.Provided further that no application shall be rejected under this subsection unless an opportunity has been given to the applicant of being heard:Provided also that where the application is rejected, reasons for such rejection shall be given in the order.(3) A copy of every order made under subsection (2) shall be sent to the applicant and to the Commissioner."11. The said provision would come into operation when the application by the party relates to a transaction or an issue which is designed prima facie for the avoidance of income tax. On 14th day of September 2011, the AAR passed an Order stating that the issue with regard to the investment made by holding company would be considered while considering the application for ruling under Section 245(R) (4) of the Act. The said Order was never assailed by the Petitioner. The Petitioner thereafter submitted to the jurisdiction of the AAR and contested the matter on merits. The Ruling is given by the AAR. The AAR on considering the application and the documents and the facts on record had conclusively held that the transaction is not designed for avoidance ofOnce such conclusive finding is given, it would not be open for the Petitioner to fall back on Section 245(R)(2)(iii).12. The reliance placed on Section 9(1)(i) and Explanation 5 thereto by the learned counsel for the Petitioner would not be of any avail to the Petitioner. In the present case, the Respondent has placed reliance on the Double Taxation Avoidance Agreement between India and Mauritius. It is clear from the said Agreement that the capital gains from alienation of the shares situated in India could only be taxed in Mauritius and not in India. The Apex Court in a case of Azadi Bachao AndolanAnr.(supra) has clearly observed that the terms and provisions of the Agreement i.e. DTAA shall operate even if they are inconsistent with the provisions of the Income Tax Act. The Petitioner could have relied on Section 9(1)(i) and Explanation 5 if the present case would have not been covered by the DTAA.13. Though the question of limitation/delay/laches would not be inconsequential we refrain from going into said aspect as we have decided this Petition on merits itself.
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M/S Park Street Properties (Pvt) Ltd Vs. Dipak Kumar Singh | of any the terms and conditions herein contained and on the part of the tenants to be performed and observed and the landlord shall be entitled to serve a notice on call upon the tenants to make payment of the rent and to remedy for the breach of any of the remaining terms and conditions herein contained and if within a period of 30 days, the Tenants shall fail to remedy the breach the landlord shall be entitled to determine or terminate the tenancy.? (emphasis laid by this Court) Thus, in terms of clause 6 of the agreement, the landlord was entitled to terminate the tenancy in case there was a breach of the terms of the agreement or in case of non-payment of rent for three consecutive months and the tenants failed to remedy the same within a period of thirty days of the receipt of the notice. The above said clause of the agreement is clearly contrary to the provisions of Section 106 of the Act. While Section 106 of the Act does contain the phrase ‘in the absence of a contract to the contrary?, it is a well settled position of law, as pointed out by the learned senior counsel appearing on behalf of the appellant that the same must be a valid contract. 11. It is also a well settled position of law that in the absence of a registered instrument, the courts are not precluded from determining the factum of tenancy from the other evidence on record as well as the conduct of the parties. A three Judge bench of this Court in the case of Anthony v. KC Ittoop & Sons (2000) 6 SCC 394 ), held as under: ?A lease of immovable property is defined in Section 105 of the TP Act. A transfer of a right to enjoy a property in consideration of a price paid or promised to be rendered periodically or on specified occasions is the basic fabric for a valid lease. The provision says that such a transfer can be made expressly or by implication. Once there is such a transfer of right to enjoy the property a lease stands created. What is mentioned in the three paragraphs of the first part of Section 107 of the TP Act are only the different modes of how leases are created. The first paragraph has been extracted above and it deals with the mode of creating the particular kinds of leases mentioned therein. The third paragraph can be read along with the above as it contains a condition to be complied with if the parties choose to create a lease as per a registered instrument mentioned therein. All other leases, if created, necessarily fall within the ambit of the second paragraph. Thus, dehors the instrument parties can create a lease as envisaged in the second paragraph of Section 107 which reads thus……… When lease is a transfer of a right to enjoy the property and such transfer can be made expressly or by implication, the mere fact that an unregistered instrument came into existence would not stand in the way of the court to determine whether there was in fact a lease otherwise than through such deed. ……………… Taking a different view would be contrary to the reality when parties clearly intended to create a lease though the document which they executed had not gone into the processes of registration. That lacuna had affected the validity of the document, but what had happened between the parties in respect of the property became a reality. Non registration of the document had caused onlytwo consequences. One is that no lease exceeding one year was created. Second is that the instrument became useless so far as creation of the lease is concerned. Nonetheless the presumption that a lease not exceeding one year stood created by conduct of parties remains un-rebutted.? (emphasis laid by this Court) Thus, in the absence of registration of a document, what is deemed to be created is a month to month tenancy, the termination of which is governed by Section 106 of the Act. 12. Thus, the question of remanding the matter back to the Trial Court to consider it afresh in view of the fact that the same has been admitted in evidence, as the High Court has done in the impugned judgment and order, does not arise at all. While the agreement dated 07.08.2006 can be admitted in evidence and even relied upon by the parties to prove the factum of the tenancy, the terms of the same cannot be used to derogate from the statutory provision of Section 106 of the Act, which creates a fiction of tenancy in absence of a registered instrument creating the same. If the argument advanced on behalf of the respondents is taken to its logical conclusion, this lease can never be terminated, save in cases of breach by the tenant. Accepting this argument would mean that in a situation where the tenant does not default on rent payment for three consecutive months, or does not commit a breach of the terms of the lease, it is not open to the lessor to terminate the lease even after giving a notice. This interpretation of the clause 6 of the agreement cannot be permitted as the same is wholly contrary to the express provisions of the law. The phrase ‘contract to the contrary? in Section 106 of the Act cannot be read to mean that the parties are free to contract out of the express provisions of the law, thereby defeating its very intent. As is evident from the cases relied upon by the learned senior counsel appearing on behalf of the appellant, the relevant portions of which have been extracted supra, the contract between the parties must be in relation to a valid contract for the statutory right under Section 106 of the Act available to a lessor to terminate the tenancy at a notice of 15 days to not be applicable. | 1[ds]9. A perusal of Section 106 of the Act makes it clear that it creates a deemed monthly tenancy in those cases where there is no express contract to the contrary, which is terminable at a notice period of 15 days. The section also lays down the requirements of a valid notice to terminate the tenancy, such as that it must be in writing, signed by the person sending it and be duly delivered. Admittedly, the validity of the notice itself is not under challenge. The main contention advanced on behalf of the respondents is that the impugned judgment and order is valid in light of the second part of Section 107 of the Act, which requires that lease for a term exceeding one year can only be made by way of a registered instrumentThus, in the absence of registration of a document, what is deemed to be created is a month to month tenancy, the termination of which is governed by Section 106 of the Act12. Thus, the question of remanding the matter back to the Trial Court to consider it afresh in view of the fact that the same has been admitted in evidence, as the High Court has done in the impugned judgment and order, does not arise at all. While the agreement dated 07.08.2006 can be admitted in evidence and even relied upon by the parties to prove the factum of the tenancy, the terms of the same cannot be used to derogate from the statutory provision of Section 106 of the Act, which creates a fiction of tenancy in absence of a registered instrument creating the same. If the argument advanced on behalf of the respondents is taken to its logical conclusion, this lease can never be terminated, save in cases of breach by the tenant. Accepting this argument would mean that in a situation where the tenant does not default on rent payment for three consecutive months, or does not commit a breach of the terms of the lease, it is not open to the lessor to terminate the lease even after giving a notice. This interpretation of the clause 6 of the agreement cannot be permitted as the same is wholly contrary to the express provisions of the law. The phrase ‘contract to the contrary? in Section 106 of the Act cannot be read to mean that the parties are free to contract out of the express provisions of the law, thereby defeating its very intent. As is evident from the cases relied upon by the learned senior counsel appearing on behalf of the appellant, the relevant portions of which have been extracted supra, the contract between the parties must be in relation to a valid contract for the statutory right under Section 106 of the Act available to a lessor to terminate the tenancy at a notice of 15 days to not be applicable. | 1 | 4,823 | 523 | ### Instruction:
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of any the terms and conditions herein contained and on the part of the tenants to be performed and observed and the landlord shall be entitled to serve a notice on call upon the tenants to make payment of the rent and to remedy for the breach of any of the remaining terms and conditions herein contained and if within a period of 30 days, the Tenants shall fail to remedy the breach the landlord shall be entitled to determine or terminate the tenancy.? (emphasis laid by this Court) Thus, in terms of clause 6 of the agreement, the landlord was entitled to terminate the tenancy in case there was a breach of the terms of the agreement or in case of non-payment of rent for three consecutive months and the tenants failed to remedy the same within a period of thirty days of the receipt of the notice. The above said clause of the agreement is clearly contrary to the provisions of Section 106 of the Act. While Section 106 of the Act does contain the phrase ‘in the absence of a contract to the contrary?, it is a well settled position of law, as pointed out by the learned senior counsel appearing on behalf of the appellant that the same must be a valid contract. 11. It is also a well settled position of law that in the absence of a registered instrument, the courts are not precluded from determining the factum of tenancy from the other evidence on record as well as the conduct of the parties. A three Judge bench of this Court in the case of Anthony v. KC Ittoop & Sons (2000) 6 SCC 394 ), held as under: ?A lease of immovable property is defined in Section 105 of the TP Act. A transfer of a right to enjoy a property in consideration of a price paid or promised to be rendered periodically or on specified occasions is the basic fabric for a valid lease. The provision says that such a transfer can be made expressly or by implication. Once there is such a transfer of right to enjoy the property a lease stands created. What is mentioned in the three paragraphs of the first part of Section 107 of the TP Act are only the different modes of how leases are created. The first paragraph has been extracted above and it deals with the mode of creating the particular kinds of leases mentioned therein. The third paragraph can be read along with the above as it contains a condition to be complied with if the parties choose to create a lease as per a registered instrument mentioned therein. All other leases, if created, necessarily fall within the ambit of the second paragraph. Thus, dehors the instrument parties can create a lease as envisaged in the second paragraph of Section 107 which reads thus……… When lease is a transfer of a right to enjoy the property and such transfer can be made expressly or by implication, the mere fact that an unregistered instrument came into existence would not stand in the way of the court to determine whether there was in fact a lease otherwise than through such deed. ……………… Taking a different view would be contrary to the reality when parties clearly intended to create a lease though the document which they executed had not gone into the processes of registration. That lacuna had affected the validity of the document, but what had happened between the parties in respect of the property became a reality. Non registration of the document had caused onlytwo consequences. One is that no lease exceeding one year was created. Second is that the instrument became useless so far as creation of the lease is concerned. Nonetheless the presumption that a lease not exceeding one year stood created by conduct of parties remains un-rebutted.? (emphasis laid by this Court) Thus, in the absence of registration of a document, what is deemed to be created is a month to month tenancy, the termination of which is governed by Section 106 of the Act. 12. Thus, the question of remanding the matter back to the Trial Court to consider it afresh in view of the fact that the same has been admitted in evidence, as the High Court has done in the impugned judgment and order, does not arise at all. While the agreement dated 07.08.2006 can be admitted in evidence and even relied upon by the parties to prove the factum of the tenancy, the terms of the same cannot be used to derogate from the statutory provision of Section 106 of the Act, which creates a fiction of tenancy in absence of a registered instrument creating the same. If the argument advanced on behalf of the respondents is taken to its logical conclusion, this lease can never be terminated, save in cases of breach by the tenant. Accepting this argument would mean that in a situation where the tenant does not default on rent payment for three consecutive months, or does not commit a breach of the terms of the lease, it is not open to the lessor to terminate the lease even after giving a notice. This interpretation of the clause 6 of the agreement cannot be permitted as the same is wholly contrary to the express provisions of the law. The phrase ‘contract to the contrary? in Section 106 of the Act cannot be read to mean that the parties are free to contract out of the express provisions of the law, thereby defeating its very intent. As is evident from the cases relied upon by the learned senior counsel appearing on behalf of the appellant, the relevant portions of which have been extracted supra, the contract between the parties must be in relation to a valid contract for the statutory right under Section 106 of the Act available to a lessor to terminate the tenancy at a notice of 15 days to not be applicable.
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9. A perusal of Section 106 of the Act makes it clear that it creates a deemed monthly tenancy in those cases where there is no express contract to the contrary, which is terminable at a notice period of 15 days. The section also lays down the requirements of a valid notice to terminate the tenancy, such as that it must be in writing, signed by the person sending it and be duly delivered. Admittedly, the validity of the notice itself is not under challenge. The main contention advanced on behalf of the respondents is that the impugned judgment and order is valid in light of the second part of Section 107 of the Act, which requires that lease for a term exceeding one year can only be made by way of a registered instrumentThus, in the absence of registration of a document, what is deemed to be created is a month to month tenancy, the termination of which is governed by Section 106 of the Act12. Thus, the question of remanding the matter back to the Trial Court to consider it afresh in view of the fact that the same has been admitted in evidence, as the High Court has done in the impugned judgment and order, does not arise at all. While the agreement dated 07.08.2006 can be admitted in evidence and even relied upon by the parties to prove the factum of the tenancy, the terms of the same cannot be used to derogate from the statutory provision of Section 106 of the Act, which creates a fiction of tenancy in absence of a registered instrument creating the same. If the argument advanced on behalf of the respondents is taken to its logical conclusion, this lease can never be terminated, save in cases of breach by the tenant. Accepting this argument would mean that in a situation where the tenant does not default on rent payment for three consecutive months, or does not commit a breach of the terms of the lease, it is not open to the lessor to terminate the lease even after giving a notice. This interpretation of the clause 6 of the agreement cannot be permitted as the same is wholly contrary to the express provisions of the law. The phrase ‘contract to the contrary? in Section 106 of the Act cannot be read to mean that the parties are free to contract out of the express provisions of the law, thereby defeating its very intent. As is evident from the cases relied upon by the learned senior counsel appearing on behalf of the appellant, the relevant portions of which have been extracted supra, the contract between the parties must be in relation to a valid contract for the statutory right under Section 106 of the Act available to a lessor to terminate the tenancy at a notice of 15 days to not be applicable.
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Jet Ply Wood Private Ltd. Vs. Madhukar Nowlakha | to allow the Respondent No. 1s application for restoration of the suit. Mr. Rohtagi submitted that the order of the Learned Single Judge of the Calcutta High Court impugned in these appeals was erroneous and was liable to be set aside. Mr. Abhishek Manu Singhvi, learned senior counsel, who appeared for the Respondent No. 1 in the first two appeals on the other hand urged that pursuant to the agreement arrived at between Shri Nowlakha and the owners of the property, Shri Nowlakha had taken steps to get the property vacated and made ready for construction. However, on the assurance given by the owners of the property, the respondent No. 1 had agreed to withdraw his suit which fact will be reflected from the application filed by him before the Learned Civil Judge (Senior Division) 9th Court at Alipore for withdrawal of the suit. Mr. Singhvi urged that the owners of the property had resorted to subterfuge to wriggle out of the agreement and had misled the Respondent No.1 into withdrawing the suit and it is on account of such misrepresentation that the Respondent No. 1 was entitled in law to have his suit restored. Mr. Singhvi submitted that it would not be correct to contend that the Learned Trial Judge did not have the jurisdiction to withdraw the order passed by him permitting the respondent No.1 to withdraw his suit. 6. What was relevant was whether in the circumstances such a power should have been exercised or not. Since the learned Trial Judge had chosen not to exercise such power, the High Court stepped in, in exercise of its powers under Article 227 of the Constitution to restore the suit filed by the Respondent No.1. Mr. Singhvi urged that while dismissing the application filed by Shri Biswarup Banerjee and others recalling the order dated 4th February, 2005, the learned Single Judge of the Calcutta High Court in his order dated 11th March, 2005, had referred to and relied upon a Division Bench judgment of the Calcutta High Court in the case of Rameswar Sarkar Vs. State of West Bengal & Ors. reported in AIR 1986 Calcutta 19, in support of his order that when through mistake a plaintiff withdraws his suit, the court is not powerless to set aside such order of dismissal in exercise of inherent powers even if no leave to file a fresh suit had been prayed for. Mr. Singhvi urged that the order passed by the learned Single Judge of the Calcutta High Court and impugned in these appeals did not call for any interference by this Court. Mr. Soli J. Sorabjee, learned senior counsel for the Respondent No.1 in the second set of appeals while adopting Mr. Singhvis submission, added that since the Learned Single Judge of the Calcutta High Court had acted within his jurisdiction to do justice between the parties, the same did not warrant any interference by this Court. Mr. Sorabjee submitted that this was not a case of the Court having acted without jurisdiction but having acted in the exercise of its inherent powers to do justice between the parties. As indicated hereinbefore, the only point which falls for our consideration in these appeals is whether the Trial Court was entitled in law to recall the order by which it had allowed the plaintiff to withdraw his suit. From the order of the Learned Civil Judge (Senior Division) 9th Court at Alipore, it is clear that he had no intention of granting any leave for filing of a fresh suit on the same cause of action while allowing the plaintiff to withdraw his suit. That does not, however, mean that by passing such an order the learned court divested itself of its inherent power to recall its said order, which fact is also evident from the order itself which indicates that the Court did not find any scope to exercise its inherent powers under Section 151 of the Code of Civil Procedure for recalling the order passed by it earlier. In the circumstances set out in the order of 24th September, 2004, the learned trial court felt that no case had been made out to recall the order which had been made at the instance of the plaintiff himself. It was, therefore, not a question of lack of jurisdiction but the conscious decision of the Court not to exercise such jurisdiction in favour of the plaintiff. The aforesaid position was reiterated by the learned Single Judge of the High Court in his order dated 4th February, 2005, though the language used by him is not entirely convincing. However, the position was clarified by the learned Judge in his subsequent order dated 14th March, 2005, in which reference has been made to a bench decision of the Calcutta High Court in the case of Rameswar Sarkar (supra) which, in our view, correctly explains the law with regard to the inherent powers of the Court to do justice between the parties. 7. There is no doubt in our minds that in the absence of a specific provision in the Code of Civil Procedure providing for the filing of an application for recalling of an order permitting withdrawal of a suit, the provisions of Section 151 of the Civil Procedure Code can be resorted to in the interest of justice. The principle is well established that when the Code of Civil Procedure is silent regarding a procedural aspect, the inherent power of the court can come to its aid to act ex debito justitiae for doing real and substantial justice between the parties. This Court had occasion to observe in the case of Manohar Lal Chopra vs. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527 , as follows: "It is well settled that the provisions of the Code are not exhaustive, for the simple reason that the Legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them." 8. | 1[ds]From the order of the Learned Civil Judge (Senior Division) 9th Court at Alipore, it is clear that he had no intention of granting any leave for filing of a fresh suit on the same cause of action while allowing the plaintiff to withdraw his suit. That does not, however, mean that by passing such an order the learned court divested itself of its inherent power to recall its said order, which fact is also evident from the order itself which indicates that the Court did not find any scope to exercise its inherent powers under Section 151 of the Code of Civil Procedure for recalling the order passed by it earlier. In the circumstances set out in the order of 24th September, 2004, the learned trial court felt that no case had been made out to recall the order which had been made at the instance of the plaintiff himself. It was, therefore, not a question of lack of jurisdiction but the conscious decision of the Court not to exercise such jurisdiction in favour of the plaintiff. The aforesaid position was reiterated by the learned Single Judge of the High Court in his order dated 4th February, 2005, though the language used by him is not entirely convincing. However, the position was clarified by the learned Judge in his subsequent order dated 14th March, 2005, in which reference has been made to a bench decision of the Calcutta High Court in the case of Rameswar Sarkar (supra) which, in our view, correctly explains the law with regard to the inherent powers of the Court to do justice between theis no doubt in our minds that in the absence of a specific provision in the Code of Civil Procedure providing for the filing of an application for recalling of an order permitting withdrawal of a suit, the provisions of Section 151 of the Civil Procedure Code can be resorted to in the interest of justice. The principle is well established that when the Code of Civil Procedure is silent regarding a procedural aspect, the inherent power of the court can come to its aid to act ex debito justitiae for doing real and substantial justice between the parties. This Court had occasion to observe in the case of Manohar Lal Chopra vs. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527 , asis well settled that the provisions of the Code are not exhaustive, for the simple reason that the Legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them." | 1 | 2,283 | 470 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
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to allow the Respondent No. 1s application for restoration of the suit. Mr. Rohtagi submitted that the order of the Learned Single Judge of the Calcutta High Court impugned in these appeals was erroneous and was liable to be set aside. Mr. Abhishek Manu Singhvi, learned senior counsel, who appeared for the Respondent No. 1 in the first two appeals on the other hand urged that pursuant to the agreement arrived at between Shri Nowlakha and the owners of the property, Shri Nowlakha had taken steps to get the property vacated and made ready for construction. However, on the assurance given by the owners of the property, the respondent No. 1 had agreed to withdraw his suit which fact will be reflected from the application filed by him before the Learned Civil Judge (Senior Division) 9th Court at Alipore for withdrawal of the suit. Mr. Singhvi urged that the owners of the property had resorted to subterfuge to wriggle out of the agreement and had misled the Respondent No.1 into withdrawing the suit and it is on account of such misrepresentation that the Respondent No. 1 was entitled in law to have his suit restored. Mr. Singhvi submitted that it would not be correct to contend that the Learned Trial Judge did not have the jurisdiction to withdraw the order passed by him permitting the respondent No.1 to withdraw his suit. 6. What was relevant was whether in the circumstances such a power should have been exercised or not. Since the learned Trial Judge had chosen not to exercise such power, the High Court stepped in, in exercise of its powers under Article 227 of the Constitution to restore the suit filed by the Respondent No.1. Mr. Singhvi urged that while dismissing the application filed by Shri Biswarup Banerjee and others recalling the order dated 4th February, 2005, the learned Single Judge of the Calcutta High Court in his order dated 11th March, 2005, had referred to and relied upon a Division Bench judgment of the Calcutta High Court in the case of Rameswar Sarkar Vs. State of West Bengal & Ors. reported in AIR 1986 Calcutta 19, in support of his order that when through mistake a plaintiff withdraws his suit, the court is not powerless to set aside such order of dismissal in exercise of inherent powers even if no leave to file a fresh suit had been prayed for. Mr. Singhvi urged that the order passed by the learned Single Judge of the Calcutta High Court and impugned in these appeals did not call for any interference by this Court. Mr. Soli J. Sorabjee, learned senior counsel for the Respondent No.1 in the second set of appeals while adopting Mr. Singhvis submission, added that since the Learned Single Judge of the Calcutta High Court had acted within his jurisdiction to do justice between the parties, the same did not warrant any interference by this Court. Mr. Sorabjee submitted that this was not a case of the Court having acted without jurisdiction but having acted in the exercise of its inherent powers to do justice between the parties. As indicated hereinbefore, the only point which falls for our consideration in these appeals is whether the Trial Court was entitled in law to recall the order by which it had allowed the plaintiff to withdraw his suit. From the order of the Learned Civil Judge (Senior Division) 9th Court at Alipore, it is clear that he had no intention of granting any leave for filing of a fresh suit on the same cause of action while allowing the plaintiff to withdraw his suit. That does not, however, mean that by passing such an order the learned court divested itself of its inherent power to recall its said order, which fact is also evident from the order itself which indicates that the Court did not find any scope to exercise its inherent powers under Section 151 of the Code of Civil Procedure for recalling the order passed by it earlier. In the circumstances set out in the order of 24th September, 2004, the learned trial court felt that no case had been made out to recall the order which had been made at the instance of the plaintiff himself. It was, therefore, not a question of lack of jurisdiction but the conscious decision of the Court not to exercise such jurisdiction in favour of the plaintiff. The aforesaid position was reiterated by the learned Single Judge of the High Court in his order dated 4th February, 2005, though the language used by him is not entirely convincing. However, the position was clarified by the learned Judge in his subsequent order dated 14th March, 2005, in which reference has been made to a bench decision of the Calcutta High Court in the case of Rameswar Sarkar (supra) which, in our view, correctly explains the law with regard to the inherent powers of the Court to do justice between the parties. 7. There is no doubt in our minds that in the absence of a specific provision in the Code of Civil Procedure providing for the filing of an application for recalling of an order permitting withdrawal of a suit, the provisions of Section 151 of the Civil Procedure Code can be resorted to in the interest of justice. The principle is well established that when the Code of Civil Procedure is silent regarding a procedural aspect, the inherent power of the court can come to its aid to act ex debito justitiae for doing real and substantial justice between the parties. This Court had occasion to observe in the case of Manohar Lal Chopra vs. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527 , as follows: "It is well settled that the provisions of the Code are not exhaustive, for the simple reason that the Legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them." 8.
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1
### Explanation:
From the order of the Learned Civil Judge (Senior Division) 9th Court at Alipore, it is clear that he had no intention of granting any leave for filing of a fresh suit on the same cause of action while allowing the plaintiff to withdraw his suit. That does not, however, mean that by passing such an order the learned court divested itself of its inherent power to recall its said order, which fact is also evident from the order itself which indicates that the Court did not find any scope to exercise its inherent powers under Section 151 of the Code of Civil Procedure for recalling the order passed by it earlier. In the circumstances set out in the order of 24th September, 2004, the learned trial court felt that no case had been made out to recall the order which had been made at the instance of the plaintiff himself. It was, therefore, not a question of lack of jurisdiction but the conscious decision of the Court not to exercise such jurisdiction in favour of the plaintiff. The aforesaid position was reiterated by the learned Single Judge of the High Court in his order dated 4th February, 2005, though the language used by him is not entirely convincing. However, the position was clarified by the learned Judge in his subsequent order dated 14th March, 2005, in which reference has been made to a bench decision of the Calcutta High Court in the case of Rameswar Sarkar (supra) which, in our view, correctly explains the law with regard to the inherent powers of the Court to do justice between theis no doubt in our minds that in the absence of a specific provision in the Code of Civil Procedure providing for the filing of an application for recalling of an order permitting withdrawal of a suit, the provisions of Section 151 of the Civil Procedure Code can be resorted to in the interest of justice. The principle is well established that when the Code of Civil Procedure is silent regarding a procedural aspect, the inherent power of the court can come to its aid to act ex debito justitiae for doing real and substantial justice between the parties. This Court had occasion to observe in the case of Manohar Lal Chopra vs. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527 , asis well settled that the provisions of the Code are not exhaustive, for the simple reason that the Legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them."
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Lalit Kumar Sharma Vs. State Of U.P. | Rajeev Sharma, learned counsel appearing on behalf of the appellants, urged that the second complaint petition is not maintainable. 10. Mr. Brij Bhusan, learned counsel appearing on behalf of the respondents, however, supported the impugned judgment. 11. Section 138 of the Act reads, thus: 138 - Dishonour of cheque for insufficiency, etc., of funds in the account Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless-- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.-- For the purposes of this section, debt or other liability means a legally enforceable debt or other liability. 12. It is not disputed that in respect of the first cheques dated 30.11.1999 and 10.12.1999, the appellants herein were not proceeded against. It is furthermore not in dispute that although a purported compromise was entered into by and between Ashish Narula, Manish Arora, on the one hand, and the complainant, on the other, as a result whereof the said cheque for a sum of Rs. 5,02,050/- was issued and bounced; the complaint petition had not been withdrawn. By a judgment and order 16.01.2006, Ashish Narula and Manish Arora had been found guilty for commission of the offence under Section 138 of the Act. They were sentenced to undergo one years R.I. with fine of Rs. 20,000/- each and in default thereof to undergo three months simple imprisonment. They were also directed to make payment of rupees nine lakhs as compensation to the complainant within a period of one month of the orders under Section 357 of the Code of Criminal Procedure. 13. The fact that Manish Arora issued the second cheque in terms of the settlement between the parties is not in dispute. It appears from the complaint petition itself, the requisite averments made therefor were as under: 5. That after getting their bail from the court the accused No. 2 to 6 approached and requested the complainant to take fresh cheques for full amount and withdraw the complaint and also felt sorry for the said dishonour of the cheque. 14. The learned Judicial Magistrate also in his order dated 1.10.2002 noticed: It has been stated on behalf of the accused persons that by settlement it was found that the party involved in the dealing would be responsible. Thus, prayer has been made on behalf of the accused persons that the aforementioned all the three accused persons may be discharged from this case. The aforesaid contentions have been opposed on behalf of the complainant and it has been stated that all these three persons were party in the whole dealing and their liability is just like other accused persons. It is clear from the perusal of the complaint that total 6 accused persons have been made parties in this matter by the complainant and in her statement U/s 200 of Cr.P.C., complainant has clearly stated that Manish Arora, Ashish Narula and L.K. Sharma and Bela Narula and wife of L.K. Sharma were directors of the company. All the five accused persons demanded loan of Rs. Five Lakh Two Hundred Fifty from the complainant for sometime and promised her to return the said money soon. All the five persons have been equally involved in the dealing of giving and receiving the cheque. 15. Evidently, therefore, the second cheque was issued in terms of the compromise. It did not create a new liability. As the compromise did not fructify, the same cannot be said to have been issued towards payment of debt. 16. Ingredients of Section 138 of the Act are as under: (i) that there is a legally enforceable debt; (ii) that the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which presupposes a legally enforceable debt; and (iii) that the cheque so issued had been returned due to insufficiency of funds. 17. Thus, the second cheque was issued by Manish Arora for the purpose of arriving at a settlement. The said cheque was not issued in discharge of the debt or liability of the Company of which the appellants were said to be the directors. There was only one transaction between Shri Ashish Narula, Shri Manish Arora, Directors of the Company and the complainant. They have already been punished. Thus, the question of entertaining the second complaint did not arise. It was, in our opinion, wholly misconceived. | 1[ds]13. The fact that Manish Arora issued the second cheque in terms of the settlement between the parties is not in dispute. It appears from the complaint petition itself, the requisite averments made therefor were as under:5. That after getting their bail from the court the accused No. 2 to 6 approached and requested the complainant to take fresh cheques for full amount and withdraw the complaint and also felt sorry for the said dishonour of the cheque14. The learned Judicial Magistrate also in his order dated 1.10.2002 noticed:It has been stated on behalf of the accused persons that by settlement it was found that the party involved in the dealing would be responsible. Thus, prayer has been made on behalf of the accused persons that the aforementioned all the three accused persons may be discharged from this case. The aforesaid contentions have been opposed on behalf of the complainant and it has been stated that all these three persons were party in the whole dealing and their liability is just like other accused persons. It is clear from the perusal of the complaint that total 6 accused persons have been made parties in this matter by the complainant and in her statement U/s 200 of Cr.P.C., complainant has clearly stated that Manish Arora, Ashish Narula and L.K. Sharma and Bela Narula and wife of L.K. Sharma were directors of the company. All the five accused persons demanded loan of Rs. Five Lakh Two Hundred Fifty from the complainant for sometime and promised her to return the said money soon. All the five persons have been equally involved in the dealing of giving and receiving the cheque15. Evidently, therefore, the second cheque was issued in terms of the compromise. It did not create a new liability. As the compromise did not fructify, the same cannot be said to have been issued towards payment of debt17. Thus, the second cheque was issued by Manish Arora for the purpose of arriving at a settlement. The said cheque was not issued in discharge of the debt or liability of the Company of which the appellants were said to be the directors. There was only one transaction between Shri Ashish Narula, Shri Manish Arora, Directors of the Company and the complainant. They have already been punished. Thus, the question of entertaining the second complaint did not arise. It was, in our opinion, wholly misconceived | 1 | 1,608 | 442 | ### 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:
Rajeev Sharma, learned counsel appearing on behalf of the appellants, urged that the second complaint petition is not maintainable. 10. Mr. Brij Bhusan, learned counsel appearing on behalf of the respondents, however, supported the impugned judgment. 11. Section 138 of the Act reads, thus: 138 - Dishonour of cheque for insufficiency, etc., of funds in the account Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless-- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.-- For the purposes of this section, debt or other liability means a legally enforceable debt or other liability. 12. It is not disputed that in respect of the first cheques dated 30.11.1999 and 10.12.1999, the appellants herein were not proceeded against. It is furthermore not in dispute that although a purported compromise was entered into by and between Ashish Narula, Manish Arora, on the one hand, and the complainant, on the other, as a result whereof the said cheque for a sum of Rs. 5,02,050/- was issued and bounced; the complaint petition had not been withdrawn. By a judgment and order 16.01.2006, Ashish Narula and Manish Arora had been found guilty for commission of the offence under Section 138 of the Act. They were sentenced to undergo one years R.I. with fine of Rs. 20,000/- each and in default thereof to undergo three months simple imprisonment. They were also directed to make payment of rupees nine lakhs as compensation to the complainant within a period of one month of the orders under Section 357 of the Code of Criminal Procedure. 13. The fact that Manish Arora issued the second cheque in terms of the settlement between the parties is not in dispute. It appears from the complaint petition itself, the requisite averments made therefor were as under: 5. That after getting their bail from the court the accused No. 2 to 6 approached and requested the complainant to take fresh cheques for full amount and withdraw the complaint and also felt sorry for the said dishonour of the cheque. 14. The learned Judicial Magistrate also in his order dated 1.10.2002 noticed: It has been stated on behalf of the accused persons that by settlement it was found that the party involved in the dealing would be responsible. Thus, prayer has been made on behalf of the accused persons that the aforementioned all the three accused persons may be discharged from this case. The aforesaid contentions have been opposed on behalf of the complainant and it has been stated that all these three persons were party in the whole dealing and their liability is just like other accused persons. It is clear from the perusal of the complaint that total 6 accused persons have been made parties in this matter by the complainant and in her statement U/s 200 of Cr.P.C., complainant has clearly stated that Manish Arora, Ashish Narula and L.K. Sharma and Bela Narula and wife of L.K. Sharma were directors of the company. All the five accused persons demanded loan of Rs. Five Lakh Two Hundred Fifty from the complainant for sometime and promised her to return the said money soon. All the five persons have been equally involved in the dealing of giving and receiving the cheque. 15. Evidently, therefore, the second cheque was issued in terms of the compromise. It did not create a new liability. As the compromise did not fructify, the same cannot be said to have been issued towards payment of debt. 16. Ingredients of Section 138 of the Act are as under: (i) that there is a legally enforceable debt; (ii) that the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which presupposes a legally enforceable debt; and (iii) that the cheque so issued had been returned due to insufficiency of funds. 17. Thus, the second cheque was issued by Manish Arora for the purpose of arriving at a settlement. The said cheque was not issued in discharge of the debt or liability of the Company of which the appellants were said to be the directors. There was only one transaction between Shri Ashish Narula, Shri Manish Arora, Directors of the Company and the complainant. They have already been punished. Thus, the question of entertaining the second complaint did not arise. It was, in our opinion, wholly misconceived.
### Response:
1
### Explanation:
13. The fact that Manish Arora issued the second cheque in terms of the settlement between the parties is not in dispute. It appears from the complaint petition itself, the requisite averments made therefor were as under:5. That after getting their bail from the court the accused No. 2 to 6 approached and requested the complainant to take fresh cheques for full amount and withdraw the complaint and also felt sorry for the said dishonour of the cheque14. The learned Judicial Magistrate also in his order dated 1.10.2002 noticed:It has been stated on behalf of the accused persons that by settlement it was found that the party involved in the dealing would be responsible. Thus, prayer has been made on behalf of the accused persons that the aforementioned all the three accused persons may be discharged from this case. The aforesaid contentions have been opposed on behalf of the complainant and it has been stated that all these three persons were party in the whole dealing and their liability is just like other accused persons. It is clear from the perusal of the complaint that total 6 accused persons have been made parties in this matter by the complainant and in her statement U/s 200 of Cr.P.C., complainant has clearly stated that Manish Arora, Ashish Narula and L.K. Sharma and Bela Narula and wife of L.K. Sharma were directors of the company. All the five accused persons demanded loan of Rs. Five Lakh Two Hundred Fifty from the complainant for sometime and promised her to return the said money soon. All the five persons have been equally involved in the dealing of giving and receiving the cheque15. Evidently, therefore, the second cheque was issued in terms of the compromise. It did not create a new liability. As the compromise did not fructify, the same cannot be said to have been issued towards payment of debt17. Thus, the second cheque was issued by Manish Arora for the purpose of arriving at a settlement. The said cheque was not issued in discharge of the debt or liability of the Company of which the appellants were said to be the directors. There was only one transaction between Shri Ashish Narula, Shri Manish Arora, Directors of the Company and the complainant. They have already been punished. Thus, the question of entertaining the second complaint did not arise. It was, in our opinion, wholly misconceived
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Centron Industrial Alliance Limited Vs. Gillette U.K. Limited | the subject of proprietary right is incapable of subsisting by itself. It has no independent existence apart from the business to which it is attached. It is local in character and divisible; if the business is carried on in several countries a separate goodwill attaches to it in each. So when the business is abandoned in one country in which it has acquired a goodwill the goodwill in that country perishes with it although the business may continue to be carried on in other countries.It is not possible for us at this stage at least to accept the submission that there was no user at all in India or not sufficient user as to amount to destruction or abandonment of the Plaintiffs goodwill and reputation. It is now equally not possible to accept the submission that the goods of the plaintiffs had lost their distinctiveness and had ceased to be associated in the minds of possible consumers with the goods of the Plaintiffs on account of the policies of the Government of India as a result whereof the commercial user in India had become restricted. It is needless to refer to some other cases to which our attention was drawn at the Bar on this point since we have already held that each case will depend upon individual facts and the type of product (in the wider sense) in respect of which relief is claimed.We were also informed that in India the Plaintiffs collaborators, the said Indian Shaving Products Company Ltd., were required on account of Government decision to adopt a get-up slightly different from the Plaintiffs post-1963 get-up and to add the word "EJTEK" (whatever it may mean) after 7 OCLOCK. It was therefore submitted that in view of this there could be little chance of any confusion between the goods manufactured under licence in India by the Plaintiffs collaborator, viz., the said Indian Shaving Products Company Ltd. and the goods produced by the Defendants. We find no substance in this plea as the essential name still remains 7 OCLOCK. In any case, we are not dealing with the claim by the Indian Company in this Appeal but with the claim for interim relief by the English Company, the owner of the trade mark, and, therefore, will have to consider principally the get-up in which the goods are sold by the Plaintiff Company.It was then submitted that the trial Court was in error in granting injunctions on the Notice of Motion and that the injunctions had been granted in violation of the principles on which interim relief ought or ought not to be granted and the balance of convenience was entirely in favour of the Defendants. It was submitted that the proper order would have been to require the Defendants to maintain accounts and that appropriate relief could have been given to the Plaintiffs at the stage of final decision of the suit had they succeeded.In this connection, we were referred to certain observations of Lord Diplock in American Gvanamid Co. v.Ethicon Ltd.,(1975) 1 All E.R. 504 at 510-511. It is not necessary to set down the passage. Indeed, Lord Diplock very carefully and clearly stated that where interim relief is to be granted, the extent and the nature of relief must very from case to case. At the stage of considering interim relief the Court must consider the prima facie strength of the Plaintiffs case, the nature of the defence and whether ultimately the Plaintiff could be compensated for at the stage of the trial of the suit. The Court will also have to consider the probabilities of success in the defence and also apply its mind to the factor whether the damages likely to be sustained by the successful Defendant ultimately if injunction is earlier granted against them cannot be compensated for.A mere order directing keeping of the accounts does not appear to us to be warranted in this case bearing in mind the fact that this is a clear and deliberate attempt on the part of the Defendants (Appellants before us) to cash in on the Plaintiffs goodwill and reputation and to trap the unwary customer into buying their goods in the belief caused by this deliberate attempt of confusion that the goods are the well known goods of the Plaintiffs. The Defendants are recent entrants as far as these two blade names are concerned and the 1st Defendants at least claim to be makers of blades under other names having extensive reputation and goodwill. It that be so, it cannot be said that the Defendants would be so hurt by the injunctions sought for that on principles on which Courts grant injunctions the injunctions ought not to have been granted against them. Indeed, it appears to us that there will be very little damage to the Defendants. In any case, we would like to observe that this is one of the cases in which, irrespective of considerations of damage, the plaintiffs were entitled to the injunction granted by the lower Court at least both in respect of prayers (a) and (b) of the Notice of Motion.To a certain extent, we are not sure of the claim of the Plaintiffs to be given interim relief on the footing of copyright in an artistic work. We do not wish to express a firm opinion one way or the other since confirmation of the injunction in terms of prayers (a) and (b) would be sufficient at this stage to protect the interest of the Plaintiffs. We may add that the Defendants were permitted by the Court to sell off the existing stock of blades with the names 7-Up and 7 Baje and we were told a few days ago that those tucks have been almost exhaust. (The precise statement was that about 5,000 packets were left about four days ago.) In the circumstances, we cannot find fault with the Single Judge for granting interim relief to the Plaintiffs in terms of prayers (a) and (b) of the Motion. | 0[ds]In our opinion, the decision of the Court in the Crazy Horse Saloon case obviously turned on the nature of the establishment and the physical situation and the approach of the Court or the ultimate conclusion in that case cannot be applied to the type of product which we are considering, viz., shaving razoris not possible for us at this stage at least to accept the submission that there was no user at all in India or not sufficient user as to amount to destruction or abandonment of the Plaintiffs goodwill and reputation. It is now equally not possible to accept the submission that the goods of the plaintiffs had lost their distinctiveness and had ceased to be associated in the minds of possible consumers with the goods of the Plaintiffs on account of the policies of the Government of India as a result whereof the commercial user in India had become restricted. It is needless to refer to some other cases to which our attention was drawn at the Bar on this point since we have already held that each case will depend upon individual facts and the type of product (in the wider sense) in respect of which relief is claimed.We were also informed that in India the Plaintiffs collaborators, the said Indian Shaving Products Company Ltd., were required on account of Government decision to adopt aslightly different from the Plaintiffsp and to add the word "EJTEK" (whatever it may mean) after 7 OCLOCK. It was therefore submitted that in view of this there could be little chance of any confusion between the goods manufactured under licence in India by the Plaintiffs collaborator, viz., the said Indian Shaving Products Company Ltd. and the goods produced by the Defendants. We find no substance in this plea as the essential name still remains 7 OCLOCK. In any case, we are not dealing with the claim by the Indian Company in this Appeal but with the claim for interim relief by the English Company, the owner of the trade mark, and, therefore, will have to consider principally thein which the goods are sold by the Plaintiff Company.It was then submitted that the trial Court was in error in granting injunctions on the Notice of Motion and that the injunctions had been granted in violation of the principles on which interim relief ought or ought not to be granted and the balance of convenience was entirely in favour of the Defendants. It was submitted that the proper order would have been to require the Defendants to maintain accounts and that appropriate relief could have been given to the Plaintiffs at the stage of final decision of the suit had they succeeded.In this connection, we were referred to certain observations of Lord Diplock in American Gvanamid Co. v.Ethicon Ltd.,(1975) 1 All E.R. 504 atIt is not necessary to set down the passage. Indeed, Lord Diplock very carefully and clearly stated that where interim relief is to be granted, the extent and the nature of relief must very from case to case. At the stage of considering interim relief the Court must consider the prima facie strength of the Plaintiffs case, the nature of the defence and whether ultimately the Plaintiff could be compensated for at the stage of the trial of the suit. The Court will also have to consider the probabilities of success in the defence and also apply its mind to the factor whether the damages likely to be sustained by the successful Defendant ultimately if injunction is earlier granted against them cannot be compensated for.A mere order directing keeping of the accounts does not appear to us to be warranted in this case bearing in mind the fact that this is a clear and deliberate attempt on the part of the Defendants (Appellants before us) to cash in on the Plaintiffs goodwill and reputation and to trap the unwary customer into buying their goods in the belief caused by this deliberate attempt of confusion that the goods are the well known goods of the Plaintiffs. The Defendants are recent entrants as far as these two blade names are concerned and the 1st Defendants at least claim to be makers of blades under other names having extensive reputation and goodwill. It that be so, it cannot be said that the Defendants would be so hurt by the injunctions sought for that on principles on which Courts grant injunctions the injunctions ought not to have been granted against them. Indeed, it appears to us that there will be very little damage to the Defendants. In any case, we would like to observe that this is one of the cases in which, irrespective of considerations of damage, the plaintiffs were entitled to the injunction granted by the lower Court at least both in respect of prayers (a) and (b) of the Notice of Motion.To a certain extent, we are not sure of the claim of the Plaintiffs to be given interim relief on the footing of copyright in an artistic work. We do not wish to express a firm opinion one way or the other since confirmation of the injunction in terms of prayers (a) and (b) would be sufficient at this stage to protect the interest of the Plaintiffs. We may add that the Defendants were permitted by the Court to sell off the existing stock of blades with the namesand 7 Baje and we were told a few days ago that those tucks have been almost exhaust. (The precise statement was that about 5,000 packets were left about four days ago.) In the circumstances, we cannot find fault with the Single Judge for granting interim relief to the Plaintiffs in terms of prayers (a) and (b) of the Motion. | 0 | 3,673 | 1,034 | ### 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 subject of proprietary right is incapable of subsisting by itself. It has no independent existence apart from the business to which it is attached. It is local in character and divisible; if the business is carried on in several countries a separate goodwill attaches to it in each. So when the business is abandoned in one country in which it has acquired a goodwill the goodwill in that country perishes with it although the business may continue to be carried on in other countries.It is not possible for us at this stage at least to accept the submission that there was no user at all in India or not sufficient user as to amount to destruction or abandonment of the Plaintiffs goodwill and reputation. It is now equally not possible to accept the submission that the goods of the plaintiffs had lost their distinctiveness and had ceased to be associated in the minds of possible consumers with the goods of the Plaintiffs on account of the policies of the Government of India as a result whereof the commercial user in India had become restricted. It is needless to refer to some other cases to which our attention was drawn at the Bar on this point since we have already held that each case will depend upon individual facts and the type of product (in the wider sense) in respect of which relief is claimed.We were also informed that in India the Plaintiffs collaborators, the said Indian Shaving Products Company Ltd., were required on account of Government decision to adopt a get-up slightly different from the Plaintiffs post-1963 get-up and to add the word "EJTEK" (whatever it may mean) after 7 OCLOCK. It was therefore submitted that in view of this there could be little chance of any confusion between the goods manufactured under licence in India by the Plaintiffs collaborator, viz., the said Indian Shaving Products Company Ltd. and the goods produced by the Defendants. We find no substance in this plea as the essential name still remains 7 OCLOCK. In any case, we are not dealing with the claim by the Indian Company in this Appeal but with the claim for interim relief by the English Company, the owner of the trade mark, and, therefore, will have to consider principally the get-up in which the goods are sold by the Plaintiff Company.It was then submitted that the trial Court was in error in granting injunctions on the Notice of Motion and that the injunctions had been granted in violation of the principles on which interim relief ought or ought not to be granted and the balance of convenience was entirely in favour of the Defendants. It was submitted that the proper order would have been to require the Defendants to maintain accounts and that appropriate relief could have been given to the Plaintiffs at the stage of final decision of the suit had they succeeded.In this connection, we were referred to certain observations of Lord Diplock in American Gvanamid Co. v.Ethicon Ltd.,(1975) 1 All E.R. 504 at 510-511. It is not necessary to set down the passage. Indeed, Lord Diplock very carefully and clearly stated that where interim relief is to be granted, the extent and the nature of relief must very from case to case. At the stage of considering interim relief the Court must consider the prima facie strength of the Plaintiffs case, the nature of the defence and whether ultimately the Plaintiff could be compensated for at the stage of the trial of the suit. The Court will also have to consider the probabilities of success in the defence and also apply its mind to the factor whether the damages likely to be sustained by the successful Defendant ultimately if injunction is earlier granted against them cannot be compensated for.A mere order directing keeping of the accounts does not appear to us to be warranted in this case bearing in mind the fact that this is a clear and deliberate attempt on the part of the Defendants (Appellants before us) to cash in on the Plaintiffs goodwill and reputation and to trap the unwary customer into buying their goods in the belief caused by this deliberate attempt of confusion that the goods are the well known goods of the Plaintiffs. The Defendants are recent entrants as far as these two blade names are concerned and the 1st Defendants at least claim to be makers of blades under other names having extensive reputation and goodwill. It that be so, it cannot be said that the Defendants would be so hurt by the injunctions sought for that on principles on which Courts grant injunctions the injunctions ought not to have been granted against them. Indeed, it appears to us that there will be very little damage to the Defendants. In any case, we would like to observe that this is one of the cases in which, irrespective of considerations of damage, the plaintiffs were entitled to the injunction granted by the lower Court at least both in respect of prayers (a) and (b) of the Notice of Motion.To a certain extent, we are not sure of the claim of the Plaintiffs to be given interim relief on the footing of copyright in an artistic work. We do not wish to express a firm opinion one way or the other since confirmation of the injunction in terms of prayers (a) and (b) would be sufficient at this stage to protect the interest of the Plaintiffs. We may add that the Defendants were permitted by the Court to sell off the existing stock of blades with the names 7-Up and 7 Baje and we were told a few days ago that those tucks have been almost exhaust. (The precise statement was that about 5,000 packets were left about four days ago.) In the circumstances, we cannot find fault with the Single Judge for granting interim relief to the Plaintiffs in terms of prayers (a) and (b) of the Motion.
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### Explanation:
In our opinion, the decision of the Court in the Crazy Horse Saloon case obviously turned on the nature of the establishment and the physical situation and the approach of the Court or the ultimate conclusion in that case cannot be applied to the type of product which we are considering, viz., shaving razoris not possible for us at this stage at least to accept the submission that there was no user at all in India or not sufficient user as to amount to destruction or abandonment of the Plaintiffs goodwill and reputation. It is now equally not possible to accept the submission that the goods of the plaintiffs had lost their distinctiveness and had ceased to be associated in the minds of possible consumers with the goods of the Plaintiffs on account of the policies of the Government of India as a result whereof the commercial user in India had become restricted. It is needless to refer to some other cases to which our attention was drawn at the Bar on this point since we have already held that each case will depend upon individual facts and the type of product (in the wider sense) in respect of which relief is claimed.We were also informed that in India the Plaintiffs collaborators, the said Indian Shaving Products Company Ltd., were required on account of Government decision to adopt aslightly different from the Plaintiffsp and to add the word "EJTEK" (whatever it may mean) after 7 OCLOCK. It was therefore submitted that in view of this there could be little chance of any confusion between the goods manufactured under licence in India by the Plaintiffs collaborator, viz., the said Indian Shaving Products Company Ltd. and the goods produced by the Defendants. We find no substance in this plea as the essential name still remains 7 OCLOCK. In any case, we are not dealing with the claim by the Indian Company in this Appeal but with the claim for interim relief by the English Company, the owner of the trade mark, and, therefore, will have to consider principally thein which the goods are sold by the Plaintiff Company.It was then submitted that the trial Court was in error in granting injunctions on the Notice of Motion and that the injunctions had been granted in violation of the principles on which interim relief ought or ought not to be granted and the balance of convenience was entirely in favour of the Defendants. It was submitted that the proper order would have been to require the Defendants to maintain accounts and that appropriate relief could have been given to the Plaintiffs at the stage of final decision of the suit had they succeeded.In this connection, we were referred to certain observations of Lord Diplock in American Gvanamid Co. v.Ethicon Ltd.,(1975) 1 All E.R. 504 atIt is not necessary to set down the passage. Indeed, Lord Diplock very carefully and clearly stated that where interim relief is to be granted, the extent and the nature of relief must very from case to case. At the stage of considering interim relief the Court must consider the prima facie strength of the Plaintiffs case, the nature of the defence and whether ultimately the Plaintiff could be compensated for at the stage of the trial of the suit. The Court will also have to consider the probabilities of success in the defence and also apply its mind to the factor whether the damages likely to be sustained by the successful Defendant ultimately if injunction is earlier granted against them cannot be compensated for.A mere order directing keeping of the accounts does not appear to us to be warranted in this case bearing in mind the fact that this is a clear and deliberate attempt on the part of the Defendants (Appellants before us) to cash in on the Plaintiffs goodwill and reputation and to trap the unwary customer into buying their goods in the belief caused by this deliberate attempt of confusion that the goods are the well known goods of the Plaintiffs. The Defendants are recent entrants as far as these two blade names are concerned and the 1st Defendants at least claim to be makers of blades under other names having extensive reputation and goodwill. It that be so, it cannot be said that the Defendants would be so hurt by the injunctions sought for that on principles on which Courts grant injunctions the injunctions ought not to have been granted against them. Indeed, it appears to us that there will be very little damage to the Defendants. In any case, we would like to observe that this is one of the cases in which, irrespective of considerations of damage, the plaintiffs were entitled to the injunction granted by the lower Court at least both in respect of prayers (a) and (b) of the Notice of Motion.To a certain extent, we are not sure of the claim of the Plaintiffs to be given interim relief on the footing of copyright in an artistic work. We do not wish to express a firm opinion one way or the other since confirmation of the injunction in terms of prayers (a) and (b) would be sufficient at this stage to protect the interest of the Plaintiffs. We may add that the Defendants were permitted by the Court to sell off the existing stock of blades with the namesand 7 Baje and we were told a few days ago that those tucks have been almost exhaust. (The precise statement was that about 5,000 packets were left about four days ago.) In the circumstances, we cannot find fault with the Single Judge for granting interim relief to the Plaintiffs in terms of prayers (a) and (b) of the Motion.
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Anil Vs. State of Maharashtra | and none else. Identity of deceased itself not proved by the prosecution. Last seen evidence is doubtful. Learned trial Court without any strong circumstantial evidence, wrongly convicted the appellant/accused. At last, prayed that there is no sufficient evidence for the conviction of accused and prayed for allowing the appeal and acquitting the accused.7. Heard Smt. K.S. Joshi, learned Additional Public Prosecutor appearing on behalf of the respondent/State. She has supported the impugned judgment. 8. Conviction of accused/appellant is based on last seen evidence and discovery of moped and dead body of deceased at the instance of accused. It is pertinent to note that the evidence in respect of recovery of moped is doubtful. PW1 was the panch for seizure panchnama of camera. He has stated in his cross-examination that his signature was obtained on blank paper. He did not know from whom said camera was seized. Therefore, his evidence is not helpful to the prosecution.9. PW2 complainant has stated about missing of his father from 06.02.1996. He has stated that he searched his father but not found. Therefore, he lodged missing report. Thereafter, he went to the house of his relatives. They went to village Katalbodi. Ravidas Meshram told him that accused No.2 (appellant) was found pillion rider on the moped of deceased. Deceased was driving the said moped. They went towards Bazargaon. It is pertinent to note that Ravidas Meshram is not examined by the prosecution.10. PW2 has further stated that Ravidas Meshram taken him to the house of appellant. Appellant was present. He found Hero Puch moped at the house of appellant. Accused handed over key of moped. It is pertinent to note that prosecution has shown recovery under Section 27 of the Indian Evidence Act. This recovery is doubtful because the investigating agency was already knowing about the moped at the house of accused. Moreover, PW7 Ujwal Nikose has stated in his cross-examination that he has stated before police that the vehicle found with accused No.2 Anil was given by accused No.1 Shekhar and this fact was disclosed by accused No.1 himself. Therefore, it is clear that discovery of moped at the instance of accused is not reliable.11. As per the case of prosecution, accused shown the dead body of deceased as per his statement recorded under Section 27 of the Indian Evidence Act. PW3 Durgaprasad has stated in his evidence that accused Anil made a statement voluntarily on 07.03.1996 and shown his willingness to show the dead body of deceased. Thereafter accused Anil led them to the place of incident in Bazargaon Shivar. Accused Anil shown the dead body. Spot Panchnama (Exh.28) and Discovery Panchnama (Exh.29) were prepared in his presence.12. Evidence of PW3 in respect of discovery of moped and dead body is not reliable because he has not identified accused Anil in the Court. On the other hand, he has specifically stated in his evidence that, I cannot say whether accused No.2 Anil was the same person who made statement voluntarily. In the cross-examination, he has stated that, he had been to the spot in the night at about 01:30 a.m. They were on the spot for about 34 hours. The spot was at hilly region in the forest land. He had not seen deceased Bapurao Ghate. He was not known to him. His evidence is not reliable because as per the panchnama, it was prepared at about 07:30 p.m. This witness not identified the deceased. Moreover, the dead body was in the form of skeleton. As per the evidence of PW2, deceased was missing from 06.02.1996 and dead body was found on 07.03.1996. This witness not identified accused before the Court. Identity of deceased also not established by the prosecution. Hence, discovery of dead body at the instance of accused is not proved by the prosecution.13. It is the case of prosecution that deceased was lastly seen with the accused. PW4 Vitthal has stated in his evidence that he had seen accused Anil at the bus stop of Bazargaon along with one old person. Accused and said old person were on red motor cycle. He had talked with accused Anil and he told him that he was going to Nagpur. In the crossexamination, he has stated in his evidence that old person was not known to him who was along with accused. His evidence is not reliable because he has stated that accused and old person were on the red motor cycle; whereas the motor cycle/moped was of black colour. The ownership of the seized vehicle also not proved. This witness not identified the deceased. No photograph of deceased was shown to this witness by the police. Therefore, identity of the deceased is not proved by the prosecution.14. PW5 Arjun has stated in his evidence that one old person and young boy came to his field on the mnotor cycle. He has not stated that the deceased was the same person who was with accused.15. The prosecution has miserably failed to prove the identity of the deceased. There is no evidence to show that deceased Bapurao Ghate was lastly in the company of accused. PW10 and PW11 not supported to the prosecution. There is no evidence to show that at the time of incident, deceased was lastly in the company of accused. As per the evidence of prosecution, deceased was missing from 06.02.1996. The dead body was found on 07.03.1996. Postmortem report was conducted on 07.03.1996. Medical Officer has stated in his evidence that dead body was partly mummify and partly saponied with putrifacation at places. Cause of death was shown as head injury. He has stated that death of the said person might have occurred before 15 days of postmortem report. Looking to this evidence, it is clear that when dead body was found, it was not in a position to identify. There is no specific evidence to show that the dead body was of Bapurao Ghate. The prosecution has failed to establish that deceased was lastly in the company of accused. | 1[ds]It is pertinent to note that Ravidas Meshram is not examined by theis pertinent to note that prosecution has shown recovery under Section 27 of the Indian Evidence Act. This recovery is doubtful because the investigating agency was already knowing about the moped at the house of accused. Moreover, PW7 Ujwal Nikose has stated in histhat he has stated before police that the vehicle found with accused No.2 Anil was given by accused No.1 Shekhar and this fact was disclosed by accused No.1 himself. Therefore, it is clear that discovery of moped at the instance of accused is not reliable.11. As per the case of prosecution, accused shown the dead body of deceased as per his statement recorded under Section 27 of the Indian Evidence Act. PW3 Durgaprasad has stated in his evidence that accused Anil made a statement voluntarily on 07.03.1996 and shown his willingness to show the dead body of deceased. Thereafter accused Anil led them to the place of incident in Bazargaon Shivar. Accused Anil shown the dead body. Spot Panchnama (Exh.28) and Discovery Panchnama (Exh.29) were prepared in hisevidence is not reliable because as per the panchnama, it was prepared at about 07:30 p.m. This witness not identified the deceased. Moreover, the dead body was in the form of skeleton. As per the evidence of PW2, deceased was missing from 06.02.1996 and dead body was found on 07.03.1996. This witness not identified accused before the Court. Identity of deceased also not established by the prosecution. Hence, discovery of dead body at the instance of accused is not proved by the prosecution.13. It is the case of prosecution that deceased was lastly seen with the accused. PW4 Vitthal has stated in his evidence that he had seen accused Anil at the bus stop of Bazargaon along with one old person. Accused and said old person were on red motor cycle. He had talked with accused Anil and he told him that he was going to Nagpur. In the crossexamination, he has stated in his evidence that old person was not known to him who was along with accused. His evidence is not reliable because he has stated that accused and old person were on the red motor cycle; whereas the motor cycle/moped was of black colour. The ownership of the seized vehicle also not proved. This witness not identified the deceased. No photograph of deceased was shown to this witness by the police. Therefore, identity of the deceased is not proved by the prosecution.The prosecution has miserably failed to prove the identity of the deceased. There is no evidence to show that deceased Bapurao Ghate was lastly in the company of accused. PW10 and PW11 not supported to the prosecution. There is no evidence to show that at the time of incident, deceased was lastly in the company of accused. As per the evidence of prosecution, deceased was missing from 06.02.1996. The dead body was found on 07.03.1996. Postmortem report was conducted on 07.03.1996. Medical Officer has stated in his evidence that dead body was partly mummify and partly saponied with putrifacation at places. Cause of death was shown as head injury. He has stated that death of the said person might have occurred before 15 days of postmortem report. Looking to this evidence, it is clear that when dead body was found, it was not in a position to identify. There is no specific evidence to show that the dead body was of Bapurao Ghate. The prosecution has failed to establish that deceased was lastly in the company of accused. | 1 | 1,711 | 653 | ### 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:
and none else. Identity of deceased itself not proved by the prosecution. Last seen evidence is doubtful. Learned trial Court without any strong circumstantial evidence, wrongly convicted the appellant/accused. At last, prayed that there is no sufficient evidence for the conviction of accused and prayed for allowing the appeal and acquitting the accused.7. Heard Smt. K.S. Joshi, learned Additional Public Prosecutor appearing on behalf of the respondent/State. She has supported the impugned judgment. 8. Conviction of accused/appellant is based on last seen evidence and discovery of moped and dead body of deceased at the instance of accused. It is pertinent to note that the evidence in respect of recovery of moped is doubtful. PW1 was the panch for seizure panchnama of camera. He has stated in his cross-examination that his signature was obtained on blank paper. He did not know from whom said camera was seized. Therefore, his evidence is not helpful to the prosecution.9. PW2 complainant has stated about missing of his father from 06.02.1996. He has stated that he searched his father but not found. Therefore, he lodged missing report. Thereafter, he went to the house of his relatives. They went to village Katalbodi. Ravidas Meshram told him that accused No.2 (appellant) was found pillion rider on the moped of deceased. Deceased was driving the said moped. They went towards Bazargaon. It is pertinent to note that Ravidas Meshram is not examined by the prosecution.10. PW2 has further stated that Ravidas Meshram taken him to the house of appellant. Appellant was present. He found Hero Puch moped at the house of appellant. Accused handed over key of moped. It is pertinent to note that prosecution has shown recovery under Section 27 of the Indian Evidence Act. This recovery is doubtful because the investigating agency was already knowing about the moped at the house of accused. Moreover, PW7 Ujwal Nikose has stated in his cross-examination that he has stated before police that the vehicle found with accused No.2 Anil was given by accused No.1 Shekhar and this fact was disclosed by accused No.1 himself. Therefore, it is clear that discovery of moped at the instance of accused is not reliable.11. As per the case of prosecution, accused shown the dead body of deceased as per his statement recorded under Section 27 of the Indian Evidence Act. PW3 Durgaprasad has stated in his evidence that accused Anil made a statement voluntarily on 07.03.1996 and shown his willingness to show the dead body of deceased. Thereafter accused Anil led them to the place of incident in Bazargaon Shivar. Accused Anil shown the dead body. Spot Panchnama (Exh.28) and Discovery Panchnama (Exh.29) were prepared in his presence.12. Evidence of PW3 in respect of discovery of moped and dead body is not reliable because he has not identified accused Anil in the Court. On the other hand, he has specifically stated in his evidence that, I cannot say whether accused No.2 Anil was the same person who made statement voluntarily. In the cross-examination, he has stated that, he had been to the spot in the night at about 01:30 a.m. They were on the spot for about 34 hours. The spot was at hilly region in the forest land. He had not seen deceased Bapurao Ghate. He was not known to him. His evidence is not reliable because as per the panchnama, it was prepared at about 07:30 p.m. This witness not identified the deceased. Moreover, the dead body was in the form of skeleton. As per the evidence of PW2, deceased was missing from 06.02.1996 and dead body was found on 07.03.1996. This witness not identified accused before the Court. Identity of deceased also not established by the prosecution. Hence, discovery of dead body at the instance of accused is not proved by the prosecution.13. It is the case of prosecution that deceased was lastly seen with the accused. PW4 Vitthal has stated in his evidence that he had seen accused Anil at the bus stop of Bazargaon along with one old person. Accused and said old person were on red motor cycle. He had talked with accused Anil and he told him that he was going to Nagpur. In the crossexamination, he has stated in his evidence that old person was not known to him who was along with accused. His evidence is not reliable because he has stated that accused and old person were on the red motor cycle; whereas the motor cycle/moped was of black colour. The ownership of the seized vehicle also not proved. This witness not identified the deceased. No photograph of deceased was shown to this witness by the police. Therefore, identity of the deceased is not proved by the prosecution.14. PW5 Arjun has stated in his evidence that one old person and young boy came to his field on the mnotor cycle. He has not stated that the deceased was the same person who was with accused.15. The prosecution has miserably failed to prove the identity of the deceased. There is no evidence to show that deceased Bapurao Ghate was lastly in the company of accused. PW10 and PW11 not supported to the prosecution. There is no evidence to show that at the time of incident, deceased was lastly in the company of accused. As per the evidence of prosecution, deceased was missing from 06.02.1996. The dead body was found on 07.03.1996. Postmortem report was conducted on 07.03.1996. Medical Officer has stated in his evidence that dead body was partly mummify and partly saponied with putrifacation at places. Cause of death was shown as head injury. He has stated that death of the said person might have occurred before 15 days of postmortem report. Looking to this evidence, it is clear that when dead body was found, it was not in a position to identify. There is no specific evidence to show that the dead body was of Bapurao Ghate. The prosecution has failed to establish that deceased was lastly in the company of accused.
### Response:
1
### Explanation:
It is pertinent to note that Ravidas Meshram is not examined by theis pertinent to note that prosecution has shown recovery under Section 27 of the Indian Evidence Act. This recovery is doubtful because the investigating agency was already knowing about the moped at the house of accused. Moreover, PW7 Ujwal Nikose has stated in histhat he has stated before police that the vehicle found with accused No.2 Anil was given by accused No.1 Shekhar and this fact was disclosed by accused No.1 himself. Therefore, it is clear that discovery of moped at the instance of accused is not reliable.11. As per the case of prosecution, accused shown the dead body of deceased as per his statement recorded under Section 27 of the Indian Evidence Act. PW3 Durgaprasad has stated in his evidence that accused Anil made a statement voluntarily on 07.03.1996 and shown his willingness to show the dead body of deceased. Thereafter accused Anil led them to the place of incident in Bazargaon Shivar. Accused Anil shown the dead body. Spot Panchnama (Exh.28) and Discovery Panchnama (Exh.29) were prepared in hisevidence is not reliable because as per the panchnama, it was prepared at about 07:30 p.m. This witness not identified the deceased. Moreover, the dead body was in the form of skeleton. As per the evidence of PW2, deceased was missing from 06.02.1996 and dead body was found on 07.03.1996. This witness not identified accused before the Court. Identity of deceased also not established by the prosecution. Hence, discovery of dead body at the instance of accused is not proved by the prosecution.13. It is the case of prosecution that deceased was lastly seen with the accused. PW4 Vitthal has stated in his evidence that he had seen accused Anil at the bus stop of Bazargaon along with one old person. Accused and said old person were on red motor cycle. He had talked with accused Anil and he told him that he was going to Nagpur. In the crossexamination, he has stated in his evidence that old person was not known to him who was along with accused. His evidence is not reliable because he has stated that accused and old person were on the red motor cycle; whereas the motor cycle/moped was of black colour. The ownership of the seized vehicle also not proved. This witness not identified the deceased. No photograph of deceased was shown to this witness by the police. Therefore, identity of the deceased is not proved by the prosecution.The prosecution has miserably failed to prove the identity of the deceased. There is no evidence to show that deceased Bapurao Ghate was lastly in the company of accused. PW10 and PW11 not supported to the prosecution. There is no evidence to show that at the time of incident, deceased was lastly in the company of accused. As per the evidence of prosecution, deceased was missing from 06.02.1996. The dead body was found on 07.03.1996. Postmortem report was conducted on 07.03.1996. Medical Officer has stated in his evidence that dead body was partly mummify and partly saponied with putrifacation at places. Cause of death was shown as head injury. He has stated that death of the said person might have occurred before 15 days of postmortem report. Looking to this evidence, it is clear that when dead body was found, it was not in a position to identify. There is no specific evidence to show that the dead body was of Bapurao Ghate. The prosecution has failed to establish that deceased was lastly in the company of accused.
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GAJUBHA JADEJA JESAR Vs. UNION OF INDIA & ORS | comply with environment norms, is in our view not impermissible. The Court cannot be oblivious to the economy or the need to protect the livelihood of hundreds of employees and others employed in the project and others dependent on the project, if such projects comply with environmental norms. xx xx xx 60. Even though this Court deprecated ex post facto clearances, in Alembic Pharmaceuticals Ltd. (supra), this Court did not direct closure of the units concerned but explored measures to control the damage caused by the industrial units. This Court held:— However, since the expansion has been undertaken and the industry has been functioning, we do not deem it appropriate to order closure of the entire plant as directed by the High Court. xx xx xx 63. Ex post facto environmental clearance should not be granted routinely, but in exceptional circumstances taking into account all relevant environmental factors. Where the adverse consequences of denial of ex post facto approval outweigh the consequences of regularization of operations by grant of ex post facto approval, and the establishment concerned otherwise conforms to the requisite pollution norms, ex post facto approval should be given in accordance with law, in strict conformity with the applicable Rules, Regulations and/or Notifications. The deviant industry may be penalised by an imposition of heavy penalty on the principle of polluter pays and the cost of restoration of environment may be recovered from it. 64. The question in this case is, whether a unit contributing to the economy of the country and providing livelihood to hundreds of people, which has been set up pursuant to requisite approvals from the concerned statutory authorities, and has applied for ex post facto EC, should be closed down for the technical irregularity of want of prior environmental clearance, pending the issuance of EC, even though it may not cause pollution and/or may be found to comply with the required norms. The answer to the aforesaid question has to be in the negative, more so when the HSPCB was itself under the misconception that no environment clearance was required for the units in question. HSPCB has in its counter affidavit before the NGT clearly stated that a decision was taken to regularize units such as the Apcolite Yamuna Nagar and Pahwa Yamuna Nagar Units, since requisite approvals had been granted to those units, by the concerned authorities on the misconception that no EC was required. xx xx xx 66. Ex post facto EC should not ordinarily be granted, and certainly not for the asking. At the same time ex post facto clearances and/or approvals cannot be declined with pedantic rigidity, regardless of the consequences of stopping the operations. This Court is of the view that the NGT erred in law in directing that the units cannot be allowed to function till compliance of the statutory mandate. 21. The judgment in Common Cause referred to by Ms. Shenoy is of no help to support her arguments as the question was whether illegal mining can be said to be within the leased area for mining. It was held that illegal mining takes within its fold excess extraction of a mineral over the permissible limit even within the mining lease area under the Mines and Minerals (Development and Regulation) Act, 1957. 22. In Hanuman Laxman Aroskar, this Court held that the EIA notification of the year 2006 demonstrates an increasing awareness of the complexities of the environment and the heightened scrutiny required to ensure its continued sustenance, for today and for generations to come. It embodies a commitment to sustainable development. It was held as under: 56. The 2006 Notification embodies the notion that the development agenda of the nation must be carried out in compliance with norms stipulated for the protection of the environment and its complexities. It serves as a balance between development and protection of the environment: there is no trade-off between the two. The protection of the environment is an essential facet of development. It cannot be reduced to a technical formula. The notification demonstrates an increasing awareness of the complexities of the environment and the heightened scrutiny required to ensure its continued sustenance, for today and for generations to come. It embodies a commitment to sustainable development. In laying down a detailed procedure for the grant of an EC, the 2006 Notification attempts to bridge the perceived gap between the environment and development. 23. In Alembic Pharmaceuticals Limited, the validity of circular dated 14.5.2002 was in question. This Court found that such circular is contrary to the EIA notification of 1994. It was decided by the Ministry that the industrial units which had gone into production without obtaining an EC would have to apply for and obtain an ex- post facto EC. The said judgment has no applicability to the facts of the present case where the Ministry itself is of the opinion that there was an ambiguity in the EIA notification of 2006. Such ambiguity has been removed only when the EIA notification was subsequently amended on 20.7.2022. Therefore, the judgments referred to by Ms. Shenoy are not applicable to the facts of the present case. 24. We are constrained to point out that out of 1689 units in the country, the applicant has chosen the Project Proponent as it appears to be a motivated petition to target the Project Proponent though the Cold Steel Rolling Mills in the country were operating under the same regime. Not only the Project Proponent, but the country also has suffered immensely on account of closure of the unit which was export oriented unit. It may be noticed that the Gujarat State Pollution Control Board has chosen the Project Proponent to serve with a closure notice on 25.6.2021. The unit is lying closed since then. In view of the amendment in the EIA notification dated 20.7.2022, the unit has time to seek Environmental Clearance in terms of the time line mentioned in the notification. Therefore, the order of closure of the unit cannot be sustained. | 0[ds]18. We have heard learned counsel for the parties and find no error in the order passed by the Tribunal. The order of the Tribunal is based upon recommendation of the EAC which suggested that one year time should be granted to the industry to comply with the EIA notification dated 14.9.2006. The stand of the Ministry as well as the Project Proponent is that there was ambiguity in the EIA notification 2006. 1689 units have come up in the country on the basis of CTE and CTO regime. It is not a case of ambiguous interpretation in respect of one or two units but the entire country was having the same interpretation that Re-Rolling Steel Plants do not require a prior Environmental Clearance. The ambiguity has been removed only on 20.7.2022 when the notification has been amended, as reproduced above. Since there was ambiguity earlier, the Tribunal had granted time to the Project Proponent to comply with the requirement of Environmental Clearance.19. Such direction of the Tribunal is, in fact, arising out of scope of powers conferred on the Tribunal under Section 21 of the NGT Act. This Court in Ankita Sinha considering the suo moto powers of the Tribunal held as under:98. The NGT Act, when read as a whole, gives much leeway to the NGT to go beyond a mere adjudicatory role. The Parliaments intention is clearly discernible to create a multifunctional body, with the capacity to provide redressal for environmental exigencies. Accordingly, the principles of environmental justice and environmental equity must be explicitly acknowledged as pivotal threads of the NGTs fabric. The NGT must be seen as a sui generis institution and not unus multorum, and its special and exclusive role to foster public interest in the area of environmental domain delineated in the enactment of 2010 must necessarily receive legal recognition of this Court.xxx xxx xxx102. In circumstances where adverse environmental impact may be egregious, but the community affected is unable to effectively get the machinery into action, a forum created specifically to address such concerns should surely be expected to move with expediency, and of its own accord. The potentiality of disproportionate harm imposes a higher obligation on authorities to preserve rights which may be waylaid due to such restrictive access. It is also noteworthy that the global impacts of climate change will fall disproportionately on minority and low-income communities [Scott La Franchi, Surveying the Precautionary Principles Ongoing Global Development : The Evolution of an Emergent Environmental Management Tool, [32 B.C. Envtl. Aff. L. Rev. 679 (2005)]. Thus, an affirmative role, beyond mere adjudication at the instance of applicant, is certainly required for serving the ends of environmental justice, as the statute itself requires of the NGT. We cannot validate an argument which furthers uncertainty to justify the role of a spectator, if not inaction, and would most assuredly result in injustice.103. The NGT, with the distinct role envisaged for it, can hardly afford to remain a mute spectator when no-one knocks on its door. The forum itself has correctly identified the need for collective stratagem for addressing environmental concerns. Such a society centric approach must be allowed to work within the established safety valves of the principles of natural justice and appeal to the Supreme Court. The hands- off mode for the NGT, when faced with exigencies requiring immediate and effective response, would debilitate the forum from discharging its responsibility and this must be ruled out in the interest of justice.20. In Pahwa Plastics Pvt. Ltd., an establishment had been set up pursuant to CTE and CTO from the concerned statutory authority. The establishment applied for ex-post facto Environmental Clearance. In these circumstances, this Court held that ex-post Environmental Clearance should not ordinarily be granted but it cannot be declined with pedantic rigidity, regardless of the consequences of stopping the operation. Hence, the order of the Tribunal to close the units was found to be erroneous. The order of closure of establishments for the lack of Environmental Clearance was set aside by this Court, inter alia, for the reason that whether the unit contributing to the economy and providing livelihood to hundreds of people set up in pursuance to requisite approvals of the concerned statutory authorities should be closed down for the technical irregularity or want of prior Environmental Clearance. This Court held as under:54. The manufacturing units of the Appellants appoint about 8,000 employees and have a huge annual turnover. An establishment contributing to the economy of the country and providing livelihood ought not to be closed down only on the ground of the technical irregularity of not obtaining prior Environmental Clearance irrespective of whether or not the unit actually causes pollution.xx xx xx56. As held by this Court in Electrosteel Steels Limited (supra) ex post facto Environmental Clearance should not ordinarily be granted, and certainly not for the asking. At the same time ex post facto clearances and/or approvals and/or removal of technical irregularities in terms of a Notification under the EP Act cannot be declined with pedantic rigidity, oblivious of the consequences of stopping the operation of mines, running factories and plants.57. The 1986 Act does not prohibit ex post facto Environmental Clearance. Grant of ex post facto EC in accordance with law, in strict compliance with Rules, Regulations, Notifications and/or applicable orders, in appropriate cases, where the projects are in compliance with, or can be made to comply with environment norms, is in our view not impermissible. The Court cannot be oblivious to the economy or the need to protect the livelihood of hundreds of employees and others employed in the project and others dependent on the project, if such projects comply with environmental norms.xx xx xx60. Even though this Court deprecated ex post facto clearances, in Alembic Pharmaceuticals Ltd. (supra), this Court did not direct closure of the units concerned but explored measures to control the damage caused by the industrial units. This Court held:—However, since the expansion has been undertaken and the industry has been functioning, we do not deem it appropriate to order closure of the entire plant as directed by the High Court.xx xx xx63. Ex post facto environmental clearance should not be granted routinely, but in exceptional circumstances taking into account all relevant environmental factors. Where the adverse consequences of denial of ex post facto approval outweigh the consequences of regularization of operations by grant of ex post facto approval, and the establishment concerned otherwise conforms to the requisite pollution norms, ex post facto approval should be given in accordance with law, in strict conformity with the applicable Rules, Regulations and/or Notifications. The deviant industry may be penalised by an imposition of heavy penalty on the principle of polluter pays and the cost of restoration of environment may be recovered from it.64. The question in this case is, whether a unit contributing to the economy of the country and providing livelihood to hundreds of people, which has been set up pursuant to requisite approvals from the concerned statutory authorities, and has applied for ex post facto EC, should be closed down for the technical irregularity of want of prior environmental clearance, pending the issuance of EC, even though it may not cause pollution and/or may be found to comply with the required norms. The answer to the aforesaid question has to be in the negative, more so when the HSPCB was itself under the misconception that no environment clearance was required for the units in question. HSPCB has in its counter affidavit before the NGT clearly stated that a decision was taken to regularize units such as the Apcolite Yamuna Nagar and Pahwa Yamuna Nagar Units, since requisite approvals had been granted to those units, by the concerned authorities on the misconception that no EC was required.xx xx xx66. Ex post facto EC should not ordinarily be granted, and certainly not for the asking. At the same time ex post facto clearances and/or approvals cannot be declined with pedantic rigidity, regardless of the consequences of stopping the operations. This Court is of the view that the NGT erred in law in directing that the units cannot be allowed to function till compliance of the statutory mandate.21. The judgment in Common Cause referred to by Ms. Shenoy is of no help to support her arguments as the question was whether illegal mining can be said to be within the leased area for mining. It was held that illegal mining takes within its fold excess extraction of a mineral over the permissible limit even within the mining lease area under the Mines and Minerals (Development and Regulation) Act, 1957.23. In Alembic Pharmaceuticals Limited, the validity of circular dated 14.5.2002 was in question. This Court found that such circular is contrary to the EIA notification of 1994. It was decided by the Ministry that the industrial units which had gone into production without obtaining an EC would have to apply for and obtain an ex- post facto EC. The said judgment has no applicability to the facts of the present case where the Ministry itself is of the opinion that there was an ambiguity in the EIA notification of 2006. Such ambiguity has been removed only when the EIA notification was subsequently amended on 20.7.2022. Therefore, the judgments referred to by Ms. Shenoy are not applicable to the facts of the present case.24. We are constrained to point out that out of 1689 units in the country, the applicant has chosen the Project Proponent as it appears to be a motivated petition to target the Project Proponent though the Cold Steel Rolling Mills in the country were operating under the same regime. Not only the Project Proponent, but the country also has suffered immensely on account of closure of the unit which was export oriented unit. It may be noticed that the Gujarat State Pollution Control Board has chosen the Project Proponent to serve with a closure notice on 25.6.2021. The unit is lying closed since then. In view of the amendment in the EIA notification dated 20.7.2022, the unit has time to seek Environmental Clearance in terms of the time line mentioned in the notification. Therefore, the order of closure of the unit cannot be sustained. | 0 | 4,805 | 1,858 | ### Instruction:
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comply with environment norms, is in our view not impermissible. The Court cannot be oblivious to the economy or the need to protect the livelihood of hundreds of employees and others employed in the project and others dependent on the project, if such projects comply with environmental norms. xx xx xx 60. Even though this Court deprecated ex post facto clearances, in Alembic Pharmaceuticals Ltd. (supra), this Court did not direct closure of the units concerned but explored measures to control the damage caused by the industrial units. This Court held:— However, since the expansion has been undertaken and the industry has been functioning, we do not deem it appropriate to order closure of the entire plant as directed by the High Court. xx xx xx 63. Ex post facto environmental clearance should not be granted routinely, but in exceptional circumstances taking into account all relevant environmental factors. Where the adverse consequences of denial of ex post facto approval outweigh the consequences of regularization of operations by grant of ex post facto approval, and the establishment concerned otherwise conforms to the requisite pollution norms, ex post facto approval should be given in accordance with law, in strict conformity with the applicable Rules, Regulations and/or Notifications. The deviant industry may be penalised by an imposition of heavy penalty on the principle of polluter pays and the cost of restoration of environment may be recovered from it. 64. The question in this case is, whether a unit contributing to the economy of the country and providing livelihood to hundreds of people, which has been set up pursuant to requisite approvals from the concerned statutory authorities, and has applied for ex post facto EC, should be closed down for the technical irregularity of want of prior environmental clearance, pending the issuance of EC, even though it may not cause pollution and/or may be found to comply with the required norms. The answer to the aforesaid question has to be in the negative, more so when the HSPCB was itself under the misconception that no environment clearance was required for the units in question. HSPCB has in its counter affidavit before the NGT clearly stated that a decision was taken to regularize units such as the Apcolite Yamuna Nagar and Pahwa Yamuna Nagar Units, since requisite approvals had been granted to those units, by the concerned authorities on the misconception that no EC was required. xx xx xx 66. Ex post facto EC should not ordinarily be granted, and certainly not for the asking. At the same time ex post facto clearances and/or approvals cannot be declined with pedantic rigidity, regardless of the consequences of stopping the operations. This Court is of the view that the NGT erred in law in directing that the units cannot be allowed to function till compliance of the statutory mandate. 21. The judgment in Common Cause referred to by Ms. Shenoy is of no help to support her arguments as the question was whether illegal mining can be said to be within the leased area for mining. It was held that illegal mining takes within its fold excess extraction of a mineral over the permissible limit even within the mining lease area under the Mines and Minerals (Development and Regulation) Act, 1957. 22. In Hanuman Laxman Aroskar, this Court held that the EIA notification of the year 2006 demonstrates an increasing awareness of the complexities of the environment and the heightened scrutiny required to ensure its continued sustenance, for today and for generations to come. It embodies a commitment to sustainable development. It was held as under: 56. The 2006 Notification embodies the notion that the development agenda of the nation must be carried out in compliance with norms stipulated for the protection of the environment and its complexities. It serves as a balance between development and protection of the environment: there is no trade-off between the two. The protection of the environment is an essential facet of development. It cannot be reduced to a technical formula. The notification demonstrates an increasing awareness of the complexities of the environment and the heightened scrutiny required to ensure its continued sustenance, for today and for generations to come. It embodies a commitment to sustainable development. In laying down a detailed procedure for the grant of an EC, the 2006 Notification attempts to bridge the perceived gap between the environment and development. 23. In Alembic Pharmaceuticals Limited, the validity of circular dated 14.5.2002 was in question. This Court found that such circular is contrary to the EIA notification of 1994. It was decided by the Ministry that the industrial units which had gone into production without obtaining an EC would have to apply for and obtain an ex- post facto EC. The said judgment has no applicability to the facts of the present case where the Ministry itself is of the opinion that there was an ambiguity in the EIA notification of 2006. Such ambiguity has been removed only when the EIA notification was subsequently amended on 20.7.2022. Therefore, the judgments referred to by Ms. Shenoy are not applicable to the facts of the present case. 24. We are constrained to point out that out of 1689 units in the country, the applicant has chosen the Project Proponent as it appears to be a motivated petition to target the Project Proponent though the Cold Steel Rolling Mills in the country were operating under the same regime. Not only the Project Proponent, but the country also has suffered immensely on account of closure of the unit which was export oriented unit. It may be noticed that the Gujarat State Pollution Control Board has chosen the Project Proponent to serve with a closure notice on 25.6.2021. The unit is lying closed since then. In view of the amendment in the EIA notification dated 20.7.2022, the unit has time to seek Environmental Clearance in terms of the time line mentioned in the notification. Therefore, the order of closure of the unit cannot be sustained.
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concerned statutory authorities should be closed down for the technical irregularity or want of prior Environmental Clearance. This Court held as under:54. The manufacturing units of the Appellants appoint about 8,000 employees and have a huge annual turnover. An establishment contributing to the economy of the country and providing livelihood ought not to be closed down only on the ground of the technical irregularity of not obtaining prior Environmental Clearance irrespective of whether or not the unit actually causes pollution.xx xx xx56. As held by this Court in Electrosteel Steels Limited (supra) ex post facto Environmental Clearance should not ordinarily be granted, and certainly not for the asking. At the same time ex post facto clearances and/or approvals and/or removal of technical irregularities in terms of a Notification under the EP Act cannot be declined with pedantic rigidity, oblivious of the consequences of stopping the operation of mines, running factories and plants.57. The 1986 Act does not prohibit ex post facto Environmental Clearance. Grant of ex post facto EC in accordance with law, in strict compliance with Rules, Regulations, Notifications and/or applicable orders, in appropriate cases, where the projects are in compliance with, or can be made to comply with environment norms, is in our view not impermissible. The Court cannot be oblivious to the economy or the need to protect the livelihood of hundreds of employees and others employed in the project and others dependent on the project, if such projects comply with environmental norms.xx xx xx60. Even though this Court deprecated ex post facto clearances, in Alembic Pharmaceuticals Ltd. (supra), this Court did not direct closure of the units concerned but explored measures to control the damage caused by the industrial units. This Court held:—However, since the expansion has been undertaken and the industry has been functioning, we do not deem it appropriate to order closure of the entire plant as directed by the High Court.xx xx xx63. Ex post facto environmental clearance should not be granted routinely, but in exceptional circumstances taking into account all relevant environmental factors. Where the adverse consequences of denial of ex post facto approval outweigh the consequences of regularization of operations by grant of ex post facto approval, and the establishment concerned otherwise conforms to the requisite pollution norms, ex post facto approval should be given in accordance with law, in strict conformity with the applicable Rules, Regulations and/or Notifications. The deviant industry may be penalised by an imposition of heavy penalty on the principle of polluter pays and the cost of restoration of environment may be recovered from it.64. The question in this case is, whether a unit contributing to the economy of the country and providing livelihood to hundreds of people, which has been set up pursuant to requisite approvals from the concerned statutory authorities, and has applied for ex post facto EC, should be closed down for the technical irregularity of want of prior environmental clearance, pending the issuance of EC, even though it may not cause pollution and/or may be found to comply with the required norms. The answer to the aforesaid question has to be in the negative, more so when the HSPCB was itself under the misconception that no environment clearance was required for the units in question. HSPCB has in its counter affidavit before the NGT clearly stated that a decision was taken to regularize units such as the Apcolite Yamuna Nagar and Pahwa Yamuna Nagar Units, since requisite approvals had been granted to those units, by the concerned authorities on the misconception that no EC was required.xx xx xx66. Ex post facto EC should not ordinarily be granted, and certainly not for the asking. At the same time ex post facto clearances and/or approvals cannot be declined with pedantic rigidity, regardless of the consequences of stopping the operations. This Court is of the view that the NGT erred in law in directing that the units cannot be allowed to function till compliance of the statutory mandate.21. The judgment in Common Cause referred to by Ms. Shenoy is of no help to support her arguments as the question was whether illegal mining can be said to be within the leased area for mining. It was held that illegal mining takes within its fold excess extraction of a mineral over the permissible limit even within the mining lease area under the Mines and Minerals (Development and Regulation) Act, 1957.23. In Alembic Pharmaceuticals Limited, the validity of circular dated 14.5.2002 was in question. This Court found that such circular is contrary to the EIA notification of 1994. It was decided by the Ministry that the industrial units which had gone into production without obtaining an EC would have to apply for and obtain an ex- post facto EC. The said judgment has no applicability to the facts of the present case where the Ministry itself is of the opinion that there was an ambiguity in the EIA notification of 2006. Such ambiguity has been removed only when the EIA notification was subsequently amended on 20.7.2022. Therefore, the judgments referred to by Ms. Shenoy are not applicable to the facts of the present case.24. We are constrained to point out that out of 1689 units in the country, the applicant has chosen the Project Proponent as it appears to be a motivated petition to target the Project Proponent though the Cold Steel Rolling Mills in the country were operating under the same regime. Not only the Project Proponent, but the country also has suffered immensely on account of closure of the unit which was export oriented unit. It may be noticed that the Gujarat State Pollution Control Board has chosen the Project Proponent to serve with a closure notice on 25.6.2021. The unit is lying closed since then. In view of the amendment in the EIA notification dated 20.7.2022, the unit has time to seek Environmental Clearance in terms of the time line mentioned in the notification. Therefore, the order of closure of the unit cannot be sustained.
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The Workmen Of Western India Match Co. Ltd Vs. The Western India Match Co. Ltd., | addition 3% for every 5 pts rise or fall of working class index figure ** Adjusting the existing R. B. with this slab24. It will be clear from this that union had made alternative demands in respect of dearness allowance, one was that the same scale as that for sales office employees should be adopted and the other was variation in three slabs of the present scheme accepting as the basis the working class cost of living index figure. The company refused to make any counter-offer with regard to the primary demand of the appellant-union. But in regard to the alternative demand it made a counter-offer. If we understand Mr. Wasmouth right the respondent-company stood by its counter-offer based on the working class cost of living index figures before the Tribunal even though the conciliation proceedings broke down. During these proceedings this counter-offer was linked with the counter-offer pertaining to grades and scales of pay. Presumably, therefore, the company regarded the package deal not merely as a concession made for putting an end to disputes but also because it regarded it as fair and the financial commitment entailed by it to be within its means. No doubt in the evidence Mr. Wasmouth has said that the respondent-company does not stick to its offer relating to grades and scales of pay. But that would not render what was a fair and reasonable offer during the stage of negotiations, no longer fair and reasonable or necessary. The Tribunal has revised the pay scales on the basis of the respondents offer. If, therefore, dearness allowance is revised on the basis of the respondents offer what would in effect be done would be only that which the respondent-company during the conciliation proceedings had itself offered to do, a thing which was considered to be fair and reasonable and also necessary. In these circumstances we find it difficult to understand the principle on which the Tribunal proceeded in refusing to revise the scales of dearness allowance on the basis of the respondent-companys offer.25. Though, therefore, we reject the contention of the appellant-union that the dearness allowance should be fixed on the same basis as that obtaining in the sales office we think that in view of the stand taken by the respondent-company throughout the proceedings dearness allowance should be revised in accordance with the companys offer. The fact that it made such an offer is indicative of two things: the necessity and propriety of revision of the dearness allowance as well as the ability of the respondent-company to pay higher dearness allowance. It was no doubt contended before us that the offer was made during negotiations and was without prejudice and we should, therefore, keep it out of our mind. But we cannot overlook the fact that Mr. Wasmouth stuck to that offer even after the conciliation proceedings had ended infructuously and thus in effect revived the original offer.26. Mr. Sen, however, argued that on the basis of the decision in Burn and Co. Ltd. v. Their Employees, 1956 SCR 781 : ((S) AIR 1957 SC 38 ) that an award of Industrial Tribunal cannot be re-opened unless it is established that there has been a change in the circumstances on which the award is based and that since there has been no such change the award of 1955 pertaining to dearness allowance ought not to be revised. It is true that an award cannot ordinarily be revised unless there is a change of circumstances. But here, there has been a change of circumstances because cost of living has admittedly gone up since then. This is so notorious a fact that we are entitled to take notice of it. The object of awarding dearness allowance is to neutralise, at least partially, the rise in the cost of living and in the circumstances the factory employees are entitled to say that the old basis needs to be revised. There is thus no substance in Mr. Sens argument.27. On the question of the grades and scales of pay the contention of learned counsel is that the Tribunal has not applied its mind to the question but has mechanically accepted the respondents offer. This statement is not wholly accurate. No doubt the Tribunal has accepted as reasonable the offer which the respondent has made; but it has given reasons for doing so. In its award the Tribunal has stated:"The principal point made in support of the demand is that the grades and scales of pay are too short and that they should be extended with such modifications as may appear necessary in the circumstances of the case."Then after comparing the existing grades with the companys offer the Tribunal observed:"It would appear at a glance at this chart that the existing rates provide for scales of pay in the case of six grades upto 16 years and in the case of one it provides for ten years only. The Unions demand is for extending the scales upto 20 years in place of ten and sixteen years, and both the minimum and maximum limit of the scales of pay would be raised in all cases. The Companys offer except in the case of grade B(1) is much in advance of the existing grades and scales of pay. There are good justifications for revision of the grades and scales of pay, and the Companys offer, in my opinion, should have been accepted by the Union. The revision of the grades and scales of pay as in the companys offer will, to a great extent remove the hardships of the employees, who for the present, must remain satisfied with such revision."It has, therefore, applied its mind to the companys offer and also borne in mind the demand made by the union. Upon consideration of these matters the Tribunal came to the conclusion that the companys offer is a reasonable one. Its finding in this regard is one of fact and cannot be permitted to be challenged in an appeal under Art. 136. | 1[ds]In our opinion, however, it is not open to the respondent-company to raise this contention in so far as revision of pay scales is concerned because in the memorandum of settlement dated May 23, 1958 signed by the representatives of the parties to this appeal it is clearly provided that the revision of scales of pay be referred for adjudication to the same Industrial Tribunal which was dealing with the question of dearnessrecital shows that the respondent was agreeable to refer to the Tribunal not only the issue relating to revision of pay scales but also that dealing with dearness allowance. Further, in para 37 of its written statement the respondent-company clearly accepted the position that the Tribunal had jurisdiction to deal with the issue of dearness allowance. This circumstance precluded the respondent from now objecting to the jurisdiction of the Tribunal. Apart from that we may point out that in its reply dated March 29, 1957 to the charter of demands sent on behalf of the appellant-union it was stated that the previous settlement had not been validly terminated and in answer to that the General Secretary of the Union wrote on April 8, 1957 saying that the various representations made by the union to the respondent and the presentation of the charter of demands amounts to a notice of termination of the settlement. Thus, though no formal notice under S. 19(2) was given this letter can itself be construed as notice within the meaning of that provision. It may be noted that the representation was made long after the expiry of two months from this date. For these reasons we overrule the contention of Mr.may, however, point out that the appellant-union claimed parity with the sales office employees only in the matter of dearness allowance and have referred to the existence of different pay scales in the sales office only in support of their claim for an upward revision of the present pay scales. It is, therefore, not open to learned counsel now to urge that the pay scales also should be the same for the factory employees as for the sales office employees. We shall, therefore, consider the argument based on the ground of unwarranted discrimination only in so far as it relates to the question of dearness allowance.It would, therefore, appear that members of a union like the one of employees of the respondents factory at Alambazar have been dealt with on a different footing from the employees of a sales office in Calcutta, the former being employees of an engineering concern and the latter of a mercantile one.As we have already pointed out the employees in the sales office are governed by the recommendations of the Bengal Chamber of Commerce which the respondent was more or less bound to accept to be in line with other similar establishments and, therefore, the case of the factory employees cannot be equated with that of the sales officesales office being a mercantile office the respondent had to fall in line with other similar establishments and pay to the employees in the sales office the same dearness allowance as other mercantile firms were paying to their employees. In the circumstances the factory employees cannot as of right demand that the benefit of the rates fixed by the Bengal Chamber of Commerce be also given to them though those rates were not intended to be applied to them.It is true that the employees in Alambazar as well as in Calcutta are living within the limits of the Corporation of Calcutta. But that circumstance though relevant is not by itself sufficient to justify payment to them of the same rate of dearness allowance as the sales office employees. We cannot ignore the fact that the employees of other factories situate in that area are not paid dearness allowance at the rates formulated by the Bengal Chamber of Commerce and, therefore, if those rates are adopted by the respondent with respect to the factory employees the existing industrial peace in that region may be destroyed. The tribunal must, therefore, be said to have exercised its discretion properly in not acceding to the appellants demand in thisis not disputed that certain benefits such as those relaing to rations, free quarters, gratuity etc., which are extended to the factory employees are not extended to the sales office employees. What is said, however, is that the sum total of these considered along with the pay and dearness allowance of the factory employees still place them at a disadvantage as compared to the sales office employees. It is true that the sales office employees are, by and large, in a comparatively better position; but that again is due to the fact that recruitment in the two establishments have all along been made on different terms and conditions.21. We do not think that there is any valid reason for compelling employers to offer uniform terms of employment to their employees working in different establishments because various considerations must enter into the question such as the value of their work to the employer, the employers ability to pay, the cost of living, the availability of persons for doing the particular kind of work and so on. Indeed, the Minimum Wages Act itself proceeds on the basis that the employer has large discretion in so far as the most important condition of service is concerned, that is, pay, so long as it is not below the minimum wage prescribed. It is a well-known fact that the biggest employer, the State, does not offer uniform conditions of service to all employees doing work which, broadly speaking, may be called similar.22. Looking at the matter thus we cannot say that the Industrial Tribunal in refusing to extend to the employees of the respondent in the factory in Alambazar the benefit of dearness allowance formulated by the Bengal Chamber of Commerce has contravened any principle of natural justice or any important principle of industrialIt will be clear from this that union had made alternative demands in respect of dearness allowance, one was that the same scale as that for sales office employees should be adopted and the other was variation in three slabs of the present scheme accepting as the basis the working class cost of living index figure. The company refused to make any counter-offer with regard to the primary demand of the appellant-union. But in regard to the alternative demand it made a counter-offer. If we understand Mr. Wasmouth right the respondent-company stood by its counter-offer based on the working class cost of living index figures before the Tribunal even though the conciliation proceedings broke down. During these proceedings this counter-offer was linked with the counter-offer pertaining to grades and scales of pay. Presumably, therefore, the company regarded the package deal not merely as a concession made for putting an end to disputes but also because it regarded it as fair and the financial commitment entailed by it to be within its means. No doubt in the evidence Mr. Wasmouth has said that the respondent-company does not stick to its offer relating to grades and scales of pay. But that would not render what was a fair and reasonable offer during the stage of negotiations, no longer fair and reasonable or necessary. The Tribunal has revised the pay scales on the basis of the respondents offer. If, therefore, dearness allowance is revised on the basis of the respondents offer what would in effect be done would be only that which the respondent-company during the conciliation proceedings had itself offered to do, a thing which was considered to be fair and reasonable and also necessary. In these circumstances we find it difficult to understand the principle on which the Tribunal proceeded in refusing to revise the scales of dearness allowance on the basis of the respondent-companys offer.25. Though, therefore, we reject the contention of the appellant-union that the dearness allowance should be fixed on the same basis as that obtaining in the sales office we think that in view of the stand taken by the respondent-company throughout the proceedings dearness allowance should be revised in accordance with the companys offer. The fact that it made such an offer is indicative of two things: the necessity and propriety of revision of the dearness allowance as well as the ability of the respondent-company to pay higher dearness allowance. It was no doubt contended before us that the offer was made during negotiations and was without prejudice and we should, therefore, keep it out of our mind. But we cannot overlook the fact that Mr. Wasmouth stuck to that offer even after the conciliation proceedings had ended infructuously and thus in effect revived the originalis true that an award cannot ordinarily be revised unless there is a change of circumstances. But here, there has been a change of circumstances because cost of living has admittedly gone up since then. This is so notorious a fact that we are entitled to take notice of it. The object of awarding dearness allowance is to neutralise, at least partially, the rise in the cost of living and in the circumstances the factory employees are entitled to say that the old basis needs to be revised. There is thus no substance in Mr. Sensstatement is not wholly accurate. No doubt the Tribunal has accepted as reasonable the offer which the respondent has made; but it has given reasons for doing so.has, therefore, applied its mind to the companys offer and also borne in mind the demand made by the union. Upon consideration of these matters the Tribunal came to the conclusion that the companys offer is a reasonable one. Its finding in this regard is one of fact and cannot be permitted to be challenged in an appeal under Art. 136. | 1 | 5,482 | 1,747 | ### Instruction:
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addition 3% for every 5 pts rise or fall of working class index figure ** Adjusting the existing R. B. with this slab24. It will be clear from this that union had made alternative demands in respect of dearness allowance, one was that the same scale as that for sales office employees should be adopted and the other was variation in three slabs of the present scheme accepting as the basis the working class cost of living index figure. The company refused to make any counter-offer with regard to the primary demand of the appellant-union. But in regard to the alternative demand it made a counter-offer. If we understand Mr. Wasmouth right the respondent-company stood by its counter-offer based on the working class cost of living index figures before the Tribunal even though the conciliation proceedings broke down. During these proceedings this counter-offer was linked with the counter-offer pertaining to grades and scales of pay. Presumably, therefore, the company regarded the package deal not merely as a concession made for putting an end to disputes but also because it regarded it as fair and the financial commitment entailed by it to be within its means. No doubt in the evidence Mr. Wasmouth has said that the respondent-company does not stick to its offer relating to grades and scales of pay. But that would not render what was a fair and reasonable offer during the stage of negotiations, no longer fair and reasonable or necessary. The Tribunal has revised the pay scales on the basis of the respondents offer. If, therefore, dearness allowance is revised on the basis of the respondents offer what would in effect be done would be only that which the respondent-company during the conciliation proceedings had itself offered to do, a thing which was considered to be fair and reasonable and also necessary. In these circumstances we find it difficult to understand the principle on which the Tribunal proceeded in refusing to revise the scales of dearness allowance on the basis of the respondent-companys offer.25. Though, therefore, we reject the contention of the appellant-union that the dearness allowance should be fixed on the same basis as that obtaining in the sales office we think that in view of the stand taken by the respondent-company throughout the proceedings dearness allowance should be revised in accordance with the companys offer. The fact that it made such an offer is indicative of two things: the necessity and propriety of revision of the dearness allowance as well as the ability of the respondent-company to pay higher dearness allowance. It was no doubt contended before us that the offer was made during negotiations and was without prejudice and we should, therefore, keep it out of our mind. But we cannot overlook the fact that Mr. Wasmouth stuck to that offer even after the conciliation proceedings had ended infructuously and thus in effect revived the original offer.26. Mr. Sen, however, argued that on the basis of the decision in Burn and Co. Ltd. v. Their Employees, 1956 SCR 781 : ((S) AIR 1957 SC 38 ) that an award of Industrial Tribunal cannot be re-opened unless it is established that there has been a change in the circumstances on which the award is based and that since there has been no such change the award of 1955 pertaining to dearness allowance ought not to be revised. It is true that an award cannot ordinarily be revised unless there is a change of circumstances. But here, there has been a change of circumstances because cost of living has admittedly gone up since then. This is so notorious a fact that we are entitled to take notice of it. The object of awarding dearness allowance is to neutralise, at least partially, the rise in the cost of living and in the circumstances the factory employees are entitled to say that the old basis needs to be revised. There is thus no substance in Mr. Sens argument.27. On the question of the grades and scales of pay the contention of learned counsel is that the Tribunal has not applied its mind to the question but has mechanically accepted the respondents offer. This statement is not wholly accurate. No doubt the Tribunal has accepted as reasonable the offer which the respondent has made; but it has given reasons for doing so. In its award the Tribunal has stated:"The principal point made in support of the demand is that the grades and scales of pay are too short and that they should be extended with such modifications as may appear necessary in the circumstances of the case."Then after comparing the existing grades with the companys offer the Tribunal observed:"It would appear at a glance at this chart that the existing rates provide for scales of pay in the case of six grades upto 16 years and in the case of one it provides for ten years only. The Unions demand is for extending the scales upto 20 years in place of ten and sixteen years, and both the minimum and maximum limit of the scales of pay would be raised in all cases. The Companys offer except in the case of grade B(1) is much in advance of the existing grades and scales of pay. There are good justifications for revision of the grades and scales of pay, and the Companys offer, in my opinion, should have been accepted by the Union. The revision of the grades and scales of pay as in the companys offer will, to a great extent remove the hardships of the employees, who for the present, must remain satisfied with such revision."It has, therefore, applied its mind to the companys offer and also borne in mind the demand made by the union. Upon consideration of these matters the Tribunal came to the conclusion that the companys offer is a reasonable one. Its finding in this regard is one of fact and cannot be permitted to be challenged in an appeal under Art. 136.
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not paid dearness allowance at the rates formulated by the Bengal Chamber of Commerce and, therefore, if those rates are adopted by the respondent with respect to the factory employees the existing industrial peace in that region may be destroyed. The tribunal must, therefore, be said to have exercised its discretion properly in not acceding to the appellants demand in thisis not disputed that certain benefits such as those relaing to rations, free quarters, gratuity etc., which are extended to the factory employees are not extended to the sales office employees. What is said, however, is that the sum total of these considered along with the pay and dearness allowance of the factory employees still place them at a disadvantage as compared to the sales office employees. It is true that the sales office employees are, by and large, in a comparatively better position; but that again is due to the fact that recruitment in the two establishments have all along been made on different terms and conditions.21. We do not think that there is any valid reason for compelling employers to offer uniform terms of employment to their employees working in different establishments because various considerations must enter into the question such as the value of their work to the employer, the employers ability to pay, the cost of living, the availability of persons for doing the particular kind of work and so on. Indeed, the Minimum Wages Act itself proceeds on the basis that the employer has large discretion in so far as the most important condition of service is concerned, that is, pay, so long as it is not below the minimum wage prescribed. It is a well-known fact that the biggest employer, the State, does not offer uniform conditions of service to all employees doing work which, broadly speaking, may be called similar.22. Looking at the matter thus we cannot say that the Industrial Tribunal in refusing to extend to the employees of the respondent in the factory in Alambazar the benefit of dearness allowance formulated by the Bengal Chamber of Commerce has contravened any principle of natural justice or any important principle of industrialIt will be clear from this that union had made alternative demands in respect of dearness allowance, one was that the same scale as that for sales office employees should be adopted and the other was variation in three slabs of the present scheme accepting as the basis the working class cost of living index figure. The company refused to make any counter-offer with regard to the primary demand of the appellant-union. But in regard to the alternative demand it made a counter-offer. If we understand Mr. Wasmouth right the respondent-company stood by its counter-offer based on the working class cost of living index figures before the Tribunal even though the conciliation proceedings broke down. During these proceedings this counter-offer was linked with the counter-offer pertaining to grades and scales of pay. Presumably, therefore, the company regarded the package deal not merely as a concession made for putting an end to disputes but also because it regarded it as fair and the financial commitment entailed by it to be within its means. No doubt in the evidence Mr. Wasmouth has said that the respondent-company does not stick to its offer relating to grades and scales of pay. But that would not render what was a fair and reasonable offer during the stage of negotiations, no longer fair and reasonable or necessary. The Tribunal has revised the pay scales on the basis of the respondents offer. If, therefore, dearness allowance is revised on the basis of the respondents offer what would in effect be done would be only that which the respondent-company during the conciliation proceedings had itself offered to do, a thing which was considered to be fair and reasonable and also necessary. In these circumstances we find it difficult to understand the principle on which the Tribunal proceeded in refusing to revise the scales of dearness allowance on the basis of the respondent-companys offer.25. Though, therefore, we reject the contention of the appellant-union that the dearness allowance should be fixed on the same basis as that obtaining in the sales office we think that in view of the stand taken by the respondent-company throughout the proceedings dearness allowance should be revised in accordance with the companys offer. The fact that it made such an offer is indicative of two things: the necessity and propriety of revision of the dearness allowance as well as the ability of the respondent-company to pay higher dearness allowance. It was no doubt contended before us that the offer was made during negotiations and was without prejudice and we should, therefore, keep it out of our mind. But we cannot overlook the fact that Mr. Wasmouth stuck to that offer even after the conciliation proceedings had ended infructuously and thus in effect revived the originalis true that an award cannot ordinarily be revised unless there is a change of circumstances. But here, there has been a change of circumstances because cost of living has admittedly gone up since then. This is so notorious a fact that we are entitled to take notice of it. The object of awarding dearness allowance is to neutralise, at least partially, the rise in the cost of living and in the circumstances the factory employees are entitled to say that the old basis needs to be revised. There is thus no substance in Mr. Sensstatement is not wholly accurate. No doubt the Tribunal has accepted as reasonable the offer which the respondent has made; but it has given reasons for doing so.has, therefore, applied its mind to the companys offer and also borne in mind the demand made by the union. Upon consideration of these matters the Tribunal came to the conclusion that the companys offer is a reasonable one. Its finding in this regard is one of fact and cannot be permitted to be challenged in an appeal under Art. 136.
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Kashmira Singh Vs. State of Punjab | Fazal Ali, J.This appeal by special leave is directed against the judgment of the Punjab and Haryana High Court convicting the appellant under Section 302/34, IPC and sentencing him to life imprisonment. The appellant was also convicted under Section 323, IPC and sentenced to six months rigorous imprisonment.2. The facts of the case have been detailed in the judgment of the High Court and that of the Sessions Judge and it is not necessary for us to repeat the same all over again. Appearing in support of the appeal Mr. Anwar Ahmed submitted that on the proved facts, no offence under Section 302/34, has been made out in this case and the Sessions Judge was right in not convicting the appellant under Section 302/34. From the findings of facts, given by the two Courts, it appears that the murder of the deceased Joginder Singh was a pre-planned one in which all the three accused including the appellant participate equally. To begin with, the appellants gave a challenge to Joginder Singh and after returning to their house they re-appeared on the scene variously armed, two of them with guns and the appellant with a gandasi. They remained present at the time when the fatal blow was given to the deceased in the shape of a gun shot injury fired by Tarlok Singh hitting the abdomen. Immediately thereafter, the appellant Kashmira Singh assaulted Mohinder Singh with gandasi. Thereafter, the three accused left together. The circumstances narrated above, clearly disclose that all the three accused were animated by a common intention to kill the deceased. The High Court rightly pointed out that in these tell-tale circumstances, there was no question of the non-applicability of Section 34 of the IPC. The Sessions Judge appears to have committed an error of law in not applying Section 34 mainly because the appellant Kashmira Singh had assaulted Mohinder Singh with the blunt portion of the gandasi. This was a separate and individual act of Kashmira Singh which amounted to an offence under Section 323 for which he has been convicted, and this could not be taken into consideration by the Sessions Judge for the purpose of assessing the intention of Kashmira Singh regarding the gun shot injury given to him by Tarlok Singh. What the learned Sessions Judge missed was that the evidence clearly disclosed that there was a prior meeting of minds between the three accused in which it was decided to kill the deceased Joginder Singh and in pursuance of this pre-concerted plan all the three went away together, armed themselves, arrived at the scene of occurrence together and one of them delivered a gun shot injury. The appellant did not protest against the act of Tarlok Singh but quietly submitted and acquiesced in the same. Thereafter all the three went together. Thus, all the essential conditions for the presence of a common intention were clearly proved in this case and the High Court was right in holding that this was a clear case in which the appellant had shared the common intention to murder the deceased Joginder Singh with the other accused. The High Court has referred to a number of authorities and decisions of this Court which have explained the applicability of Section 34. We, however, cannot find a clearer case of the applicability of Section 34 than this. In these circumstances, therefore, the contention raised by Mr. Anwar Ahmed, is hereby overruled.3. It was submitted by Mr. Ahmed that the other two accused, namely Tarlok Singh and Satnam Singh who also had been convicted to imprisonment for life have come out of jail as a substantial part of their sentences has been remitted by the Government. Indeed if this is so then the Government will consider the desirability of remitting the sentence of the appellant also, whose case is in no way different from those of the other accused, whose sentences have been remitted. | 0[ds]We, however, cannot find a clearer case of the applicability of Section 34 than this. In these circumstances, therefore, the contention raised by Mr. Anwar Ahmed, is hereby overruled.3. It was submitted by Mr. Ahmed that the other two accused, namely Tarlok Singh and Satnam Singh who also had been convicted to imprisonment for life have come out of jail as a substantial part of their sentences has been remitted by the Government. Indeed if this is so then the Government will consider the desirability of remitting the sentence of the appellant also, whose case is in no way different from those of the other accused, whose sentences have been remitted. | 0 | 700 | 128 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
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Fazal Ali, J.This appeal by special leave is directed against the judgment of the Punjab and Haryana High Court convicting the appellant under Section 302/34, IPC and sentencing him to life imprisonment. The appellant was also convicted under Section 323, IPC and sentenced to six months rigorous imprisonment.2. The facts of the case have been detailed in the judgment of the High Court and that of the Sessions Judge and it is not necessary for us to repeat the same all over again. Appearing in support of the appeal Mr. Anwar Ahmed submitted that on the proved facts, no offence under Section 302/34, has been made out in this case and the Sessions Judge was right in not convicting the appellant under Section 302/34. From the findings of facts, given by the two Courts, it appears that the murder of the deceased Joginder Singh was a pre-planned one in which all the three accused including the appellant participate equally. To begin with, the appellants gave a challenge to Joginder Singh and after returning to their house they re-appeared on the scene variously armed, two of them with guns and the appellant with a gandasi. They remained present at the time when the fatal blow was given to the deceased in the shape of a gun shot injury fired by Tarlok Singh hitting the abdomen. Immediately thereafter, the appellant Kashmira Singh assaulted Mohinder Singh with gandasi. Thereafter, the three accused left together. The circumstances narrated above, clearly disclose that all the three accused were animated by a common intention to kill the deceased. The High Court rightly pointed out that in these tell-tale circumstances, there was no question of the non-applicability of Section 34 of the IPC. The Sessions Judge appears to have committed an error of law in not applying Section 34 mainly because the appellant Kashmira Singh had assaulted Mohinder Singh with the blunt portion of the gandasi. This was a separate and individual act of Kashmira Singh which amounted to an offence under Section 323 for which he has been convicted, and this could not be taken into consideration by the Sessions Judge for the purpose of assessing the intention of Kashmira Singh regarding the gun shot injury given to him by Tarlok Singh. What the learned Sessions Judge missed was that the evidence clearly disclosed that there was a prior meeting of minds between the three accused in which it was decided to kill the deceased Joginder Singh and in pursuance of this pre-concerted plan all the three went away together, armed themselves, arrived at the scene of occurrence together and one of them delivered a gun shot injury. The appellant did not protest against the act of Tarlok Singh but quietly submitted and acquiesced in the same. Thereafter all the three went together. Thus, all the essential conditions for the presence of a common intention were clearly proved in this case and the High Court was right in holding that this was a clear case in which the appellant had shared the common intention to murder the deceased Joginder Singh with the other accused. The High Court has referred to a number of authorities and decisions of this Court which have explained the applicability of Section 34. We, however, cannot find a clearer case of the applicability of Section 34 than this. In these circumstances, therefore, the contention raised by Mr. Anwar Ahmed, is hereby overruled.3. It was submitted by Mr. Ahmed that the other two accused, namely Tarlok Singh and Satnam Singh who also had been convicted to imprisonment for life have come out of jail as a substantial part of their sentences has been remitted by the Government. Indeed if this is so then the Government will consider the desirability of remitting the sentence of the appellant also, whose case is in no way different from those of the other accused, whose sentences have been remitted.
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We, however, cannot find a clearer case of the applicability of Section 34 than this. In these circumstances, therefore, the contention raised by Mr. Anwar Ahmed, is hereby overruled.3. It was submitted by Mr. Ahmed that the other two accused, namely Tarlok Singh and Satnam Singh who also had been convicted to imprisonment for life have come out of jail as a substantial part of their sentences has been remitted by the Government. Indeed if this is so then the Government will consider the desirability of remitting the sentence of the appellant also, whose case is in no way different from those of the other accused, whose sentences have been remitted.
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Devi Marine Food Exports Limited, Madras Vs. Goa Meat Complex Limited, Panaji | others, JT 1992 (2) SC 116 . It was urged that what is involved is only a commercial interest and, therefore, intervention be not permitted.( 9 ) IT may be mentioned in the first instance that there are two orders in the field, the first one is dated 2nd July, 1993 by which Writ Petition no. 79/1993 of Allana was dismissed and Supreme Court upheld the decision except that M/s. Allana was permitted to work out the contract by an extention of one year going upto 8th April, 1994 The tenders could not be opened soon after the High Court order as a result of stay and thereafter as the matter was seisin by the Supreme Court. The second order is dated 24th March, 1994, which we have already extracted above. This order makes it amply clear as to what made this Court direct Meat Complex to record fresh enhanced offers and prepare separate chart of the same. This Court was proved right as finally it transpires that M/s. Anjaneya offered a sum as high as Rs. 3,09,42,000/- as against the highest tender bid of Rs. 1,81,00,000/ -. Viewed thus it is not possible to entertain how M/s. Ahmed and Company can now urge in Writ Petition No. 168 of 1994 that they had legitimate expectation because their bid was the highest in the tender. The second aspect is that M/s. Ahmed and Company did not even attend the opening of the tenders or to give fresh enhanced offers oa 25th March, 1994 despite notice to that effect. On the contrary they wrote to the Meat Complex by their letter of 24th March, 1994 representing that meat Complex can proceed in the matter in their absence There is not even a reference to this letter in the petition. ( 10 ) INSOFAR as M/s. 1. Ahmed and Co. and M/s. A1-Quresh are concerned it is common ground that they never bidded when the tenders were invited in March, 1993. Their grievance that M/s. Devi Marine, who had not been a tenderer earlier was allowed to offer enhanced offers on the ground of discrimination must fail for two reasons. The first being that m/s Devi Marine came in a petition before the opening of the tenders scheduled for 25th March, 1994 and that is how this Court felt that their bid should be recorded. In the second place from the chart already produced though Devi Marine made an offer, the same did not reach any where near the highest offer of M/s. Anjaneya with the result their participation was practically a non entity. In any case Counsel for the petitioners M/s. Devi Marine have no grievance to make any further. ( 11 ) A cudgel was taken that finally fresh bids were invited pursuant to this Courts order dated 24th March, 1994 and this being so, there is nothing wrong if the Court now directs a fresh auction for the same reason so that everybody can participate so as to secure large offers.( 12 ) WE are unable to agree with the submissions nor we are enamoured by the same. We will presently point out that by our order dated 24th March, 1994 we merely directed Meat Complex to record the bids pursuant to the tenders and also to take fresh enhanced offers and thereafter take the necessary decision in the matter according to law. The meat Complex by its decision at the Board meeting held on 18th April, 1994 resolved to accept the highest enhanced rental offer of Rs. 3,09,42,000 of M/s. Anjaneya. The decision to accept the highest offer is by the Meat complex itself. The proceedings of the meeting dated 18th April, 1994 suggest that the Meat Complex was aware that fresh Writ Petitions, namely, 169 of 1994 and 173 of 1994 have been filed and even highest offers than the one made by M/s. Anjaneya had been made. Despite knowing this when the Meat Complex has accepted the offer of M/s. Anjaneya from amongst the offers restricted to earlier tenderers, no doubt M/s. Devi marine was also given a chance, though without any effect, in our view nothing can be faulted with such decision. The Meat Complex did not decide to call for fresh tenders. It must be also borne in mind that the procedure adopted by the Meat Complex in inviting all old tenderers and allowing them to give sealed single enhanced offer was reasonable and fair to all. Merely because some parties today come with some higher offer is no ground to frustrate the decision of the Meat Complex and the orders of this Court more particularly when M/s. Allanas petition was disposed of. The enhanced offers were known to all on 25th March, 1994, The three petitions 168 of 1994, 169 of 1994 and 173 of 1994 were instituted after m/s. Anjaneyas highest offer of Rs. 3,09,42,000/- was made known. At any rate nothing can be faulted with the decision of the Meat Complex viz. , commercial transaction taken by the Board Members presided over by the chairman, who is no less than the Chief Minister himself. ( 13 ) SHRI Manohar, learned Counsel, who appeared for the parties, who sought intervention is right when he says that Courts cannot be made instruments at the hands of the litigants. He also rightly mentioned that no mala fides are imputed to Meal Complex. ( 14 ) PETITIONERS in new petitions indeed alleged that M/s. Devi Marine and M/s. Anjaneya are none other than M/s. Allana but then as against this it is alleged on the other side that the fresh petitioners are none other than M/s. Mac Donald. It is indeed true that Shri Zaiwalla did mention that M/s. I. Ahmed is not connected with either. ( 15 ) WE think a final curtain must be drawn on this abattoir at this stage. From 8th April, 1994 the Complex is losing nearly Rs. 1 lakh per day which must also halt as early as possible. | 0[ds]9 ) IT may be mentioned in the first instance that there are two orders in the field, the first one is dated 2nd July, 1993 by which Writ Petition no. 79/1993 of Allana was dismissed and Supreme Court upheld the decision except that M/s. Allana was permitted to work out the contract by an extention of one year going upto 8th April, 1994 The tenders could not be opened soon after the High Court order as a result of stay and thereafter as the matter was seisin by the Supreme Court. The second order is dated 24th March, 1994, which we have already extracted above. This order makes it amply clear as to what made this Court direct Meat Complex to record fresh enhanced offers and prepare separate chart of the same. This Court was proved right as finally it transpires that M/s. Anjaneya offered a sum as high as Rs. 3,09,42,000/as against the highest tender bid of Rs.. Viewed thus it is not possible to entertain how M/s. Ahmed and Company can now urge in Writ Petition No. 168 of 1994 that they had legitimate expectation because their bid was the highest in the tender. The second aspect is that M/s. Ahmed and Company did not even attend the opening of the tenders or to give fresh enhanced offers oa 25th March, 1994 despite notice to that effect. On the contrary they wrote to the Meat Complex by their letter of 24th March, 1994 representing that meat Complex can proceed in the matter in their absence There is not even a reference to this letter in the10 ) INSOFAR as M/s. 1. Ahmed and Co. and M/s.are concerned it is common ground that they never bidded when the tenders were invited in March, 1993. Their grievance that M/s. Devi Marine, who had not been a tenderer earlier was allowed to offer enhanced offers on the ground of discrimination must fail for two reasons. The first being that m/s Devi Marine came in a petition before the opening of the tenders scheduled for 25th March, 1994 and that is how this Court felt that their bid should be recorded. In the second place from the chart already produced though Devi Marine made an offer, the same did not reach any where near the highest offer of M/s. Anjaneya with the result their participation was practically a non entity. In any case Counsel for the petitioners M/s. Devi Marine have no grievance to make any11 ) A cudgel was taken that finally fresh bids were invited pursuant to this Courts order dated 24th March, 1994 and this being so, there is nothing wrong if the Court now directs a fresh auction for the same reason so that everybody can participate so as to secure large offers.( 12 ) WE are unable to agree with the submissions nor we are enamoured by the same. We will presently point out that by our order dated 24th March, 1994 we merely directed Meat Complex to record the bids pursuant to the tenders and also to take fresh enhanced offers and thereafter take the necessary decision in the matter according to law. The meat Complex by its decision at the Board meeting held on 18th April, 1994 resolved to accept the highest enhanced rental offer of Rs. 3,09,42,000 of M/s. Anjaneya. The decision to accept the highest offer is by the Meat complex itself. The proceedings of the meeting dated 18th April, 1994 suggest that the Meat Complex was aware that fresh Writ Petitions, namely, 169 of 1994 and 173 of 1994 have been filed and even highest offers than the one made by M/s. Anjaneya had been made. Despite knowing this when the Meat Complex has accepted the offer of M/s. Anjaneya from amongst the offers restricted to earlier tenderers, no doubt M/s. Devi marine was also given a chance, though without any effect, in our view nothing can be faulted with such decision. The Meat Complex did not decide to call for fresh tenders. It must be also borne in mind that the procedure adopted by the Meat Complex in inviting all old tenderers and allowing them to give sealed single enhanced offer was reasonable and fair to all. Merely because some parties today come with some higher offer is no ground to frustrate the decision of the Meat Complex and the orders of this Court more particularly when M/s. Allanas petition was disposed of. The enhanced offers were known to all on 25th March, 1994, The three petitions 168 of 1994, 169 of 1994 and 173 of 1994 were instituted after m/s. Anjaneyas highest offer of Rs. 3,09,42,000/was made known. At any rate nothing can be faulted with the decision of the Meat Complex viz. , commercial transaction taken by the Board Members presided over by the chairman, who is no less than the Chief Minister14 ) PETITIONERS in new petitions indeed alleged that M/s. Devi Marine and M/s. Anjaneya are none other than M/s. Allana but then as against this it is alleged on the other side that the fresh petitioners are none other than M/s. Mac Donald. It is indeed true that Shri Zaiwalla did mention that M/s. I. Ahmed is not connected with15 ) WE think a final curtain must be drawn on this abattoir at this stage. From 8th April, 1994 the Complex is losing nearly Rs. 1 lakh per day which must also halt as early as | 0 | 3,264 | 992 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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others, JT 1992 (2) SC 116 . It was urged that what is involved is only a commercial interest and, therefore, intervention be not permitted.( 9 ) IT may be mentioned in the first instance that there are two orders in the field, the first one is dated 2nd July, 1993 by which Writ Petition no. 79/1993 of Allana was dismissed and Supreme Court upheld the decision except that M/s. Allana was permitted to work out the contract by an extention of one year going upto 8th April, 1994 The tenders could not be opened soon after the High Court order as a result of stay and thereafter as the matter was seisin by the Supreme Court. The second order is dated 24th March, 1994, which we have already extracted above. This order makes it amply clear as to what made this Court direct Meat Complex to record fresh enhanced offers and prepare separate chart of the same. This Court was proved right as finally it transpires that M/s. Anjaneya offered a sum as high as Rs. 3,09,42,000/- as against the highest tender bid of Rs. 1,81,00,000/ -. Viewed thus it is not possible to entertain how M/s. Ahmed and Company can now urge in Writ Petition No. 168 of 1994 that they had legitimate expectation because their bid was the highest in the tender. The second aspect is that M/s. Ahmed and Company did not even attend the opening of the tenders or to give fresh enhanced offers oa 25th March, 1994 despite notice to that effect. On the contrary they wrote to the Meat Complex by their letter of 24th March, 1994 representing that meat Complex can proceed in the matter in their absence There is not even a reference to this letter in the petition. ( 10 ) INSOFAR as M/s. 1. Ahmed and Co. and M/s. A1-Quresh are concerned it is common ground that they never bidded when the tenders were invited in March, 1993. Their grievance that M/s. Devi Marine, who had not been a tenderer earlier was allowed to offer enhanced offers on the ground of discrimination must fail for two reasons. The first being that m/s Devi Marine came in a petition before the opening of the tenders scheduled for 25th March, 1994 and that is how this Court felt that their bid should be recorded. In the second place from the chart already produced though Devi Marine made an offer, the same did not reach any where near the highest offer of M/s. Anjaneya with the result their participation was practically a non entity. In any case Counsel for the petitioners M/s. Devi Marine have no grievance to make any further. ( 11 ) A cudgel was taken that finally fresh bids were invited pursuant to this Courts order dated 24th March, 1994 and this being so, there is nothing wrong if the Court now directs a fresh auction for the same reason so that everybody can participate so as to secure large offers.( 12 ) WE are unable to agree with the submissions nor we are enamoured by the same. We will presently point out that by our order dated 24th March, 1994 we merely directed Meat Complex to record the bids pursuant to the tenders and also to take fresh enhanced offers and thereafter take the necessary decision in the matter according to law. The meat Complex by its decision at the Board meeting held on 18th April, 1994 resolved to accept the highest enhanced rental offer of Rs. 3,09,42,000 of M/s. Anjaneya. The decision to accept the highest offer is by the Meat complex itself. The proceedings of the meeting dated 18th April, 1994 suggest that the Meat Complex was aware that fresh Writ Petitions, namely, 169 of 1994 and 173 of 1994 have been filed and even highest offers than the one made by M/s. Anjaneya had been made. Despite knowing this when the Meat Complex has accepted the offer of M/s. Anjaneya from amongst the offers restricted to earlier tenderers, no doubt M/s. Devi marine was also given a chance, though without any effect, in our view nothing can be faulted with such decision. The Meat Complex did not decide to call for fresh tenders. It must be also borne in mind that the procedure adopted by the Meat Complex in inviting all old tenderers and allowing them to give sealed single enhanced offer was reasonable and fair to all. Merely because some parties today come with some higher offer is no ground to frustrate the decision of the Meat Complex and the orders of this Court more particularly when M/s. Allanas petition was disposed of. The enhanced offers were known to all on 25th March, 1994, The three petitions 168 of 1994, 169 of 1994 and 173 of 1994 were instituted after m/s. Anjaneyas highest offer of Rs. 3,09,42,000/- was made known. At any rate nothing can be faulted with the decision of the Meat Complex viz. , commercial transaction taken by the Board Members presided over by the chairman, who is no less than the Chief Minister himself. ( 13 ) SHRI Manohar, learned Counsel, who appeared for the parties, who sought intervention is right when he says that Courts cannot be made instruments at the hands of the litigants. He also rightly mentioned that no mala fides are imputed to Meal Complex. ( 14 ) PETITIONERS in new petitions indeed alleged that M/s. Devi Marine and M/s. Anjaneya are none other than M/s. Allana but then as against this it is alleged on the other side that the fresh petitioners are none other than M/s. Mac Donald. It is indeed true that Shri Zaiwalla did mention that M/s. I. Ahmed is not connected with either. ( 15 ) WE think a final curtain must be drawn on this abattoir at this stage. From 8th April, 1994 the Complex is losing nearly Rs. 1 lakh per day which must also halt as early as possible.
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9 ) IT may be mentioned in the first instance that there are two orders in the field, the first one is dated 2nd July, 1993 by which Writ Petition no. 79/1993 of Allana was dismissed and Supreme Court upheld the decision except that M/s. Allana was permitted to work out the contract by an extention of one year going upto 8th April, 1994 The tenders could not be opened soon after the High Court order as a result of stay and thereafter as the matter was seisin by the Supreme Court. The second order is dated 24th March, 1994, which we have already extracted above. This order makes it amply clear as to what made this Court direct Meat Complex to record fresh enhanced offers and prepare separate chart of the same. This Court was proved right as finally it transpires that M/s. Anjaneya offered a sum as high as Rs. 3,09,42,000/as against the highest tender bid of Rs.. Viewed thus it is not possible to entertain how M/s. Ahmed and Company can now urge in Writ Petition No. 168 of 1994 that they had legitimate expectation because their bid was the highest in the tender. The second aspect is that M/s. Ahmed and Company did not even attend the opening of the tenders or to give fresh enhanced offers oa 25th March, 1994 despite notice to that effect. On the contrary they wrote to the Meat Complex by their letter of 24th March, 1994 representing that meat Complex can proceed in the matter in their absence There is not even a reference to this letter in the10 ) INSOFAR as M/s. 1. Ahmed and Co. and M/s.are concerned it is common ground that they never bidded when the tenders were invited in March, 1993. Their grievance that M/s. Devi Marine, who had not been a tenderer earlier was allowed to offer enhanced offers on the ground of discrimination must fail for two reasons. The first being that m/s Devi Marine came in a petition before the opening of the tenders scheduled for 25th March, 1994 and that is how this Court felt that their bid should be recorded. In the second place from the chart already produced though Devi Marine made an offer, the same did not reach any where near the highest offer of M/s. Anjaneya with the result their participation was practically a non entity. In any case Counsel for the petitioners M/s. Devi Marine have no grievance to make any11 ) A cudgel was taken that finally fresh bids were invited pursuant to this Courts order dated 24th March, 1994 and this being so, there is nothing wrong if the Court now directs a fresh auction for the same reason so that everybody can participate so as to secure large offers.( 12 ) WE are unable to agree with the submissions nor we are enamoured by the same. We will presently point out that by our order dated 24th March, 1994 we merely directed Meat Complex to record the bids pursuant to the tenders and also to take fresh enhanced offers and thereafter take the necessary decision in the matter according to law. The meat Complex by its decision at the Board meeting held on 18th April, 1994 resolved to accept the highest enhanced rental offer of Rs. 3,09,42,000 of M/s. Anjaneya. The decision to accept the highest offer is by the Meat complex itself. The proceedings of the meeting dated 18th April, 1994 suggest that the Meat Complex was aware that fresh Writ Petitions, namely, 169 of 1994 and 173 of 1994 have been filed and even highest offers than the one made by M/s. Anjaneya had been made. Despite knowing this when the Meat Complex has accepted the offer of M/s. Anjaneya from amongst the offers restricted to earlier tenderers, no doubt M/s. Devi marine was also given a chance, though without any effect, in our view nothing can be faulted with such decision. The Meat Complex did not decide to call for fresh tenders. It must be also borne in mind that the procedure adopted by the Meat Complex in inviting all old tenderers and allowing them to give sealed single enhanced offer was reasonable and fair to all. Merely because some parties today come with some higher offer is no ground to frustrate the decision of the Meat Complex and the orders of this Court more particularly when M/s. Allanas petition was disposed of. The enhanced offers were known to all on 25th March, 1994, The three petitions 168 of 1994, 169 of 1994 and 173 of 1994 were instituted after m/s. Anjaneyas highest offer of Rs. 3,09,42,000/was made known. At any rate nothing can be faulted with the decision of the Meat Complex viz. , commercial transaction taken by the Board Members presided over by the chairman, who is no less than the Chief Minister14 ) PETITIONERS in new petitions indeed alleged that M/s. Devi Marine and M/s. Anjaneya are none other than M/s. Allana but then as against this it is alleged on the other side that the fresh petitioners are none other than M/s. Mac Donald. It is indeed true that Shri Zaiwalla did mention that M/s. I. Ahmed is not connected with15 ) WE think a final curtain must be drawn on this abattoir at this stage. From 8th April, 1994 the Complex is losing nearly Rs. 1 lakh per day which must also halt as early as
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D.C.M. Ltd. and Anr Vs. Union of India and Anr | for necessary eligibility certificate for additional free-sale sugar entitlements as per the incentives announced. The respondents allowed the incentives as per the revised 1980 scheme. However, the appellants asserted that the incentives as per the scheme announced in the year 1975 must be given to them. The respondents did not accede to this claim of the appellants.2. Aggrieved by that they moved the High Court for the issue of a writ of mandamus directing the first respondent to issue a supplementary eligibility certificate for 1.63 lakh quintals of additional freesale sugar entitlement over and above the entitlement declared by the Central Government on the basis of revised 1980 scheme for the year 1980-81 to 1982-83. In addition to that, the appellants also prayed for a writ of mandamus directing the first respondent to issue a further eligibility certificate determining the amount of additional free-sale entitlement to the appellants sugar factory for the year 1983-84 and 1984-85 under the incentive scheme of the year 1975.3. The High Court rejecting the claim of the appellants dismissed the writ petition. 4. Mr. Shanti Bhushan, learned Senior counsel appearing for the appellants contended that the Principle of Promissory Estoppel squarely applies to the facts of this case. According to him, the new scheme announced in the year 1980 cannot be applied to the appellants merely because there was no control for the sale of sugar by the producers for a short period. It is further contended that the appellants had spent huge amounts towards the expansion of sugar factories at two places on the incentives announced in the year 1975 and therefore, they cannot be denied on account of the decontrol of the sugar for a short period. In support of that argument, he placed heavy reliance on a judgment of this Court in Union of India & Ors. vs. Godfrey Philips India Ltd. (1985 4 SCC 369 ). On the other hand, learned counsel appearing for the respondents placing reliance on the decontrol order submitted that during the period when there was no control of sale of sugar by the producers, the producers were enabled to sell their hundred percent of that production in the open market and the benefit flowing from such decontrol changed the whole complex and, therefore, the appellants cannot be allowed to contend that the Government cannot change the scheme. 5. We have considered the rival submissions. It is well- settled that the doctrine of promissory estoppel represents a principle evolved by equity to avoid injustice and, though commonly named promissory estoppel, it is neither in the realm of contract nor in the realm of estoppel. The basis of this doctrine is the inter--position of equity which has always, proved to its form, stepped in to mitigate the rigour of strict law. It is equally true that the doctrine of promissory estoppel is not limited in its application only to defence but it can also found a cause of action. This doctrine is applicable against the Government in the exercise of its governmental public or executive functions and the doctrine of executive necessity or freedom of future executive action, cannot be invoked to defeat the applicability of this doctrine. It is further well- established that the doctrine of promissory estoppel must yield when the equity so require. If it can be shown by the Government or public authority that having regard to the facts as they have transpired, it would be unequitable to hold the Government or public authority to the promise or representation made by it, the court would not raise an equity in favour of the person to whom the promise or representation is made and enforce the promise or representation against the Government or public authority. The doctrine of promissory estoppel would be displaced in such a case because on the facts, equity would not require that the Government or public authority should be held bound by the promise or representation made by it (vide 1985 4 SCC 369 (supra).6. In this case we have found that the Government before refusing the incentive scheme of the year 1975 have taken into account various factors including the decontrol of sale of sugar for the period from 16.8.78 to 17.12.79. Further if the prayer of the appellants were to be allowed, several lakhs of quintals of sugar will have to be released as incentive levy-free sugar which otherwise meant for public distribution system. We agree with the learned Judges of the High Court when they observed that the petitioners who availed of the resulting benefit due to decontrol cannot in all fairness lay claim to be restored the benefit of the incentives in full now over again though the basic premise became non-existent. The benefit under the subsequent scheme in force from November 15, 1980 has already been accorded to them in full measure.The High Court also noticed another important factor to decline the relief prayed for by the appellants, namely, that the appellant company had applied for a grant of the licence in the year 1975, had mentioned in the licence application that the entire expansion would be done by the said company at its own expense. The company was granted licence in February, 1975 and that time nobody could imagine about the incentive scheme which was announced on December 6, 1975. The appellants, therefore, cannot argue that the scheme announced induced them to undertake the expansion of which the licence had been received by it in February, 1975. The expansion carried out by the appellants in pursuance of the licence issued in February, 1975 was independent and had nothing to do with the incentive announced in December, 1975 as observed by the High Court.7. Taking all these factors into consideration, we have no doubt that on the facts of this case, the Principle of Promissory Estoppel has no application at all. The judgment relied on by the learned Senior counsel for the appellants, namely, Godfrey Philips case supports the case of the respondents on facts. 8. | 0[ds]5. We have considered the rival submissions. It is well- settled that the doctrine of promissory estoppel represents a principle evolved by equity to avoid injustice and, though commonly named promissory estoppel, it is neither in the realm of contract nor in the realm of estoppel. The basis of this doctrine is the inter--position of equity which has always, proved to its form, stepped in to mitigate the rigour of strict law. It is equally true that the doctrine of promissory estoppel is not limited in its application only to defence but it can also found a cause of action. This doctrine is applicable against the Government in the exercise of its governmental public or executive functions and the doctrine of executive necessity or freedom of future executive action, cannot be invoked to defeat the applicability of this doctrine. It is further well- established that the doctrine of promissory estoppel must yield when the equity so require. If it can be shown by the Government or public authority that having regard to the facts as they have transpired, it would be unequitable to hold the Government or public authority to the promise or representation made by it, the court would not raise an equity in favour of the person to whom the promise or representation is made and enforce the promise or representation against the Government or public authority. The doctrine of promissory estoppel would be displaced in such a case because on the facts, equity would not require that the Government or public authority should be held bound by the promise or representation made by it (vide 1985 4 SCC 369 (supra).6. In this case we have found that the Government before refusing the incentive scheme of the year 1975 have taken into account various factors including the decontrol of sale of sugar for the period from 16.8.78 to 17.12.79. Further if the prayer of the appellants were to be allowed, several lakhs of quintals of sugar will have to be released as incentive levy-free sugar which otherwise meant for public distribution system. We agree with the learned Judges of the High Court when they observed that the petitioners who availed of the resulting benefit due to decontrol cannot in all fairness lay claim to be restored the benefit of the incentives in full now over again though the basic premise became non-existent. The benefit under the subsequent scheme in force from November 15, 1980 has already been accorded to them in full measure.The High Court also noticed another important factor to decline the relief prayed for by the appellants, namely, that the appellant company had applied for a grant of the licence in the year 1975, had mentioned in the licence application that the entire expansion would be done by the said company at its own expense. The company was granted licence in February, 1975 and that time nobody could imagine about the incentive scheme which was announced on December 6, 1975. The appellants, therefore, cannot argue that the scheme announced induced them to undertake the expansion of which the licence had been received by it in February, 1975. The expansion carried out by the appellants in pursuance of the licence issued in February, 1975 was independent and had nothing to do with the incentive announced in December, 1975 as observed by the High Court.7. Taking all these factors into consideration, we have no doubt that on the facts of this case, the Principle of Promissory Estoppel has no application at all. The judgment relied on by the learned Senior counsel for the appellants, namely, Godfrey Philips case supports the case of the respondents on facts. | 0 | 1,515 | 663 | ### Instruction:
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for necessary eligibility certificate for additional free-sale sugar entitlements as per the incentives announced. The respondents allowed the incentives as per the revised 1980 scheme. However, the appellants asserted that the incentives as per the scheme announced in the year 1975 must be given to them. The respondents did not accede to this claim of the appellants.2. Aggrieved by that they moved the High Court for the issue of a writ of mandamus directing the first respondent to issue a supplementary eligibility certificate for 1.63 lakh quintals of additional freesale sugar entitlement over and above the entitlement declared by the Central Government on the basis of revised 1980 scheme for the year 1980-81 to 1982-83. In addition to that, the appellants also prayed for a writ of mandamus directing the first respondent to issue a further eligibility certificate determining the amount of additional free-sale entitlement to the appellants sugar factory for the year 1983-84 and 1984-85 under the incentive scheme of the year 1975.3. The High Court rejecting the claim of the appellants dismissed the writ petition. 4. Mr. Shanti Bhushan, learned Senior counsel appearing for the appellants contended that the Principle of Promissory Estoppel squarely applies to the facts of this case. According to him, the new scheme announced in the year 1980 cannot be applied to the appellants merely because there was no control for the sale of sugar by the producers for a short period. It is further contended that the appellants had spent huge amounts towards the expansion of sugar factories at two places on the incentives announced in the year 1975 and therefore, they cannot be denied on account of the decontrol of the sugar for a short period. In support of that argument, he placed heavy reliance on a judgment of this Court in Union of India & Ors. vs. Godfrey Philips India Ltd. (1985 4 SCC 369 ). On the other hand, learned counsel appearing for the respondents placing reliance on the decontrol order submitted that during the period when there was no control of sale of sugar by the producers, the producers were enabled to sell their hundred percent of that production in the open market and the benefit flowing from such decontrol changed the whole complex and, therefore, the appellants cannot be allowed to contend that the Government cannot change the scheme. 5. We have considered the rival submissions. It is well- settled that the doctrine of promissory estoppel represents a principle evolved by equity to avoid injustice and, though commonly named promissory estoppel, it is neither in the realm of contract nor in the realm of estoppel. The basis of this doctrine is the inter--position of equity which has always, proved to its form, stepped in to mitigate the rigour of strict law. It is equally true that the doctrine of promissory estoppel is not limited in its application only to defence but it can also found a cause of action. This doctrine is applicable against the Government in the exercise of its governmental public or executive functions and the doctrine of executive necessity or freedom of future executive action, cannot be invoked to defeat the applicability of this doctrine. It is further well- established that the doctrine of promissory estoppel must yield when the equity so require. If it can be shown by the Government or public authority that having regard to the facts as they have transpired, it would be unequitable to hold the Government or public authority to the promise or representation made by it, the court would not raise an equity in favour of the person to whom the promise or representation is made and enforce the promise or representation against the Government or public authority. The doctrine of promissory estoppel would be displaced in such a case because on the facts, equity would not require that the Government or public authority should be held bound by the promise or representation made by it (vide 1985 4 SCC 369 (supra).6. In this case we have found that the Government before refusing the incentive scheme of the year 1975 have taken into account various factors including the decontrol of sale of sugar for the period from 16.8.78 to 17.12.79. Further if the prayer of the appellants were to be allowed, several lakhs of quintals of sugar will have to be released as incentive levy-free sugar which otherwise meant for public distribution system. We agree with the learned Judges of the High Court when they observed that the petitioners who availed of the resulting benefit due to decontrol cannot in all fairness lay claim to be restored the benefit of the incentives in full now over again though the basic premise became non-existent. The benefit under the subsequent scheme in force from November 15, 1980 has already been accorded to them in full measure.The High Court also noticed another important factor to decline the relief prayed for by the appellants, namely, that the appellant company had applied for a grant of the licence in the year 1975, had mentioned in the licence application that the entire expansion would be done by the said company at its own expense. The company was granted licence in February, 1975 and that time nobody could imagine about the incentive scheme which was announced on December 6, 1975. The appellants, therefore, cannot argue that the scheme announced induced them to undertake the expansion of which the licence had been received by it in February, 1975. The expansion carried out by the appellants in pursuance of the licence issued in February, 1975 was independent and had nothing to do with the incentive announced in December, 1975 as observed by the High Court.7. Taking all these factors into consideration, we have no doubt that on the facts of this case, the Principle of Promissory Estoppel has no application at all. The judgment relied on by the learned Senior counsel for the appellants, namely, Godfrey Philips case supports the case of the respondents on facts. 8.
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5. We have considered the rival submissions. It is well- settled that the doctrine of promissory estoppel represents a principle evolved by equity to avoid injustice and, though commonly named promissory estoppel, it is neither in the realm of contract nor in the realm of estoppel. The basis of this doctrine is the inter--position of equity which has always, proved to its form, stepped in to mitigate the rigour of strict law. It is equally true that the doctrine of promissory estoppel is not limited in its application only to defence but it can also found a cause of action. This doctrine is applicable against the Government in the exercise of its governmental public or executive functions and the doctrine of executive necessity or freedom of future executive action, cannot be invoked to defeat the applicability of this doctrine. It is further well- established that the doctrine of promissory estoppel must yield when the equity so require. If it can be shown by the Government or public authority that having regard to the facts as they have transpired, it would be unequitable to hold the Government or public authority to the promise or representation made by it, the court would not raise an equity in favour of the person to whom the promise or representation is made and enforce the promise or representation against the Government or public authority. The doctrine of promissory estoppel would be displaced in such a case because on the facts, equity would not require that the Government or public authority should be held bound by the promise or representation made by it (vide 1985 4 SCC 369 (supra).6. In this case we have found that the Government before refusing the incentive scheme of the year 1975 have taken into account various factors including the decontrol of sale of sugar for the period from 16.8.78 to 17.12.79. Further if the prayer of the appellants were to be allowed, several lakhs of quintals of sugar will have to be released as incentive levy-free sugar which otherwise meant for public distribution system. We agree with the learned Judges of the High Court when they observed that the petitioners who availed of the resulting benefit due to decontrol cannot in all fairness lay claim to be restored the benefit of the incentives in full now over again though the basic premise became non-existent. The benefit under the subsequent scheme in force from November 15, 1980 has already been accorded to them in full measure.The High Court also noticed another important factor to decline the relief prayed for by the appellants, namely, that the appellant company had applied for a grant of the licence in the year 1975, had mentioned in the licence application that the entire expansion would be done by the said company at its own expense. The company was granted licence in February, 1975 and that time nobody could imagine about the incentive scheme which was announced on December 6, 1975. The appellants, therefore, cannot argue that the scheme announced induced them to undertake the expansion of which the licence had been received by it in February, 1975. The expansion carried out by the appellants in pursuance of the licence issued in February, 1975 was independent and had nothing to do with the incentive announced in December, 1975 as observed by the High Court.7. Taking all these factors into consideration, we have no doubt that on the facts of this case, the Principle of Promissory Estoppel has no application at all. The judgment relied on by the learned Senior counsel for the appellants, namely, Godfrey Philips case supports the case of the respondents on facts.
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Jalkal Vibhag Nagar Nigam & Ors Vs. Pradeshiya Industrial and Investment Corporation & Anr | of the Union of India shall be subject to tax imposed by the State, save as Parliament may otherwise provide. The question is whether the charges for supply of water and maintenance of sewerage is in the nature of a tax or a fee for the services rendered by the Jal Sansthan. There is a distinction between a tax and a fee, and hence one has to see the nature of the levy whether it is in the nature of tax or whether it is in the nature of fee for the services rendered by any instrumentality of the State like the Jal Sansthan. There are no two opinions in the matter that so far as supply of water and maintenance of sewerage is concerned, the Jal Sansthan is to maintain it and it is they who bear all the expenses for the maintenance of sewerage and supply of water. It has to create its own funds and therefore, levy under the Act is a must. In order to supply water and maintain sewerage system, the Jal Sansthan has to incur the expenditure for the same. It is in fact a service which is being rendered by the Jal Sansthan to the Railways, and the Railways cannot take this service from the Jal Sansthan without paying the charges for the same. Though the expression tax has been used in the Act of 1975 but in fact it is in the nature of a fee for the services rendered by the Jal Sansthan. What is contemplated under Article 285 is taxation on the property of the Union. In our opinion the Jal Sansthan is not charging any tax on the property of the Union; what is being charged is a fee for services rendered to the Union through the Railways. Therefore, it is a plain and simple charge for service rendered by the Jal Sansthan for which the Jal Sansthan has to maintain staff for regular supply of water as well as for sewerage system of the effluent discharged by the railway over their platforms or from their staff quarters. It is in the nature of a fee for service rendered and not any tax on the property of the Railways. The above observations make it clear that what was being charged in that case were charges for the supply of water and maintenance of sewerage. This was held to be plain and simple a charge for service rendered by the Jal Sansthan. As a consequence, Article 285 of the Constitution had no application on the ground that what is prohibited by Article 285 is taxation on the property of the Union of India, but it does not prohibit a charge of a fee on account of a service rendered by local bodies or an instrumentality of the State, such as the supply of water or the maintenance of sewerage. This Court ruled that the charge would be in the nature of a fee and not a tax. Having drawn the above conclusion, the Court in the concluding paragraph of the decision adverted to Section 52 and held thus: 23. In this case what is being charged is for service rendered by the Jal Sansthan i.e. an instrumentality of the State under the Act of 1975. Section 52 of the Act states that the Jal Sansthan can levy tax, fee and charge for water supply and for sewerage services rendered by it as water tax and sewerage tax at the rates mentioned therein. Though the charge was loosely termed as tax but as already mentioned before, nomenclature is not important. In substance what is being charged is fee for the supply of water as well as maintenance of the sewerage system. Therefore, in our opinion, such service charges are a fee and cannot be said to be hit by Article 285 of the Constitution. In this context it is to be made clear that what is exempted by Article 285 is a tax on the property of the Union of India but not a charge for services which are being rendered in the nature of water supply, for maintenance of sewerage system. Therefore, in our opinion, the view taken by the Division Bench of the Allahabad High Court is correct that the charge is a fee, being service charges for supply of water and maintenance of sewerage system, which cannot be said to be tax on the property of the Union. Hence it is not violative of the provisions of Article 285 of the Constitution. In the above extract, the two judge Bench held that Section 52 states that the Jal Sansthan can levy tax, fee and charge for water supply and for sewerage services and though the charge was termed as a tax, in substance it is a fee for the supply of water. There is an evident error in the above observations. Section 52 is contained in Chapter VI which is titled taxes, fees and charges. The observations in paragraph 23 quoted above indicate that the title of Chapter VI was conflated with the nature of the provision which is contained in Section 52. Section 52 provides for the levy of taxes and not for fees or charges for which there are distinct provisions in Chapter VI. The observations of the Court that though the charges are loosely termed as tax, it is in substance a fee, is per incuriam and in any event not reflective of a correct reading of the provisions of the statute. As we have indicated above in Section D.1, the statute contains distinct provisions for the levy of taxes and for the imposition of charges and the recovery of fees. The levy under Section 52 is a tax simplicitor and cannot be regarded either as a charge or a fee for a service rendered. To that extent, the observations in paragraph 23 of the decision in Union of India v. State of U.P. (supra) would have to be and are accordingly overruled. E Conclusion | 0[ds]5. We must note at the outset that the High Court has allowed the prayer for refund purely on the basis of a judgment of a two-judge Bench of this Court in Union of India v. State of U.P. (supra). The judgment of the High Court has been drafted in a rather casual manner which is evident from the fact that:(i) While extracting from a portion of the judgment of this Court noted above, the High Court has neither referred to the citation nor the name of the case;(ii) After citing the extract from the judgment, the High Court recorded the submissions of the first respondent that the law laid down in the above case is also extended to the first respondent and then proceeded to allow the petition in the following terms:Accordingly, we dispose of the writ petition with a direction to the Jal Sansthan, Lucknow to refund the amount, which has been paid to the petitioner, if there is no legal impediment or any outstanding against the petitioner.Accordingly, writ petition is disposed of.6. There is absolutely no discussion on the merits. There is no discussion of the basis on which the High Court accepted the contention of the first respondent that the judgment of this Court noted earlier was applicable to the facts of the present case. The proceedings have been pending before this Court for well over six years and a remand to the High Court will only result in another round of proceedings and possibly further appeals. That apart, the decision in Union of India v. State of U.P. (supra) is of a two-judge Bench of this Court and we shall explain the judgment which contains observations that were per incuriam and in any event contrary to the statute.20. This characterization of the components of a tax has been described repeatedly in the decisions of this Court. The locus classicus on this point was a two judge Bench decision in Govind Saran Ganga Saran v. CST 1985 Supp SCC 205 . Justice RS Pathak (as the learned Chief Justice then was) held:6. The components which enter into the concept of a tax are well known. The first is the character of the imposition known by its nature which prescribes the taxable event attracting the levy, the second is a clear indication of the person on whom the levy is imposed and who is obliged to pay the tax, the third is the rate at which the tax is imposed, and the fourth is the measure or value to which the rate will be applied for computing the tax liability. If those components are not clearly and definitely ascertainable, it is difficult to say that the levy exists in point of law. Any uncertainty or vagueness in the legislative scheme defining any of those components of the levy will be fatal to its validity.22. In Federation of Hotel and Restaurant Association of India v. Union of India (1989) 3 SCC 634, a challenge was raised to the constitutional validity of the Expenditure Tax Act 1987 which imposed an expenditure tax on persons incurring chargeable expenditure in a class of hotels. In that case, the petitioners argued that the Act in essence levied a tax on luxuries, which falls within Entry 62 of List II and lies outside the competence of Parliament. Rejecting this contention, the Constitution Bench, speaking through Justice MN Venkatachaliah (as the learned Chief Justice then was), observed:43. The subject of a tax is different from the measure of the levy. The measure of the tax is not determinative of its essential character or of the competence of the legislature. In Sainik Motors v. State of Rajasthan [AIR 1961 SC 1480 : (1962) 1 SCR 517 ] , the provisions of a State law levying a tax on passengers and goods under Entry 56 of List I were assailed on the ground that the State was, in the guise of taxing passengers and goods, in substance and reality taxing the income of the stage carriage operators or, at any rate, was taxing the fares and freights, both outside of its powers. It was pointed out that the operators were required to pay the tax calculated at a rate related to the value of the fare and freight. Repelling the contention, Hidayatullah, J., speaking for the court said : (SCR p. 525)We do not agree that the Act, in its pith and substance, lays the tax upon income and not upon passengers and goods. Section 3, in terms, speaks of the charge of the tax in respect of all passengers carried and goods transported by motor vehicles, and though the measure of the tax is furnished by the amount of fare and freight charged, it does not cease to be a tax on passengers and goods.Indeed, reference may be made to the following statement in Encyclopaedia Britannica (Vol. 14 p. 459) on Luxury Tax:A different approach to luxury taxation, much less frequently found, seeks to single out the luxury component of spending on a given object rather than taxing specified goods and services as luxuries. One example of this is the Massachusetts 5 per cent tax on restaurant meal of $. 1 or more.44. The submissions of the learned Attorney General that the tax is essentially a tax on expenditure and not on luxuries or sale of goods falling within the State power, must, in our opinion, be accepted. As contended by the learned Attorney General, the distinct aspect, namely, the expenditure aspect of the transaction falling with the Union power must be distinguished and the legislative competence to impose a tax thereon sustained. Contention (a) is, in our opinion, unsubstantial and, accordingly, fails.23. In State of West Bengal v. Kesoram Industries Ltd (2004) 10 SCC 201 a Constitution Bench of this Court held that the measure employed for assessing a tax must not be confused with the nature of the tax. In doing so, Justice RC Lahoti (as the learned Chief Justice then was), adverted to a line of decisions in Ralla Ram v. Province of East Punjab AIR 1949 FC 81 , Sainik Motors v. State of Rajasthan AIR 1961 SC 1480 , D.G Gose & Co. (Agents) P. Ltd. v. State of Kerala (1980) 2 SCC 410 and Hingir Rampur Coal Co. Ltd. v. State of Orissa AIR 1961 SC 459 , and observed33. […] It has been long recognised that the measure employed for assessing a tax must not be confused with the nature of the tax. A tax has two elements : first, the person, thing or activity on which the tax is imposed, and second, the amount of tax. The amount may be measured in many ways; but a distinction between the subject-matter of a tax and the standard by which the amount of tax is measured must not be lost sight of. These are described respectively as the subject of a tax and the measure of a tax. It is true that the standard adopted as a measure of the levy may be indicative of the nature of the tax, but it does not necessarily determine it. The nature of the mechanism by which the tax is to be assessed is not decisive of the essential characteristic of the particular tax charged, though it may throw light on the general character of the tax. (emphasis supplied)29. The ambit of the expression taxes on lands and buildings in Entry 49 of List II has come up for consideration before the Federal Court and this Court. In Ralla Ram (supra) the Federal Court interpreted Item 42 of List II (the Provincial Legislative List) under Section 100 of the Government of India Act 1935. Item 42 of List II dealt with taxes on lands and buildings, hearths and windows. In this case, a tax was imposed on the basis of annual value of buildings and lands by a Provincial legislature and the question before the Court was whether it was in substance, an income tax. The Federal Court emphasized that annual value is not necessarily actual income but only a standard by which income may be measured. The Court observed:Now once it is realised that the annual value is not necessarily actual income, but is only a standard by which income may be measured, much of the difficulty which appears on the surface is removed. In our opinion, the crucial question to be answered is whether merely because the Income-tax Act has adopted the annual value as the standard for determining the income, it must necessarily follow that, if the same standard is employed as a measure for any other tax, that tax becomes a tax on income? If the answer to this question is to be given in the affirmative, then certain taxes which cannot possibly be described as income-tax must be held to be so. A case in poi- n]t is to be found in In re a Reference under the Government of Ireland Act, 1920: In re s. 3 of the Finance Act (Northern Ireland), 1934 [[1986] A.C. 852.] .This case demolishes the broad contention that wherever the annual value is the basis of a tax, that tax becomes a tax on income. It shows that there are other factors to be taken into consideration and that it is the essential nature of the tax charged and not the nature of the machinery which is to be looked at.31. In Ajoy Kumar Mukherjee v. Local Board of Barpeta AIR 1965 SC 1561 , a Constitution Bench of this Court upheld the validity of an annual tax levied by local boards upon lands used for holding markets created under the Assam Local Self- Government Act 1953. Justice KN Wanchoo, speaking for the Constitution Bench, observed that:4. … It is well-settled that the entries in the three legislative lists have to be interpreted in their widest amplitude and therefore if a tax can reasonably be held to be a tax on land it will come within Entry 49. Further it is equally well-settled that tax on land may be based on the annual value of the land and would still be a tax on land and would not be beyond the competence of the State legislature on the ground that it is a tax on income: (see Ralla Ram v. Province of East Punjab [(1948) FCR 207] . It follows therefore that the use to which the land is put can be taken into account in imposing a tax on it within the meaning of Entry 49 of List II, for the annual value of land which can certainly be taken into account in imposing a tax for the purpose of this entry would necessarily depend upon the use to which the land is put. It is in the light of this settled proposition that we have to examine the scheme of Section 62 of the Act, which imposes the tax under challenge.6. […] This will again show that the tax provided by Section 52(2) is a tax for the use of the land and it is not a tax on the market as such, for the income from the market in the shape of tolls, rents and other dues is not liable to tax under Section 52 and is different from tax. The scheme of Section 62 therefore shows that whenever any land is used for the purpose of holding a market, the owner, occupier or farmer of that land has to pay a certain tax for its use as such. But there is no tax on any transaction that may take place within the market. Further the amount of tax depends upon the area of the land on which market is held and the importance of the market subject to a maximum fixed by the State Government. We have therefore no hesitation in coming to the conclusion on a consideration of the scheme of Section 52 of the Act that the tax provided therein is a tax on land, though its incidence depends upon the use of the land as a market. Further as we have already indicated Section 62(2) which uses the words impose an annual tax thereon clearly shows that the word thereon refers to any land for which a licence is issued for use as a market and not to the word market. Thus the tax in the present case being on land would clearly be within the competence of the State legislature. The contention of the appellant that the State legislature was not competent to impose this tax because there is no provision in List II of the Seventh Schedule for imposing a tax on markets as such must therefore fail.Thus, the Court reaffirmed the principle that the use to which the land has been put can be taken into account in imposing a tax which is within the meaning of Entry 49 of List II.33. Another case in which the interpretation of Entry 49 of List II came up for consideration before a Constitution Bench of this Court is Union of India v. HS Dhillon AIR 1972 SC 1061. In that case, the appeal arose from a judgment of the Punjab and Haryana High Court holding that Section 24 of the Finance Act 1969 insofar as it amended the relevant provisions of the Wealth Tax Act 1957 was beyond the legislative competence of Parliament. The High Court held that the Wealth Tax Act as amended was ultra vires the Constitution insofar as it included the capital value of agricultural land for the purposes of computing net wealth. The majority (4:1) of the High Court had also held that the law was not one with respect to Entry 49 of List II. Chief Justice SM Sikri in the course of the judgment of the Constitution Bench of this Court enunciated the essential elements of a tax under Entry 49 of List II by observing that74. The requisites of a tax under Entry 49, List II, may be summarised thus:(1) It must be a tax on units, that is lands and buildings separately as units.(2) The tax cannot be a tax on totality, i.e., it is not a composite tax on the value of all lands and buildings.(3) The tax is not concerned with the division of interest in the building or land. In other words, it is not concerned whether one person owns or occupies it or two or more persons own or occupy it.In other words, it was held that the tax under Entry 49 of List II is not a personal tax but a tax on property. Consequently, the wealth tax imposed under the Wealth Tax Act was held to be distinct from a tax under Entry 49 of List II.36. In view of the above decisions, there can be no manner of doubt that the levy which is imposed under Section 52 is a tax on lands and buildings situated within the area of the Jal Sansthan for the purpose of imposing the tax. The tax is imposed on premises which fall within the territorial area of the Jal Sansthan. The expression premises is defined to mean land and building. The tax is on lands and buildings. The nomenclature of the tax does not indicate its true character and substance. Nor does the fact that the law enables the Jal Sansthan to levy the tax render it a tax on water. The charging section indicates in unambiguous terms that it is a tax on lands and buildings. The legislature has introduced certain restrictions in Section 55 inter alia stipulating in clause (a) that for land which is exclusively used for agricultural purposes, the tax shall not be levied unless water is supplied by the Jal Sansthan for such purposes to the land and in clause (b) stipulating that(i) the premises should be situated within the prescribed radius from the nearest stand-post or other waterworks at which the water is made available to the public; and(ii) the annual value of which does not exceed Rs. 360 and to which no water has been supplied by the Jal Sansthan.These restrictions do not detract from the nature of the levy nor would the liability which is imposed on the owner and occupier be anything other than a tax on lands and building within the meaning of Entry 49 of List II. The water tax and sewerage tax are taxes levied in order to augment the finances of the Jal Sansthan for the purpose of meeting the cost of its operation, maintenance and services, so as to achieve an economic return on its fixed assets. The collection is ultimately for providing water supply and sewerage in the area of the Jal Sansthan, even if it may not be provided to the particular premises. The tax is imposed on an occupier or owner of the building or land falling within the area of the Jal Sansthan irrespective of whether a connection of water supply or sewerage has been obtained to the land or building. In another words, the basis for the levy of the taxes is on the location of premises within the area of the Jal Sansthan as notified by the State Government. Since the respondents premises are located within the area of the appellants authority, the respondent is liable to pay the water tax as well as the sewerage tax as the owner and occupier of the premises.38. We do not find any merit in this submission. Long years ago in 1958, this Court in M.P.V. Sundararamier & Co. v. State of AP 1958 SCR 1422 held that the Constitution makes a differentiation between the subject matter of the legislation, and the tax in relation to the said subject matter in the Union, State and Concurrent List in the Seventh Schedule. Justice TL Venkatarama Aiyar, speaking for the majority (4:1), observed that :51. In List I, Entries 1 to 81 mention the several matters over which Parliament has authority to legislate. Entries 82 to 92 enumerate the taxes which could be imposed by a law of Parliament. An examination of these two groups of Entries shows that while the main subject of legislation figures in the first group, a tax in relation thereto is separately mentioned in the second. Thus, Entry 22 in List I is Railways, and Entry 89 is Terminal taxes on goods or passengers, carried by railway, sea or air; taxes on railway fares and freights. If Entry 22 is to be construed as involving taxes to be imposed, then Entry 89 would be superfluous. Entry 41 mentions Trade and commerce with foreign countries; import and export across customs frontiers. If these expressions are to be interpreted as including duties to be levied in respect of that trade and commerce, then Entry 83 which is Duties of customs including export duties would be wholly redundant. Entries 43 and 44 relate to incorporation, regulation and winding up of corporations. Entry 85 provides separately for corporation tax. Turning to List II, Entries 1 to 44 form one group mentioning the subjects on which the States could legislate. Entries 45 to 63 in that List form another group, and they deal with taxes. Entry 18, for example, is Land and Entry 45 is Land revenue. Entry 23 is Regulation of mines and Entry 50 is Taxes on mineral rights. The above analysis — and it is not exhaustive of the Entries in the Lists — leads to the inference that taxation is not intended to be comprised in the main subject in which it might on an extended construction be regarded as included, but is treated as a distinct matter for purposes of legislative competence. And this distinction is also manifest in the language of Article 248, clauses (1) and (2) and of Entry 97 in List I of the Constitution. Construing Entry 42 in the light of the above scheme, it is difficult to resist the conclusion that the power of Parliament to legislate on inter-State trade and commerce under Entry 42 does not include a power to impose a tax on sales in the course of such trade and commerce.55. To sum up: (1) Entry 54 is successor to Entry 48 in the Government of India Act, and it would be legitimate to construe it as including tax on inter State sales, unless there is anything repugnant to it in the Constitution, and there is none such. (2) Under the scheme of the entries in the Lists, taxation is regarded as a distinct matter and is separately set out. (3) Article 286(2) proceeds on the basis that it is the States that have the power to enact laws imposing tax on inter-State sales. It is a fair inference to draw from these considerations that under Entry 54 in List II the States are competent to enact laws imposing tax on inter-State sales.40. As explained above, the levy under Section 52 falls squarely under the ambit of Entry 49 of List II as it is in the nature of a tax and not a fee. Thus, the applicability of Entry 17, which is a non-taxing entry, does not arise in this case.44. In Southern Pharmaceuticals and Chemicals, Trichur v. State of Kerala (1981) 4 SCC 391 Justice AP Sen speaking for the Court held:24. The distinction between a tax and a fee is well settled. The question came up for consideration for the first time in this Court in the Commissioner, H.R.E., Madras v. Lakshmindra Thirtha Swamiar of Shirur Mutt [AIR 1954 SC 282 : 1954 SCR 1005 : 1954 SCJ 335 ].25. Fees are the amounts paid for a privilege, and are not an obligation, but the payment is voluntary. Fees are distinguished from taxes in that the chief purpose of a tax is to raise funds for the support of the Government or for a public purpose, while a fee may be charged for the privilege or benefit conferred, or service rendered or to meet the expenses connected therewith. Thus, fees are nothing but payment for some special privilege granted on service rendered. Taxes and taxation are, therefore, distinguishable from various other contributions, charges, or burdens paid or imposed for particular purposes and under particular powers or functions of the Government. It is now increasingly realised that merely because the collections for the services rendered or grant of a privilege or licence, are taken to the consolidated fund of the State and are not separately appropriated towards the expenditure for rendering the service is not by itself decisive. That is because the Constitution did not contemplate it to be an essential element of a fee that it should be credited to a separate fund and not to the consolidated fund. It is also increasingly realised that the element of quid pro quo stricto senso is not always a sine qua non of a fee. It is needless to stress that the element of quid pro quo is not necessarily absent in every tax. We may, in this connection, refer with profit to the observations of Seervai in his Constitutional Law, to the effect: [HM Seervai Constitutional Law of India, 2nd Edn, Vol. 2, p 1252, para 2239]It is submitted that as recognised by Mukherjea, J. himself, the fact that the collections are not merged in the consolidated fund, is not conclusive, though that fact may enable a court to say that very important feature of a fee was present. But the attention of the Supreme Court does not appear to have been called to Article 266 which requires that all revenues of the Union of India and the States must go into their respective consolidated funds and all other public moneys must go into the respective public accounts of the Union and the States. It is submitted that if the services rendered are not by a separate body like the Charity Commissioner, but by a government department, the character of the imposition would not change because under Article 266 the moneys collected for the services must be credited to the consolidated fund. It may be mentioned that the element of quid pro quo is not necessarily absent in every tax.Our attention has been drawn to the observations in Kewal Krishan Puri v. State of Punjab [(1980) 1 SCC 416, 425 : (1979) 3 SCR 1217 , 1230] : (SCC p. 425, para 8)The element of quid pro quo must be established between the payer of the fee and the authority charging it. It may not be the exact equivalent of the fee by a mathematical precision, yet, by and large, or predominantly, the authority collecting the fee must show that the service which they are rendering in lieu of fee is for some special benefit of the payer of the fee.To our mind, these observations are not intended and meant as laying down a rule of universal application. The Court was considering the rate of a market fee, and the question was whether there was any justification for the increase in rate from Rs 2 per every hundred rupees to Rs 3. There was no material placed to justify the increase in rate of the fee and, therefore, it partook the nature of a tax. It seems that the Court proceeded on the assumption that the element of quid pro quo must always be present in a fee. The traditional concept of quid pro quo is undergoing a transformation.45. In Municipal Corporation of Delhi v. Mohd. Yasin (1983) 3 SCC 229, Justice O Chinnappa Reddy, while speaking for two judge Bench of this Court, referred to the decision in Southern Pharmaceuticals (supra) and observed:9. What do we learn from these precedents? We learn that there is no generic difference between a tax and a fee, though broadly a tax is a compulsory exaction as part of a common burden, without promise of any special advantages to classes of taxpayers whereas a fee is a payment for services rendered, benefit provided or privilege conferred. Compulsion is not the hallmark of the distinction between a tax and a fee. That the money collected does not go into a separate fund but goes into the consolidated fund does not also necessarily make a levy a tax. Though a fee must have relation to the services rendered, or the advantages conferred, such relation need not be direct, a mere causal relation may be enough. Further, neither the incidence of the fee nor the service rendered need be uniform. That others besides those paying the fees are also benefitted does not detract from the character of the fee. In fact the special benefit or advantage to the payers of the fees may even be secondary as compared with the primary motive of regulation in the public interest. Nor is the court to assume the role of a cost accountant. It is neither necessary nor expedient to weigh too meticulously the cost of the services rendered etc. against the amount of fees collected so as to evenly balance the two. A broad co- relationship is all that is necessary. Quid pro quo in the strict sense is not the one and only true index of a fee; nor is it necessarily absent in a tax.47. In view of this consistent line of authority, it emerges that the practical and even constitutional, distinction between a tax and fee has been weathered down. As in the case of a tax, a fee may also involve a compulsory exaction. A fee may involve an element of compulsion and its proceeds may form a part of the Consolidated Fund. Similarly, the element of a quid pro quo is not necessarily absent in the case of every tax. In the present case, the tax has been imposed by the legislature in Section 52 on premises situated within the area of the Jal Sansthan. The proceeds of the tax are intended to constitute revenue available to the Jal Sansthan to carry out its mandatory obligations and functions under the statute of making water and sewerage facilities available in the area under its jurisdiction. The levy is imposed by virtue of the presence of the premises within the area of the jurisdiction of the Jal Sansthan. The water tax is levied so long as the Jal Sansthan has provided a stand post or waterworks within a stipulated radius of the premises through which water has been made available to the public by the Jal Sansthan. The levy of the tax does not depend upon the actual consumption of water by the owner or occupier upon whom the tax is levied. Unlike the charge under Section 59 which is towards the cost of water to be supplied by the Jal Sansthan according to its volume or, in lieu thereof on a fixed sum, the tax under Section 52 is a compulsory exaction. Where the premises are connected with water supply, the tax is levied on the occupier of the premises. On the other hand, where the premises are not so connected, it is the owner of the premises who bears the tax. The levy under Section 52 (1) is hence a tax and not a fee. Moreover, for the reasons that we have indicated above, it is a tax on lands and buildings within the meaning of Entry 49 of List II.48. The High Court in the present case has relied on the decision of a two judge Bench of this Court in Union of India v. State of U.P. (supra) in support of its decision to order a refund of the taxes collected by the appellants. In that case, the writ petition which was filed by the Union of India before the High Court challenged certain orders for the recovery of service charges on railway properties issued by the Jal Sansthan, Allahabad. The Jal Sansthan had directed the recovery of a sum of money towards sewerage charges for 3125 seats from the Divisional Railway Manager of the Northern Railway at Allahabad. The levy was sought to be challenged on the ground that the Railways were holding the property of the Central Government for which service charges were not payable under Article 285 of the Constitution as such charges were in the nature of a tax. The bulk of the water was supplied by the Jal Sansthan for maintenance of the railway platforms as well as railway colonies. The Jal Sansthan was catering to the need of maintaining the sewerage system not only at the railway stations but in the adjoining areas as well as the residential quarters, offices, gardens, and sheds maintained by the Union of India through the railways. The Division Bench of the High Court dismissed the writ petition challenging the levy. It must be noted that it was contended by the Union of India that the levy of service charge was in the nature of a tax and hence fell within the ambit of Article 285 of the Constitution. On the other hand, the Jal Sansthan contended that the water and sewerage charges did not constitute a tax but were a fee for services rendered by the Jal Sansthan to which Article 285 had no application. In that context, Justice AK Mathur speaking for a two judge Bench of this Court observed:10. From a perusal of Article 285 it is clear that no property of the Union of India shall be subject to tax imposed by the State, save as Parliament may otherwise provide. The question is whether the charges for supply of water and maintenance of sewerage is in the nature of a tax or a fee for the services rendered by the Jal Sansthan. There is a distinction between a tax and a fee, and hence one has to see the nature of the levy whether it is in the nature of tax or whether it is in the nature of fee for the services rendered by any instrumentality of the State like the Jal Sansthan. There are no two opinions in the matter that so far as supply of water and maintenance of sewerage is concerned, the Jal Sansthan is to maintain it and it is they who bear all the expenses for the maintenance of sewerage and supply of water. It has to create its own funds and therefore, levy under the Act is a must. In order to supply water and maintain sewerage system, the Jal Sansthan has to incur the expenditure for the same. It is in fact a service which is being rendered by the Jal Sansthan to the Railways, and the Railways cannot take this service from the Jal Sansthan without paying the charges for the same. Though the expression tax has been used in the Act of 1975 but in fact it is in the nature of a fee for the services rendered by the Jal Sansthan. What is contemplated under Article 285 is taxation on the property of the Union. In our opinion the Jal Sansthan is not charging any tax on the property of the Union; what is being charged is a fee for services rendered to the Union through the Railways. Therefore, it is a plain and simple charge for service rendered by the Jal Sansthan for which the Jal Sansthan has to maintain staff for regular supply of water as well as for sewerage system of the effluent discharged by the railway over their platforms or from their staff quarters. It is in the nature of a fee for service rendered and not any tax on the property of the Railways.The above observations make it clear that what was being charged in that case were charges for the supply of water and maintenance of sewerage. This was held to be plain and simple a charge for service rendered by the Jal Sansthan. As a consequence, Article 285 of the Constitution had no application on the ground that what is prohibited by Article 285 is taxation on the property of the Union of India, but it does not prohibit a charge of a fee on account of a service rendered by local bodies or an instrumentality of the State, such as the supply of water or the maintenance of sewerage. This Court ruled that the charge would be in the nature of a fee and not a tax. Having drawn the above conclusion, the Court in the concluding paragraph of the decision adverted to Section 52 and held thus:23. In this case what is being charged is for service rendered by the Jal Sansthan i.e. an instrumentality of the State under the Act of 1975. Section 52 of the Act states that the Jal Sansthan can levy tax, fee and charge for water supply and for sewerage services rendered by it as water tax and sewerage tax at the rates mentioned therein. Though the charge was loosely termed as tax but as already mentioned before, nomenclature is not important. In substance what is being charged is fee for the supply of water as well as maintenance of the sewerage system. Therefore, in our opinion, such service charges are a fee and cannot be said to be hit by Article 285 of the Constitution. In this context it is to be made clear that what is exempted by Article 285 is a tax on the property of the Union of India but not a charge for services which are being rendered in the nature of water supply, for maintenance of sewerage system. Therefore, in our opinion, the view taken by the Division Bench of the Allahabad High Court is correct that the charge is a fee, being service charges for supply of water and maintenance of sewerage system, which cannot be said to be tax on the property of the Union. Hence it is not violative of the provisions of Article 285 of the Constitution.In the above extract, the two judge Bench held that Section 52 states that the Jal Sansthan can levy tax, fee and charge for water supply and for sewerage services and though the charge was termed as a tax, in substance it is a fee for the supply of water. There is an evident error in the above observations. Section 52 is contained in Chapter VI which is titled taxes, fees and charges. The observations in paragraph 23 quoted above indicate that the title of Chapter VI was conflated with the nature of the provision which is contained in Section 52. Section 52 provides for the levy of taxes and not for fees or charges for which there are distinct provisions in Chapter VI. The observations of the Court that though the charges are loosely termed as tax, it is in substance a fee, is per incuriam and in any event not reflective of a correct reading of the provisions of the statute. As we have indicated above in Section D.1, the statute contains distinct provisions for the levy of taxes and for the imposition of charges and the recovery of fees. The levy under Section 52 is a tax simplicitor and cannot be regarded either as a charge or a fee for a service rendered. To that extent, the observations in paragraph 23 of the decision in Union of India v. State of U.P. (supra) would have to be and are accordingly overruled. | 0 | 16,431 | 6,795 | ### Instruction:
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of the Union of India shall be subject to tax imposed by the State, save as Parliament may otherwise provide. The question is whether the charges for supply of water and maintenance of sewerage is in the nature of a tax or a fee for the services rendered by the Jal Sansthan. There is a distinction between a tax and a fee, and hence one has to see the nature of the levy whether it is in the nature of tax or whether it is in the nature of fee for the services rendered by any instrumentality of the State like the Jal Sansthan. There are no two opinions in the matter that so far as supply of water and maintenance of sewerage is concerned, the Jal Sansthan is to maintain it and it is they who bear all the expenses for the maintenance of sewerage and supply of water. It has to create its own funds and therefore, levy under the Act is a must. In order to supply water and maintain sewerage system, the Jal Sansthan has to incur the expenditure for the same. It is in fact a service which is being rendered by the Jal Sansthan to the Railways, and the Railways cannot take this service from the Jal Sansthan without paying the charges for the same. Though the expression tax has been used in the Act of 1975 but in fact it is in the nature of a fee for the services rendered by the Jal Sansthan. What is contemplated under Article 285 is taxation on the property of the Union. In our opinion the Jal Sansthan is not charging any tax on the property of the Union; what is being charged is a fee for services rendered to the Union through the Railways. Therefore, it is a plain and simple charge for service rendered by the Jal Sansthan for which the Jal Sansthan has to maintain staff for regular supply of water as well as for sewerage system of the effluent discharged by the railway over their platforms or from their staff quarters. It is in the nature of a fee for service rendered and not any tax on the property of the Railways. The above observations make it clear that what was being charged in that case were charges for the supply of water and maintenance of sewerage. This was held to be plain and simple a charge for service rendered by the Jal Sansthan. As a consequence, Article 285 of the Constitution had no application on the ground that what is prohibited by Article 285 is taxation on the property of the Union of India, but it does not prohibit a charge of a fee on account of a service rendered by local bodies or an instrumentality of the State, such as the supply of water or the maintenance of sewerage. This Court ruled that the charge would be in the nature of a fee and not a tax. Having drawn the above conclusion, the Court in the concluding paragraph of the decision adverted to Section 52 and held thus: 23. In this case what is being charged is for service rendered by the Jal Sansthan i.e. an instrumentality of the State under the Act of 1975. Section 52 of the Act states that the Jal Sansthan can levy tax, fee and charge for water supply and for sewerage services rendered by it as water tax and sewerage tax at the rates mentioned therein. Though the charge was loosely termed as tax but as already mentioned before, nomenclature is not important. In substance what is being charged is fee for the supply of water as well as maintenance of the sewerage system. Therefore, in our opinion, such service charges are a fee and cannot be said to be hit by Article 285 of the Constitution. In this context it is to be made clear that what is exempted by Article 285 is a tax on the property of the Union of India but not a charge for services which are being rendered in the nature of water supply, for maintenance of sewerage system. Therefore, in our opinion, the view taken by the Division Bench of the Allahabad High Court is correct that the charge is a fee, being service charges for supply of water and maintenance of sewerage system, which cannot be said to be tax on the property of the Union. Hence it is not violative of the provisions of Article 285 of the Constitution. In the above extract, the two judge Bench held that Section 52 states that the Jal Sansthan can levy tax, fee and charge for water supply and for sewerage services and though the charge was termed as a tax, in substance it is a fee for the supply of water. There is an evident error in the above observations. Section 52 is contained in Chapter VI which is titled taxes, fees and charges. The observations in paragraph 23 quoted above indicate that the title of Chapter VI was conflated with the nature of the provision which is contained in Section 52. Section 52 provides for the levy of taxes and not for fees or charges for which there are distinct provisions in Chapter VI. The observations of the Court that though the charges are loosely termed as tax, it is in substance a fee, is per incuriam and in any event not reflective of a correct reading of the provisions of the statute. As we have indicated above in Section D.1, the statute contains distinct provisions for the levy of taxes and for the imposition of charges and the recovery of fees. The levy under Section 52 is a tax simplicitor and cannot be regarded either as a charge or a fee for a service rendered. To that extent, the observations in paragraph 23 of the decision in Union of India v. State of U.P. (supra) would have to be and are accordingly overruled. E Conclusion
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is clear that no property of the Union of India shall be subject to tax imposed by the State, save as Parliament may otherwise provide. The question is whether the charges for supply of water and maintenance of sewerage is in the nature of a tax or a fee for the services rendered by the Jal Sansthan. There is a distinction between a tax and a fee, and hence one has to see the nature of the levy whether it is in the nature of tax or whether it is in the nature of fee for the services rendered by any instrumentality of the State like the Jal Sansthan. There are no two opinions in the matter that so far as supply of water and maintenance of sewerage is concerned, the Jal Sansthan is to maintain it and it is they who bear all the expenses for the maintenance of sewerage and supply of water. It has to create its own funds and therefore, levy under the Act is a must. In order to supply water and maintain sewerage system, the Jal Sansthan has to incur the expenditure for the same. It is in fact a service which is being rendered by the Jal Sansthan to the Railways, and the Railways cannot take this service from the Jal Sansthan without paying the charges for the same. Though the expression tax has been used in the Act of 1975 but in fact it is in the nature of a fee for the services rendered by the Jal Sansthan. What is contemplated under Article 285 is taxation on the property of the Union. In our opinion the Jal Sansthan is not charging any tax on the property of the Union; what is being charged is a fee for services rendered to the Union through the Railways. Therefore, it is a plain and simple charge for service rendered by the Jal Sansthan for which the Jal Sansthan has to maintain staff for regular supply of water as well as for sewerage system of the effluent discharged by the railway over their platforms or from their staff quarters. It is in the nature of a fee for service rendered and not any tax on the property of the Railways.The above observations make it clear that what was being charged in that case were charges for the supply of water and maintenance of sewerage. This was held to be plain and simple a charge for service rendered by the Jal Sansthan. As a consequence, Article 285 of the Constitution had no application on the ground that what is prohibited by Article 285 is taxation on the property of the Union of India, but it does not prohibit a charge of a fee on account of a service rendered by local bodies or an instrumentality of the State, such as the supply of water or the maintenance of sewerage. This Court ruled that the charge would be in the nature of a fee and not a tax. Having drawn the above conclusion, the Court in the concluding paragraph of the decision adverted to Section 52 and held thus:23. In this case what is being charged is for service rendered by the Jal Sansthan i.e. an instrumentality of the State under the Act of 1975. Section 52 of the Act states that the Jal Sansthan can levy tax, fee and charge for water supply and for sewerage services rendered by it as water tax and sewerage tax at the rates mentioned therein. Though the charge was loosely termed as tax but as already mentioned before, nomenclature is not important. In substance what is being charged is fee for the supply of water as well as maintenance of the sewerage system. Therefore, in our opinion, such service charges are a fee and cannot be said to be hit by Article 285 of the Constitution. In this context it is to be made clear that what is exempted by Article 285 is a tax on the property of the Union of India but not a charge for services which are being rendered in the nature of water supply, for maintenance of sewerage system. Therefore, in our opinion, the view taken by the Division Bench of the Allahabad High Court is correct that the charge is a fee, being service charges for supply of water and maintenance of sewerage system, which cannot be said to be tax on the property of the Union. Hence it is not violative of the provisions of Article 285 of the Constitution.In the above extract, the two judge Bench held that Section 52 states that the Jal Sansthan can levy tax, fee and charge for water supply and for sewerage services and though the charge was termed as a tax, in substance it is a fee for the supply of water. There is an evident error in the above observations. Section 52 is contained in Chapter VI which is titled taxes, fees and charges. The observations in paragraph 23 quoted above indicate that the title of Chapter VI was conflated with the nature of the provision which is contained in Section 52. Section 52 provides for the levy of taxes and not for fees or charges for which there are distinct provisions in Chapter VI. The observations of the Court that though the charges are loosely termed as tax, it is in substance a fee, is per incuriam and in any event not reflective of a correct reading of the provisions of the statute. As we have indicated above in Section D.1, the statute contains distinct provisions for the levy of taxes and for the imposition of charges and the recovery of fees. The levy under Section 52 is a tax simplicitor and cannot be regarded either as a charge or a fee for a service rendered. To that extent, the observations in paragraph 23 of the decision in Union of India v. State of U.P. (supra) would have to be and are accordingly overruled.
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