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DHARMENDRA KUMAR SINGH Vs. THE STATE OF UTTAR PRADESH & ORS | a restricted window and this legislative intent ought not to be defeated by supplanting it with any other interpretation. It is a well settled principle of interpretation that when the words of a statute are clear and unambigous, recourse to different principles of interpretation, other than the rule of literal construction, cannot be resorted to. (Delhi Transport Corporation v. Balwan Singh and Ors., 2019 SCC OnLine SC 276) If a fresh grant or extension has to be made under the Mining Rules, it must be in accordance with Chapter II, and the provision for auction of leases in Chapter IV is in furtherance of a transparent procedure. 36. We do find ourselves in agreement with the submission of the learned counsel for the State that the right to extension of lease either flow from a statutory provision or from the terms of the lease between the concerned parties. If there has been an obstructed period by reason of a judicial interdict, that itself will not give window to extend the lease by not following the statutory provisions, especially when the terms of the lease do not provide for any consequences thereof. 37. We may notice that this view has been adopted by the Allahabad High Court in Vijay Kumar Dwivedi (supra) case where the same question was examined. The leaseholders were obstructed/restrained from carrying out the mining activity during the subsistence of their leases upon the orders of the High Court or of the competent authority. The High Court adopted the view that after the issuance of the G.O. dated 31.5.2012 this could not be done. 38. We are conscious of the fact that the G.O. dated 31.5.2012 also finds elucidation in certain other judicial pronouncements and that this aspect was clarified by the subsequent G.O. dated 26.2.2013 and then both the G.Os. were cancelled vide G.O. dated 22.10.2014, which would hold the field. In pursuance thereof, 35 mining leases are stated to have been issued but that itself would not make a difference because we have to see what are the subsequent developments and what course to adopt as on date. Even if we consider the interpretation sought to be put forth by learned senior counsel for the appellants of an expanded view of Rule 68, giving power to the State to extend the lease for the obstructed period, would it now be exercisable is the question. 39. The State of UP had issued a New Mining Policy on 12.6.2017 and this policy has no provision for grant of extension of time for obstructed period of mining lease and all mining leases were to be permitted by etendering or e-auction alone. If the mining lease is extended for the obstructed period, it would amount to violation of this New Mining Policy and since the extension would have to be granted now, we are unable to accept the contention of the learned senior counsel for the appellants that this should relate back to the date of the lease and not as on date. 40. We may also notice that the statutory rule, Rule 40(h) of the Mining Rules, extracted in para 16 itself, provides for the consequences of the disruption of mining operations in a lease area owing to any special circumstances and requires the DM, with the prior approval of the State Government, to adjust the amount equivalent to the installments payable during the disrupted period against forthcoming installments. Thus, monetary adjustment is all that has been provided for by the statute making the legislative intent obvious, i.e., that if some amounts have been paid as installments under the mining lease for the period when the beneficiary is not able to operate the mining area, only that amount is liable to be refunded. This is what forms the basis of the submission made on behalf of the State of UP that they are only liable to refund (i) any security deposit; or (ii) advance royalties paid to them, for this obstructed period – something to which the State of UP has already consented before us as recorded in our order dated 10.8.2020. The view taken by the High Court in Nar Narain Mishra (supra) case no doubt was in the context of the applicability of the G.O. dated 31.5.2012 and received the imprimatur of the Supreme Court in Sulekhan Singh (supra) case. But we have also to note that the observations dealt with the issue also on the submission advanced that imarti patthar or building stone is not covered by the G.O. dated 31.5.2012 and that contention was not accepted. The word boulder was held to be included in the heading of building stone as well as when found in a mixed form in riverbeds and the prayer of the leaseholder was not accepted. 41. We are conscious of the fact, as already noticed, that the appellants have suffered in the second round and the plea advanced on their behalf that if there were interdicts posed by a competent court that should not put a party at a disadvantage. This rule is ordinarily to be accepted for placing a successful party in the same position, which they had been in, if the wrong complained against them would not have been done to them. (Beg Raj Singh case (supra)) However, this cannot be a blanket proposition and we have to consider the context in which the interdict was passed, i.e., to preserve the forest area. It is a different matter that some leases were ultimately found as within the restricted area and some outside (as is the case of the appellants). Even if we take the notification of the State of UP dated 31.7.2014 into account, and the authorisation of the DMs to extend the lease where no third party interest was created and the leases were prevented from operation for no fault attributable to the leaseholders, the subsequent transparent policy of 2017 would weigh in favour of not exercising the jurisdiction to extend the leases for the obstructed period. | 1[ds]We may notice that some of the leases expired during the obstructed period while other leases have continued and thus in the latter cases the issue would only be to further extend the lease for the obstructed period while in case of the earlier situation permission would have to be given to mine for an extended period relatable to the obstructed period. The delay on the part of the State of UP in issuance of the Section 20 notification has been placed at the door of an apprehension that it should not be construed as violative of the orders passed in Banwasi Seva Ashram (supra) case.15. In the conspectus of the aforesaid facts and judicial pronouncements, the developments which have taken place post this situation were set out. The State of UP issued a New Mining Policy on 12.6.2017. In terms of this policy there is no provision for grant of extension of time for obstructed period of mining lease and all mining leases were to be permitted by e-tendering or e-auction alone.30. We have given considerable thought to the issue at hand, keeping in mind the past litigation, the statutory provisions and the narrow compass in which we have to examine the issue at hand.31. There is no doubt that the prior rounds of litigation resulted in orders favouring the appellants. The present round of litigation, however, arose on account of an endeavour to prevent alleged illegal mining in the vicinity of the Kaimur Wildlife Sanctuary located in Village Billi Markundi in Sonbhadra District. The Notification dated 20.3.2017 of the MoEFCC declared the area in question as an ESZ under the provisions of the EPA. The sequitur was that the State of UP placed before the NGT the factual position relating to the grant of leases and according to them, there were stated to be 33 leases operational outside the ESZ. The NGT wanted to examine this on account of the orders passed on 4.5.2016 in T.N. Godavarman Thirumalpad (supra) case for cancellation of all mining leases and all other non-forestry activities on areas notified under Section 4 of the Forest Act. The whole object was to find out as to what lay outside of the reserved limit of the forest area and it was found that there were some active leases still in force on the lands which were covered under the notification issued under Section 4 of the Forest Act. But despite this, the notification under Section 20 of the Forest Act had not been issued. The directions which arose from the impugned order of the NGT on 13.7.2018, were towards this objective. 32. We have already noted that the leaseholders were, however, not made parties, not even in a representative capacity. This is the reason that these aspects could not be examined with the assistance of the appellants by the NGT, and the mining activity was stopped resulting in the appeals before us. We, thus, called upon the State of UP to perform their statutory duty of issuance of the notification under Section 20 of the Forest Act and after some delay, the same was issued only on 15.6.2020. It is only at that stage that the leases which were not covered, as in the case of the appellants, had a final clarity and the issue, received a closure. However, this did prevent the mining activity till then, from the time it was banned by the NGT. In the mean time, there are leases which have expired and there are other leases which are still in force as is apparent from the detailed chart which we have set out at the inception of our judgment.33. Insofar as the questionwhether to adopt the course of extending the leases for the obstructed period or in some way compensating the appellants for the same,is what was debated and we have already noted the rival contentions of the two parties.34. We have, at the inception, stated that we are conscious of the statutory provisions and, thus, would not like to infringe the same, apart from the fact that it may not be an appropriate course of action as it may open other floodgates as if these rounds are not enough!35. The judicial opinions referred to by learned counsel for the State of UP no doubt lead to a more or less consistent view that a mere filing of an application either for the grant of a lease or for the renewal of a lease does not confer a vested right for either grant or renewal of a lease (Sukhan Singh(supra) case). The statutory provision of Rule 68 of the Mining Rules, which has been strongly relied upon by learned counsel for the appellants, is in the nature of a relaxation rule in special cases and has to be read with the Rules which provide the manner in which the exploitation of minerals should take place (Mohammad Yunus Hasan (supra) case). Thus, the expression used is in the interest of mineral development it is necessary so to do… The idea, thus, is that the objective of exercising such power should be to aid the development of minerals and such judicial view is of significance as there was always a possibility of the misuse of such power, considering the history of mineral exploitation in our country. The statute was worded in a restrictive manner deliberately giving only a restricted window and this legislative intent ought not to be defeated by supplanting it with any other interpretation. It is a well settled principle of interpretation that when the words of a statute are clear and unambigous, recourse to different principles of interpretation, other than the rule of literal construction, cannot be resorted to. (Delhi Transport Corporation v. Balwan Singh and Ors., 2019 SCC OnLine SC 276) If a fresh grant or extension has to be made under the Mining Rules, it must be in accordance with Chapter II, and the provision for auction of leases in Chapter IV is in furtherance of a transparent procedure.36. We do find ourselves in agreement with the submission of the learned counsel for the State that the right to extension of lease either flow from a statutory provision or from the terms of the lease between the concerned parties. If there has been an obstructed period by reason of a judicial interdict, that itself will not give window to extend the lease by not following the statutory provisions, especially when the terms of the lease do not provide for any consequences thereof.37. We may notice that this view has been adopted by the Allahabad High Court in Vijay Kumar Dwivedi (supra) case where the same question was examined. The leaseholders were obstructed/restrained from carrying out the mining activity during the subsistence of their leases upon the orders of the High Court or of the competent authority. The High Court adopted the view that after the issuance of the G.O. dated 31.5.2012 this could not be done.38. We are conscious of the fact that the G.O. dated 31.5.2012 also finds elucidation in certain other judicial pronouncements and that this aspect was clarified by the subsequent G.O. dated 26.2.2013 and then both the G.Os. were cancelled vide G.O. dated 22.10.2014, which would hold the field. In pursuance thereof, 35 mining leases are stated to have been issued but that itself would not make a difference because we have to see what are the subsequent developments and what course to adopt as on date. Even if we consider the interpretation sought to be put forth by learned senior counsel for the appellants of an expanded view of Rule 68, giving power to the State to extend the lease for the obstructed period, would it now be exercisable is the question.39. The State of UP had issued a New Mining Policy on 12.6.2017 and this policy has no provision for grant of extension of time for obstructed period of mining lease and all mining leases were to be permitted by etendering or e-auction alone. If the mining lease is extended for the obstructed period, it would amount to violation of this New Mining Policy and since the extension would have to be granted now, we are unable to accept the contention of the learned senior counsel for the appellants that this should relate back to the date of the lease and not as on date.40. We may also notice that the statutory rule, Rule 40(h) of the Mining Rules, extracted in para 16 itself, provides for the consequences of the disruption of mining operations in a lease area owing to any special circumstances and requires the DM, with the prior approval of the State Government, to adjust the amount equivalent to the installments payable during the disrupted period against forthcoming installments. Thus, monetary adjustment is all that has been provided for by the statute making the legislative intent obvious, i.e., that if some amounts have been paid as installments under the mining lease for the period when the beneficiary is not able to operate the mining area, only that amount is liable to be refunded. This is what forms the basis of the submission made on behalf of the State of UP that they are only liable to refund (i) any security deposit; or (ii) advance royalties paid to them, for this obstructed period – something to which the State of UP has already consented before us as recorded in our order dated 10.8.2020. The view taken by the High Court in Nar Narain Mishra (supra) case no doubt was in the context of the applicability of the G.O. dated 31.5.2012 and received the imprimatur of the Supreme Court in Sulekhan Singh (supra) case. But we have also to note that the observations dealt with the issue also on the submission advanced that imarti patthar or building stone is not covered by the G.O. dated 31.5.2012 and that contention was not accepted. The word boulder was held to be included in the heading of building stone as well as when found in a mixed form in riverbeds and the prayer of the leaseholder was not accepted.41. We are conscious of the fact, as already noticed, that the appellants have suffered in the second round and the plea advanced on their behalf that if there were interdicts posed by a competent court that should not put a party at a disadvantage. This rule is ordinarily to be accepted for placing a successful party in the same position, which they had been in, if the wrong complained against them would not have been done to them. (Beg Raj Singh case (supra)) However, this cannot be a blanket proposition and we have to consider the context in which the interdict was passed, i.e., to preserve the forest area. It is a different matter that some leases were ultimately found as within the restricted area and some outside (as is the case of the appellants). Even if we take the notification of the State of UP dated 31.7.2014 into account, and the authorisation of the DMs to extend the lease where no third party interest was created and the leases were prevented from operation for no fault attributable to the leaseholders, the subsequent transparent policy of 2017 would weigh in favour of not exercising the jurisdiction to extend the leases for the obstructed period. | 1 | 8,046 | 2,057 | ### Instruction:
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a restricted window and this legislative intent ought not to be defeated by supplanting it with any other interpretation. It is a well settled principle of interpretation that when the words of a statute are clear and unambigous, recourse to different principles of interpretation, other than the rule of literal construction, cannot be resorted to. (Delhi Transport Corporation v. Balwan Singh and Ors., 2019 SCC OnLine SC 276) If a fresh grant or extension has to be made under the Mining Rules, it must be in accordance with Chapter II, and the provision for auction of leases in Chapter IV is in furtherance of a transparent procedure. 36. We do find ourselves in agreement with the submission of the learned counsel for the State that the right to extension of lease either flow from a statutory provision or from the terms of the lease between the concerned parties. If there has been an obstructed period by reason of a judicial interdict, that itself will not give window to extend the lease by not following the statutory provisions, especially when the terms of the lease do not provide for any consequences thereof. 37. We may notice that this view has been adopted by the Allahabad High Court in Vijay Kumar Dwivedi (supra) case where the same question was examined. The leaseholders were obstructed/restrained from carrying out the mining activity during the subsistence of their leases upon the orders of the High Court or of the competent authority. The High Court adopted the view that after the issuance of the G.O. dated 31.5.2012 this could not be done. 38. We are conscious of the fact that the G.O. dated 31.5.2012 also finds elucidation in certain other judicial pronouncements and that this aspect was clarified by the subsequent G.O. dated 26.2.2013 and then both the G.Os. were cancelled vide G.O. dated 22.10.2014, which would hold the field. In pursuance thereof, 35 mining leases are stated to have been issued but that itself would not make a difference because we have to see what are the subsequent developments and what course to adopt as on date. Even if we consider the interpretation sought to be put forth by learned senior counsel for the appellants of an expanded view of Rule 68, giving power to the State to extend the lease for the obstructed period, would it now be exercisable is the question. 39. The State of UP had issued a New Mining Policy on 12.6.2017 and this policy has no provision for grant of extension of time for obstructed period of mining lease and all mining leases were to be permitted by etendering or e-auction alone. If the mining lease is extended for the obstructed period, it would amount to violation of this New Mining Policy and since the extension would have to be granted now, we are unable to accept the contention of the learned senior counsel for the appellants that this should relate back to the date of the lease and not as on date. 40. We may also notice that the statutory rule, Rule 40(h) of the Mining Rules, extracted in para 16 itself, provides for the consequences of the disruption of mining operations in a lease area owing to any special circumstances and requires the DM, with the prior approval of the State Government, to adjust the amount equivalent to the installments payable during the disrupted period against forthcoming installments. Thus, monetary adjustment is all that has been provided for by the statute making the legislative intent obvious, i.e., that if some amounts have been paid as installments under the mining lease for the period when the beneficiary is not able to operate the mining area, only that amount is liable to be refunded. This is what forms the basis of the submission made on behalf of the State of UP that they are only liable to refund (i) any security deposit; or (ii) advance royalties paid to them, for this obstructed period – something to which the State of UP has already consented before us as recorded in our order dated 10.8.2020. The view taken by the High Court in Nar Narain Mishra (supra) case no doubt was in the context of the applicability of the G.O. dated 31.5.2012 and received the imprimatur of the Supreme Court in Sulekhan Singh (supra) case. But we have also to note that the observations dealt with the issue also on the submission advanced that imarti patthar or building stone is not covered by the G.O. dated 31.5.2012 and that contention was not accepted. The word boulder was held to be included in the heading of building stone as well as when found in a mixed form in riverbeds and the prayer of the leaseholder was not accepted. 41. We are conscious of the fact, as already noticed, that the appellants have suffered in the second round and the plea advanced on their behalf that if there were interdicts posed by a competent court that should not put a party at a disadvantage. This rule is ordinarily to be accepted for placing a successful party in the same position, which they had been in, if the wrong complained against them would not have been done to them. (Beg Raj Singh case (supra)) However, this cannot be a blanket proposition and we have to consider the context in which the interdict was passed, i.e., to preserve the forest area. It is a different matter that some leases were ultimately found as within the restricted area and some outside (as is the case of the appellants). Even if we take the notification of the State of UP dated 31.7.2014 into account, and the authorisation of the DMs to extend the lease where no third party interest was created and the leases were prevented from operation for no fault attributable to the leaseholders, the subsequent transparent policy of 2017 would weigh in favour of not exercising the jurisdiction to extend the leases for the obstructed period.
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a restrictive manner deliberately giving only a restricted window and this legislative intent ought not to be defeated by supplanting it with any other interpretation. It is a well settled principle of interpretation that when the words of a statute are clear and unambigous, recourse to different principles of interpretation, other than the rule of literal construction, cannot be resorted to. (Delhi Transport Corporation v. Balwan Singh and Ors., 2019 SCC OnLine SC 276) If a fresh grant or extension has to be made under the Mining Rules, it must be in accordance with Chapter II, and the provision for auction of leases in Chapter IV is in furtherance of a transparent procedure.36. We do find ourselves in agreement with the submission of the learned counsel for the State that the right to extension of lease either flow from a statutory provision or from the terms of the lease between the concerned parties. If there has been an obstructed period by reason of a judicial interdict, that itself will not give window to extend the lease by not following the statutory provisions, especially when the terms of the lease do not provide for any consequences thereof.37. We may notice that this view has been adopted by the Allahabad High Court in Vijay Kumar Dwivedi (supra) case where the same question was examined. The leaseholders were obstructed/restrained from carrying out the mining activity during the subsistence of their leases upon the orders of the High Court or of the competent authority. The High Court adopted the view that after the issuance of the G.O. dated 31.5.2012 this could not be done.38. We are conscious of the fact that the G.O. dated 31.5.2012 also finds elucidation in certain other judicial pronouncements and that this aspect was clarified by the subsequent G.O. dated 26.2.2013 and then both the G.Os. were cancelled vide G.O. dated 22.10.2014, which would hold the field. In pursuance thereof, 35 mining leases are stated to have been issued but that itself would not make a difference because we have to see what are the subsequent developments and what course to adopt as on date. Even if we consider the interpretation sought to be put forth by learned senior counsel for the appellants of an expanded view of Rule 68, giving power to the State to extend the lease for the obstructed period, would it now be exercisable is the question.39. The State of UP had issued a New Mining Policy on 12.6.2017 and this policy has no provision for grant of extension of time for obstructed period of mining lease and all mining leases were to be permitted by etendering or e-auction alone. If the mining lease is extended for the obstructed period, it would amount to violation of this New Mining Policy and since the extension would have to be granted now, we are unable to accept the contention of the learned senior counsel for the appellants that this should relate back to the date of the lease and not as on date.40. We may also notice that the statutory rule, Rule 40(h) of the Mining Rules, extracted in para 16 itself, provides for the consequences of the disruption of mining operations in a lease area owing to any special circumstances and requires the DM, with the prior approval of the State Government, to adjust the amount equivalent to the installments payable during the disrupted period against forthcoming installments. Thus, monetary adjustment is all that has been provided for by the statute making the legislative intent obvious, i.e., that if some amounts have been paid as installments under the mining lease for the period when the beneficiary is not able to operate the mining area, only that amount is liable to be refunded. This is what forms the basis of the submission made on behalf of the State of UP that they are only liable to refund (i) any security deposit; or (ii) advance royalties paid to them, for this obstructed period – something to which the State of UP has already consented before us as recorded in our order dated 10.8.2020. The view taken by the High Court in Nar Narain Mishra (supra) case no doubt was in the context of the applicability of the G.O. dated 31.5.2012 and received the imprimatur of the Supreme Court in Sulekhan Singh (supra) case. But we have also to note that the observations dealt with the issue also on the submission advanced that imarti patthar or building stone is not covered by the G.O. dated 31.5.2012 and that contention was not accepted. The word boulder was held to be included in the heading of building stone as well as when found in a mixed form in riverbeds and the prayer of the leaseholder was not accepted.41. We are conscious of the fact, as already noticed, that the appellants have suffered in the second round and the plea advanced on their behalf that if there were interdicts posed by a competent court that should not put a party at a disadvantage. This rule is ordinarily to be accepted for placing a successful party in the same position, which they had been in, if the wrong complained against them would not have been done to them. (Beg Raj Singh case (supra)) However, this cannot be a blanket proposition and we have to consider the context in which the interdict was passed, i.e., to preserve the forest area. It is a different matter that some leases were ultimately found as within the restricted area and some outside (as is the case of the appellants). Even if we take the notification of the State of UP dated 31.7.2014 into account, and the authorisation of the DMs to extend the lease where no third party interest was created and the leases were prevented from operation for no fault attributable to the leaseholders, the subsequent transparent policy of 2017 would weigh in favour of not exercising the jurisdiction to extend the leases for the obstructed period.
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Haryana Tourism Limited Vs. M/s Kandhari Beverages Limited | directed the respondent to pay a sum of Rs. 9.5 lakhs. The counter claim lodged by the respondent claiming Rs. 13.92 lakhs was dismissed by the arbitrator. The respondent thereafter filed objection petition before Additional District Judge, Chandigarh under Section 34 of the Arbitration Act against the award passed by the arbitrator. Vide order dated 25.09.2014, the Additional District Judge dismissed the appeal/objection petition. 2.3 Feeling aggrieved and dissatisfied with the order passed by Additional District Judge, Chandigarh dismissing the appeal/objection petition under Section 34 of the Arbitration Act, the respondent herein preferred a further appeal before the High Court under Section 37 of the Arbitration Act. By the impugned judgment and order, the High Court has allowed the said appeal by entering into the merits of the claim and has quashed and set aside the award passed by the arbitrator as well as the order passed by Additional District Judge, Chandigarh. 2.4 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court, the original claimant – Corporation has preferred the present appeal. 3. Shri B.K. Satija, learned Advocate has appeared on behalf of the appellant herein and Shri Kanwal Chaudhary, learned Advocate has appeared on behalf of the respondent herein. 3.1 Shri B.K. Satija, learned Advocate appearing on behalf of the appellant – Corporation has vehemently submitted that the High Court has materially erred in quashing and setting aside the award in exercise of its powers under Section 37 of the Arbitration Act. It is submitted that while quashing and setting aside the award passed by the arbitrator, the High Court has exceeded its jurisdiction under Section 37 of the Arbitration Act. 3.2 It is submitted that the High Court had a very limited scope and/or jurisdiction while deciding the appeal under Section 37 of the Arbitration Act. 3.3 It is submitted that in an appeal under Section 37 of the Arbitration Act, the High Court has no jurisdiction to enter into the merits of the claim awarded by the arbitrator, confirmed by the first appellate Court under Section 34 of the Arbitration Act. 3.4 It is submitted that in the present case, the High Court has decided the appeal as if the High Court was deciding the first appeal against the judgment and decree passed by the learned trial Court which as such is not permissible while exercising the power under Section 37 of the Arbitration Act. 3.5 Making the above submissions, it is prayed to allow the present appeal and quash and set aside the impugned judgment and order passed by the High Court. 4. The present appeal is vehemently opposed by Shri Kanwal Chaudhary, learned Advocate appearing on behalf of the respondent. 4.1 It is submitted that as such the learned arbitrator had no jurisdiction at all to pass the award as no amount was due and payable as nothing was spent on marketing activities by the appellant – Corporation. 4.2 It is submitted that the composition of Arbitral Tribunal as well as the appointment of the sole arbitrator was not in accordance with clause 13 of the Contract. It is submitted that the appointment of the sole arbitrator and his competence was challenged by the respondent, which was summarily rejected. 4.3 It is submitted that the question of jurisdiction can be raised under Section 16 of the Arbitration Act which can also be raised after the award is passed. 4.4 It is submitted that even otherwise as no amount was spent by the appellant – Corporation, there was no question of any payment to the appellant-Corporation. It is submitted that on the contrary, the respondent filed a counter claim claiming Rs. 13.92 lakhs which unfortunately came to be rejected by the arbitrator. 4.5 Making the above submissions, it is prayed to dismiss the present appeal. 5. We have heard the learned counsel for the respective parties at length. We have also gone through the impugned judgment and order passed by the High Court. 6. So far as the question of jurisdiction of the arbitrator raised by the respondent is concerned, the same has been dealt with by the High Court also and the said objection has been overruled by the High Court against which no appeal is preferred by the respondent. In that view of the matter, now it is not open for the respondent to challenge the jurisdiction of the arbitrator, that too in an appeal preferred by the original claimant – Corporation – appellant herein. 7. So far as the impugned judgment and order passed by the High Court quashing and setting aside the award and the order passed by the Additional District Judge under Section 34 of the Arbitration Act are concerned, it is required to be noted that in an appeal under Section 37 of the Arbitration Act, the High Court has entered into the merits of the claim, which is not permissible in exercise of powers under Section 37 of the Arbitration Act. 8. As per settled position of law laid down by this Court in a catena of decisions, an award can be set aside only if the award is against the public policy of India. The award can be set aside under Sections 34/37 of the Arbitration Act, if the award is found to be contrary to, (a) fundamental policy of Indian Law; or (b) the interest of India; or (c) justice or morality; or (d) if it is patently illegal. None of the aforesaid exceptions shall be applicable to the facts of the case on hand. The High Court has entered into the merits of the claim and has decided the appeal under Section 37 of the Arbitration Act as if the High Court was deciding the appeal against the judgment and decree passed by the learned trial Court. Thus, the High Court has exercised the jurisdiction not vested in it under Section 37 of the Arbitration Act. The impugned judgment and order passed by the High Court is hence not sustainable. | 1[ds]6. So far as the question of jurisdiction of the arbitrator raised by the respondent is concerned, the same has been dealt with by the High Court also and the said objection has been overruled by the High Court against which no appeal is preferred by the respondent. In that view of the matter, now it is not open for the respondent to challenge the jurisdiction of the arbitrator, that too in an appeal preferred by the original claimant – Corporation – appellant herein.7. So far as the impugned judgment and order passed by the High Court quashing and setting aside the award and the order passed by the Additional District Judge under Section 34 of the Arbitration Act are concerned, it is required to be noted that in an appeal under Section 37 of the Arbitration Act, the High Court has entered into the merits of the claim, which is not permissible in exercise of powers under Section 37 of the Arbitration Act.8. As per settled position of law laid down by this Court in a catena of decisions, an award can be set aside only if the award is against the public policy of India. The award can be set aside under Sections 34/37 of the Arbitration Act, if the award is found to be contrary to, (a) fundamental policy of Indian Law; or (b) the interest of India; or (c) justice or morality; or (d) if it is patently illegal. None of the aforesaid exceptions shall be applicable to the facts of the case on hand. The High Court has entered into the merits of the claim and has decided the appeal under Section 37 of the Arbitration Act as if the High Court was deciding the appeal against the judgment and decree passed by the learned trial Court. Thus, the High Court has exercised the jurisdiction not vested in it under Section 37 of the Arbitration Act. The impugned judgment and order passed by the High Court is hence not sustainable. | 1 | 1,411 | 370 | ### Instruction:
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directed the respondent to pay a sum of Rs. 9.5 lakhs. The counter claim lodged by the respondent claiming Rs. 13.92 lakhs was dismissed by the arbitrator. The respondent thereafter filed objection petition before Additional District Judge, Chandigarh under Section 34 of the Arbitration Act against the award passed by the arbitrator. Vide order dated 25.09.2014, the Additional District Judge dismissed the appeal/objection petition. 2.3 Feeling aggrieved and dissatisfied with the order passed by Additional District Judge, Chandigarh dismissing the appeal/objection petition under Section 34 of the Arbitration Act, the respondent herein preferred a further appeal before the High Court under Section 37 of the Arbitration Act. By the impugned judgment and order, the High Court has allowed the said appeal by entering into the merits of the claim and has quashed and set aside the award passed by the arbitrator as well as the order passed by Additional District Judge, Chandigarh. 2.4 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court, the original claimant – Corporation has preferred the present appeal. 3. Shri B.K. Satija, learned Advocate has appeared on behalf of the appellant herein and Shri Kanwal Chaudhary, learned Advocate has appeared on behalf of the respondent herein. 3.1 Shri B.K. Satija, learned Advocate appearing on behalf of the appellant – Corporation has vehemently submitted that the High Court has materially erred in quashing and setting aside the award in exercise of its powers under Section 37 of the Arbitration Act. It is submitted that while quashing and setting aside the award passed by the arbitrator, the High Court has exceeded its jurisdiction under Section 37 of the Arbitration Act. 3.2 It is submitted that the High Court had a very limited scope and/or jurisdiction while deciding the appeal under Section 37 of the Arbitration Act. 3.3 It is submitted that in an appeal under Section 37 of the Arbitration Act, the High Court has no jurisdiction to enter into the merits of the claim awarded by the arbitrator, confirmed by the first appellate Court under Section 34 of the Arbitration Act. 3.4 It is submitted that in the present case, the High Court has decided the appeal as if the High Court was deciding the first appeal against the judgment and decree passed by the learned trial Court which as such is not permissible while exercising the power under Section 37 of the Arbitration Act. 3.5 Making the above submissions, it is prayed to allow the present appeal and quash and set aside the impugned judgment and order passed by the High Court. 4. The present appeal is vehemently opposed by Shri Kanwal Chaudhary, learned Advocate appearing on behalf of the respondent. 4.1 It is submitted that as such the learned arbitrator had no jurisdiction at all to pass the award as no amount was due and payable as nothing was spent on marketing activities by the appellant – Corporation. 4.2 It is submitted that the composition of Arbitral Tribunal as well as the appointment of the sole arbitrator was not in accordance with clause 13 of the Contract. It is submitted that the appointment of the sole arbitrator and his competence was challenged by the respondent, which was summarily rejected. 4.3 It is submitted that the question of jurisdiction can be raised under Section 16 of the Arbitration Act which can also be raised after the award is passed. 4.4 It is submitted that even otherwise as no amount was spent by the appellant – Corporation, there was no question of any payment to the appellant-Corporation. It is submitted that on the contrary, the respondent filed a counter claim claiming Rs. 13.92 lakhs which unfortunately came to be rejected by the arbitrator. 4.5 Making the above submissions, it is prayed to dismiss the present appeal. 5. We have heard the learned counsel for the respective parties at length. We have also gone through the impugned judgment and order passed by the High Court. 6. So far as the question of jurisdiction of the arbitrator raised by the respondent is concerned, the same has been dealt with by the High Court also and the said objection has been overruled by the High Court against which no appeal is preferred by the respondent. In that view of the matter, now it is not open for the respondent to challenge the jurisdiction of the arbitrator, that too in an appeal preferred by the original claimant – Corporation – appellant herein. 7. So far as the impugned judgment and order passed by the High Court quashing and setting aside the award and the order passed by the Additional District Judge under Section 34 of the Arbitration Act are concerned, it is required to be noted that in an appeal under Section 37 of the Arbitration Act, the High Court has entered into the merits of the claim, which is not permissible in exercise of powers under Section 37 of the Arbitration Act. 8. As per settled position of law laid down by this Court in a catena of decisions, an award can be set aside only if the award is against the public policy of India. The award can be set aside under Sections 34/37 of the Arbitration Act, if the award is found to be contrary to, (a) fundamental policy of Indian Law; or (b) the interest of India; or (c) justice or morality; or (d) if it is patently illegal. None of the aforesaid exceptions shall be applicable to the facts of the case on hand. The High Court has entered into the merits of the claim and has decided the appeal under Section 37 of the Arbitration Act as if the High Court was deciding the appeal against the judgment and decree passed by the learned trial Court. Thus, the High Court has exercised the jurisdiction not vested in it under Section 37 of the Arbitration Act. The impugned judgment and order passed by the High Court is hence not sustainable.
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6. So far as the question of jurisdiction of the arbitrator raised by the respondent is concerned, the same has been dealt with by the High Court also and the said objection has been overruled by the High Court against which no appeal is preferred by the respondent. In that view of the matter, now it is not open for the respondent to challenge the jurisdiction of the arbitrator, that too in an appeal preferred by the original claimant – Corporation – appellant herein.7. So far as the impugned judgment and order passed by the High Court quashing and setting aside the award and the order passed by the Additional District Judge under Section 34 of the Arbitration Act are concerned, it is required to be noted that in an appeal under Section 37 of the Arbitration Act, the High Court has entered into the merits of the claim, which is not permissible in exercise of powers under Section 37 of the Arbitration Act.8. As per settled position of law laid down by this Court in a catena of decisions, an award can be set aside only if the award is against the public policy of India. The award can be set aside under Sections 34/37 of the Arbitration Act, if the award is found to be contrary to, (a) fundamental policy of Indian Law; or (b) the interest of India; or (c) justice or morality; or (d) if it is patently illegal. None of the aforesaid exceptions shall be applicable to the facts of the case on hand. The High Court has entered into the merits of the claim and has decided the appeal under Section 37 of the Arbitration Act as if the High Court was deciding the appeal against the judgment and decree passed by the learned trial Court. Thus, the High Court has exercised the jurisdiction not vested in it under Section 37 of the Arbitration Act. The impugned judgment and order passed by the High Court is hence not sustainable.
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Apoorva Shantilal Shah Vs. The C.I.T. Gujarat-I | physical division of the income without physical division of the Property producing the income shall not be deemed to be a partition ; or (ii) where the property does not admit of a physical division then such division as the property admits of, but a mere severance of status shall not be deemed to be a partition; (b) partial partition means a partition which is partial as regards the persons constituting the Hindu undivided family, or the properties belonging to the Hindu undivided family, or both It may be noted that the following further provision was included in the said section as sub-s. (9) by the Finance (No. 2) Act, 1980, w.e.f. 1st April, 1980 (9) Notwithstanding anything contained in the foregoing provisions of this section, where a partial partition has taken place after the 31st day of December, 1978, among the members of a Hindu undivided family hitherto assessed as undivided (a) no claim that such partial partition has taken place shall be inquired into under sub-section (2) and no finding shall be recorded under sub-section (3) that such partial partition had taken place and any finding recorded under sub-section (3) to that effect whether before or after the 18th day of June, 1980, being the date of introduction of the Finance (No. 2) Bill, 1980, shall be null and void ; (b) such family shall continue to be liable to be assessed under this Act as if no such partial partition had taken place (c) each member or group of members of such family immediately before such partial partition and the family shall be jointly and severally liable for any tax, penalty, interest, fine or other sum payable under this Act by the family in respect of any period whether before or after such partial partition ; (d) the several liability of any member or group of members aforesaid shall be computed according to the portion of the joint family property allotted to him or it at such partial partition; and the provisions of this Act shall apply accordingly. This sub-s. (9) was not in existence at the relevant time and has no retrospective operation and it is of no material consequence in deciding the present case The aforesaid provisions of the I.T. Act, as they stood at the material time, clearly recognise partial partition. The definition of partial partition in Expln. (b) makes it clear that partial partition as regards the persons constituting the HUF or as regards properties belonging to the HUF, or both, is recognised 17. In the present case, the partial partition of the shares belonging to the HUF cannot, therefore, be said to be bad either under the Hindu law or under the Indian I.T. Act. We must, therefore, hold that the High Court went wrong in deciding that partial partition of the joint family properties of the Hindu joint family by the father was, invalid and could not be recognised under the I.T. Act. The subsequent amendment of s. 171 by the inclusion of sub-s. (9) does not require any consideration as the said sub-section was not in existence in the relevant assessment year and is only operative from 1st April, 1980. 18. The other question which falls for determination is whether the partition can be said to be bad as at the time of the partition there was no equal division of the shares by the father amongst himself and his minor sons and a part of the shareholding had not been distributed to the father or to the father and mother jointly. We may point out that the AAC has found that at the time of division of the shares, the shares had been distributed equally taking into consideration the shares which had earlier been distributed amongst the parties. In our opinion, a partial partition of any joint family property by the father between himself and his sons does not become invalid on the ground that there has been no equal distribution amongst the co-sharers. It is expected that the father who seeks to bring about a partial partition of joint family properties will Act bona fide in the interest of the joint family and its members, bearing in mind, in particular, the interests of the minor sons. If, however, any such partial partition causes any prejudice to any of the minor sons and if any minor son feels aggrieved by any such partial partition, he can always challenge the validity of such partial partition in an appropriate proceeding and the validity of such partial partition will necessarily have to be adjudicated upon in the proceeding on a proper consideration of all the facts and circumstances of the case. Till such partial partition has been held to be invalid by any competent court, the partial partition must be held to be valid. It is not open to the I.T. authorities to consider a partial partition to be invalid on the ground that shares have not been equally divided and to refuse to recognise the same. It is undoubtedly open to the ITO before recognising the partition to come to a conclusion on proper enquiry whether the partition is genuine or not. If the ITO on enquiry comes to a finding that the partition is sham or fictitious, he will be perfectly within his right to refuse to recognise the same. In the instant case, there is no finding that the partial partition is sham or fictitious or that the partial partition is not a genuine one and has not been acted upon. As there is no finding that the partial partition is sham or fictitious or not a genuine one, on enquiries made by the ITO, and as the partial partition is otherwise valid under the Hindu Law, the partial partition has necessarily to be recognised under the provisions of s. 171 of the I.T. Act and the assessment must be necessarily made on the basis that there is partial partition of the said sharesIn the result, the appeal succeeds. | 1[ds]We may point out that the AAC has found that at the time of division of the shares, the shares had been distributed equally taking into consideration the shares which had earlier been distributed amongst the parties. In our opinion, a partial partition of any joint family property by the father between himself and his sons does not become invalid on the ground that there has been no equal distribution amongst the co-sharers. It is expected that the father who seeks to bring about a partial partition of joint family properties will Act bona fide in the interest of the joint family and its members, bearing in mind, in particular, the interests of the minor sons. If, however, any such partial partition causes any prejudice to any of the minor sons and if any minor son feels aggrieved by any such partial partition, he can always challenge the validity of such partial partition in an appropriate proceeding and the validity of such partial partition will necessarily have to be adjudicated upon in the proceeding on a proper consideration of all the facts and circumstances of the case. Till such partial partition has been held to be invalid by any competent court, the partial partition must be held to be valid. It is not open to the I.T. authorities to consider a partial partition to be invalid on the ground that shares have not been equally divided and to refuse to recognise the same. It is undoubtedly open to the ITO before recognising the partition to come to a conclusion on proper enquiry whether the partition is genuine or not. If the ITO on enquiry comes to a finding that the partition is sham or fictitious, he will be perfectly within his right to refuse to recognise the same. In the instant case, there is no finding that the partial partition is sham or fictitious or that the partial partition is not a genuine one and has not been acted upon. As there is no finding that the partial partition is sham or fictitious or not a genuine one, on enquiries made by the ITO, and as the partial partition is otherwise valid under the Hindu Law, the partial partition has necessarily to be recognised under the provisions of s. 171 of the I.T. Act and the assessment must be necessarily made on the basis that there is partial partition of the said sharesIn the result, the appeal succeeds. The judgment and order of the High Court are hereby set aside. The partial partition is held to be valid and the ITO is directed to recognise the same and to proceed to make the assessment on the basis that there has been a partial partition of the said shares between the parties. | 1 | 8,594 | 494 | ### 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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physical division of the income without physical division of the Property producing the income shall not be deemed to be a partition ; or (ii) where the property does not admit of a physical division then such division as the property admits of, but a mere severance of status shall not be deemed to be a partition; (b) partial partition means a partition which is partial as regards the persons constituting the Hindu undivided family, or the properties belonging to the Hindu undivided family, or both It may be noted that the following further provision was included in the said section as sub-s. (9) by the Finance (No. 2) Act, 1980, w.e.f. 1st April, 1980 (9) Notwithstanding anything contained in the foregoing provisions of this section, where a partial partition has taken place after the 31st day of December, 1978, among the members of a Hindu undivided family hitherto assessed as undivided (a) no claim that such partial partition has taken place shall be inquired into under sub-section (2) and no finding shall be recorded under sub-section (3) that such partial partition had taken place and any finding recorded under sub-section (3) to that effect whether before or after the 18th day of June, 1980, being the date of introduction of the Finance (No. 2) Bill, 1980, shall be null and void ; (b) such family shall continue to be liable to be assessed under this Act as if no such partial partition had taken place (c) each member or group of members of such family immediately before such partial partition and the family shall be jointly and severally liable for any tax, penalty, interest, fine or other sum payable under this Act by the family in respect of any period whether before or after such partial partition ; (d) the several liability of any member or group of members aforesaid shall be computed according to the portion of the joint family property allotted to him or it at such partial partition; and the provisions of this Act shall apply accordingly. This sub-s. (9) was not in existence at the relevant time and has no retrospective operation and it is of no material consequence in deciding the present case The aforesaid provisions of the I.T. Act, as they stood at the material time, clearly recognise partial partition. The definition of partial partition in Expln. (b) makes it clear that partial partition as regards the persons constituting the HUF or as regards properties belonging to the HUF, or both, is recognised 17. In the present case, the partial partition of the shares belonging to the HUF cannot, therefore, be said to be bad either under the Hindu law or under the Indian I.T. Act. We must, therefore, hold that the High Court went wrong in deciding that partial partition of the joint family properties of the Hindu joint family by the father was, invalid and could not be recognised under the I.T. Act. The subsequent amendment of s. 171 by the inclusion of sub-s. (9) does not require any consideration as the said sub-section was not in existence in the relevant assessment year and is only operative from 1st April, 1980. 18. The other question which falls for determination is whether the partition can be said to be bad as at the time of the partition there was no equal division of the shares by the father amongst himself and his minor sons and a part of the shareholding had not been distributed to the father or to the father and mother jointly. We may point out that the AAC has found that at the time of division of the shares, the shares had been distributed equally taking into consideration the shares which had earlier been distributed amongst the parties. In our opinion, a partial partition of any joint family property by the father between himself and his sons does not become invalid on the ground that there has been no equal distribution amongst the co-sharers. It is expected that the father who seeks to bring about a partial partition of joint family properties will Act bona fide in the interest of the joint family and its members, bearing in mind, in particular, the interests of the minor sons. If, however, any such partial partition causes any prejudice to any of the minor sons and if any minor son feels aggrieved by any such partial partition, he can always challenge the validity of such partial partition in an appropriate proceeding and the validity of such partial partition will necessarily have to be adjudicated upon in the proceeding on a proper consideration of all the facts and circumstances of the case. Till such partial partition has been held to be invalid by any competent court, the partial partition must be held to be valid. It is not open to the I.T. authorities to consider a partial partition to be invalid on the ground that shares have not been equally divided and to refuse to recognise the same. It is undoubtedly open to the ITO before recognising the partition to come to a conclusion on proper enquiry whether the partition is genuine or not. If the ITO on enquiry comes to a finding that the partition is sham or fictitious, he will be perfectly within his right to refuse to recognise the same. In the instant case, there is no finding that the partial partition is sham or fictitious or that the partial partition is not a genuine one and has not been acted upon. As there is no finding that the partial partition is sham or fictitious or not a genuine one, on enquiries made by the ITO, and as the partial partition is otherwise valid under the Hindu Law, the partial partition has necessarily to be recognised under the provisions of s. 171 of the I.T. Act and the assessment must be necessarily made on the basis that there is partial partition of the said sharesIn the result, the appeal succeeds.
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We may point out that the AAC has found that at the time of division of the shares, the shares had been distributed equally taking into consideration the shares which had earlier been distributed amongst the parties. In our opinion, a partial partition of any joint family property by the father between himself and his sons does not become invalid on the ground that there has been no equal distribution amongst the co-sharers. It is expected that the father who seeks to bring about a partial partition of joint family properties will Act bona fide in the interest of the joint family and its members, bearing in mind, in particular, the interests of the minor sons. If, however, any such partial partition causes any prejudice to any of the minor sons and if any minor son feels aggrieved by any such partial partition, he can always challenge the validity of such partial partition in an appropriate proceeding and the validity of such partial partition will necessarily have to be adjudicated upon in the proceeding on a proper consideration of all the facts and circumstances of the case. Till such partial partition has been held to be invalid by any competent court, the partial partition must be held to be valid. It is not open to the I.T. authorities to consider a partial partition to be invalid on the ground that shares have not been equally divided and to refuse to recognise the same. It is undoubtedly open to the ITO before recognising the partition to come to a conclusion on proper enquiry whether the partition is genuine or not. If the ITO on enquiry comes to a finding that the partition is sham or fictitious, he will be perfectly within his right to refuse to recognise the same. In the instant case, there is no finding that the partial partition is sham or fictitious or that the partial partition is not a genuine one and has not been acted upon. As there is no finding that the partial partition is sham or fictitious or not a genuine one, on enquiries made by the ITO, and as the partial partition is otherwise valid under the Hindu Law, the partial partition has necessarily to be recognised under the provisions of s. 171 of the I.T. Act and the assessment must be necessarily made on the basis that there is partial partition of the said sharesIn the result, the appeal succeeds. The judgment and order of the High Court are hereby set aside. The partial partition is held to be valid and the ITO is directed to recognise the same and to proceed to make the assessment on the basis that there has been a partial partition of the said shares between the parties.
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THE SILPPI CONSTRUCTIONS CONTRACTORS Vs. UNION OF INDIA AND ANR. ETC. ETC | the grant of extension itself indicates that there were reasonable grounds for extension of the project and, therefore, this ground could not have been taken to reject the technical bid. 27. The second reason was that in another contract awarded to the sister company, the sister company had failed to perform its part of the contract leading to cancellation thereof. The stand of the petitioner was that the dispute between the parties was referred to arbitration and the arbitrator passed an award in favour of the sister company. Hence, there was a finding in favour of the petitioner. According to the respondents, the award was under challenge before the Court. 28. As far as the second objection is concerned, we agree with the petitioner that once an award has been passed in favour of the petitioner that issue could not be used against the petitioner. The Award being a binding adjudication would hold the field unless set aside. 29. However, as far as the first objection is concerned, merely because extension of time has been granted, it does not in any manner mean that the Department has come to the conclusion that the contractor is not at fault. Sometimes extension is granted because a lot of money has already been invested and cancellation of contract and appointment of new contractors would lead to unnecessary litigation and increase in costs. We may also point out that though we have held that the petitioner firm can challenge the correctness of the material used against the sister concern, we cannot lose sight of the fact that in the present case the sister company has not got its enlistment renewed. Some of the adverse remarks were conveyed to the sister company much prior to the issuance of notice inviting tenders in the present case. The sister company not only did not get its enlistment renewed but also did not care to even represent against the adverse remarks. It has been pointed out to us that as per the Manual on Contracts, 2007 if any adverse remarks are conveyed to the enlisted contractor the said contractor has a right to represent against the same. If no representation is made it is obvious that the contractor has accepted the adverse remarks. In this case the adverse remarks were accepted by the sister company. At the least, there was acquiescence if not acceptance. Therefore, this was a factor which could be taken into consideration by the respondents. 30. The eligibility criteria provided in the tender lays down that there should be no adverse remarks in the WLR of the competent engineering authority. Admittedly, there are adverse remarks in Work Load Return (WLR) of the sister company. It is obvious that the sister company having realised that it would not be awarded any contract neither got its enlistment renewed nor tried to submit the tender. The directors of the sister company tried to get over these insurmountable objections by applying for the tender in the name of the petitioner firm. Not only are the names similar but as pointed above, all the directors of the sister company are partners in the petitioner firm. Therefore, these adverse remarks passed against the sister company could not be ignored. 31. Another important aspect of the matter is that as per the eligibility criteria for MES enlisted contractors only contractors falling in SS Class were eligible to apply. Admittedly, the petitioner firm was not an enlisted contractor and was therefore required to meet the eligibility criteria for other contractors. Relevant portion of the notice inviting tender reads as follows :¬ TABLE A bare reading of the eligibility criteria would clearly show that as far as MES enlisted contractors are concerned, they should be enlisted in SS Category a(i) and secondly, they should not carry adverse remarks in WLR of competent engineer authority. As far as other contractors are concerned, they are required to meet the same criteria as SS MES contractors category a(i) and these contractors was specifically told that they could see enlistment criteria in the MES Manual Contracts. 32. The Manual also provides criteria for enlisting of contractors. We are only concerned with Class SS. The relevant portion reads as follows :¬ ……………….. ….…………….. ….……………... 1. For enlistment in class SS, the company incorporated under the Companies Act 1956 shall only be eligible. …….………… ………….……… ……….. ……….. Therefore, only companies incorporated under the Companies Act, 1956, are eligible to be enlisted as SS Class Contractors. It is urged on behalf of the petitioner that in various other places dealing with the documents required to be submitted for enlistment in MES, the terms proprietors, partners, directors have been used, meaning that even firms can be enlisted as SS Class contractors. We do not agree with this contention. The note quoted above clearly indicates that only incorporated companies can be enlisted as SS Class contractors. Furthermore, Clause 1.5 deals with the documents to be submitted by the contractor for enlistment in MES. The relevant portion reads as follows (a) ………………. ………………. …………………. (b) Affidavit for constitution of firm (only limited companies shall be enlisted in SS Class). ……………….… ……………… .. ………………. This again shows that only limited companies can be enlisted in SS Class. The Manual deals with enlistment of contractors in various classes. SS is the highest class and for that only incorporated companies can apply. Therefore, in our opinion the petitioner was not eligible to submit the tender 33. It was faintly contended that the requirement of being a company would be only for MES enlisted contractors and not for other contractors. The answer to this lies in the eligibility criteria for other contractors referred to above wherein it has been clearly mentioned that they should meet the enlistment criteria of Class SS MES Contractors. Even otherwise it would be a travesty of justice if enlisted contractors should only be limited companies and unlisted unknown contractors, could be a firm, individual etc. This is not the purpose of the criteria. | 0[ds]This Court in a catena of judgments has laid down the principles with regard to judicial review in contractual matters. It is settled law that the writ courts should not easily interfere in commercial activities just because public sector undertakings or government agencies are involved19. This Court being the guardian of fundamental rights is duty bound to interfere when there is arbitrariness, irrationality, mala fides and bias. However, this Court in all the aforesaid decisions has cautioned time and again that courts should exercise a lot of restraint while exercising their powers of judicial review in contractual or commercial matters. This Court is normally loathe to interfere in contractual matters unless a clear¬cut case of arbitrariness or mala fides or bias or irrationality is made out. One must remember that today many public sector undertakings compete with the private industry. The contracts entered into between private parties are not subject to scrutiny under writ jurisdiction. No doubt, the bodies which are State within the meaning of Article 12 of the Constitution are bound to act fairly and are amenable to the writ jurisdiction of superior courts but this discretionary power must be exercised with a great deal of restraint and caution. The Courts must realise their limitations and the havoc which needless interference in commercial matters can cause. In contracts involving technical issues the courts should be even more reluctant because most of us in judges robes do not have the necessary expertise to adjudicate upon technical issues beyond our domain. As laid down in the judgments cited above the courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder. In fact, the courts must give fair play in the joints to the government and public sector undertakings in matters of contract. Courts must also not interfere where such interference will cause unnecessary loss to the public exchequer20. The essence of the law laid down in the judgments referred to above is the exercise of restraint and caution; the need for overwhelming public interest to justify judicial intervention in matters of contract involving the state instrumentalities; the courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable; the court does not sit like a court of appeal over the appropriate authority; the court must realise that the authority floating the tender is the best judge of its requirements and, therefore, the courts interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. The courts will only interfere to prevent arbitrariness, irrationality, bias, mala fides or perversity. With this approach in mind we shall deal with the present case21. It has been urged by the learned counsel for the petitioner that the Division Bench of the High Court erred in holding that the writ petition was not maintainable without making all the tenderers parties to the petition. At the outset, we may state that the Division bench of the High Court has held that in all cases challenging the decision of the tendering authority, all the eligible tenderers should be made parties. We do not think such a broad proposition could be laid down as an inflexible rule of law. Supposing the tender documents are not sold/delivered to a party wanting to submit a tender, in such a case the other tenderers would not be necessary parties. In the present case the petitioner was only challenging the rejection of its technical bid. At this stage the other tenderers were not necessary parties. The position may be otherwise if a tenderer challenges a bid awarded to another or challenges the rejection of his bid at a later stage. In our view the writ petition was maintainable even in the absence of other tenderers because till that stage there was no successful tenderer. Who are the necessary parties will depend upon the facts of each case22. It was next urged that the Division Bench erred in holding that the adverse remarks recorded against the sister company could not be gone into in the absence of any challenge by the sister company. We accept this contention. In our considered view if the tendering authority is using any adverse material of the sister company against the petitioner firm then the petitioner firm would be entitled to urge that the adverse remarks are not called for or that the adverse remarks are not justified or that the adverse remarks cannot be taken into consideration while considering the tender of the petitioner firm.24. It is not disputed before us that all the partners of the petitioner firm are the directors of the sister company and, therefore, there can be no manner of doubt that the petitioner firm and the sister company are related firms having a business relationship. Therefore, adverse remarks made against the sister concern can be used against the petitioner firm. To be fair to the learned counsel for the petitioner this point was not seriously contested before usWe must remember that we are dealing with purely administrative decisions. These are in the realm of contract. While rejecting the tender the person or authority inviting the tenders is not required to give reasons even if it be a state within the meaning of Article 12 of the Constitution. These decisions are neither judicial nor quasi¬judicial. If reasons are to be given at every stage, then the commercial activities of the State would come to a grinding halt. The State must be given sufficient leeway in this regard. The Respondent nos. 1 and 2 were entitled to give reasons in the counter to the writ petition which they have done26. Two reasons were given by the Department. One was that the sister company had been given a contract for some construction in Chennai zone and there was a huge delay in the execution of the project. According to the petitioners, extension had been granted to them from time to time by the authorities and the grant of extension itself indicates that there were reasonable grounds for extension of the project and, therefore, this ground could not have been taken to reject the technical bid27. The second reason was that in another contract awarded to the sister company, the sister company had failed to perform its part of the contract leading to cancellation thereof. The stand of the petitioner was that the dispute between the parties was referred to arbitration and the arbitrator passed an award in favour of the sister company. Hence, there was a finding in favour of the petitioner. According to the respondents, the award was under challenge before the Court28. As far as the second objection is concerned, we agree with the petitioner that once an award has been passed in favour of the petitioner that issue could not be used against the petitioner. The Award being a binding adjudication would hold the field unless set aside29. However, as far as the first objection is concerned, merely because extension of time has been granted, it does not in any manner mean that the Department has come to the conclusion that the contractor is not at fault. Sometimes extension is granted because a lot of money has already been invested and cancellation of contract and appointment of new contractors would lead to unnecessary litigation and increase in costs. We may also point out that though we have held that the petitioner firm can challenge the correctness of the material used against the sister concern, we cannot lose sight of the fact that in the present case the sister company has not got its enlistment renewed. Some of the adverse remarks were conveyed to the sister company much prior to the issuance of notice inviting tenders in the present case. The sister company not only did not get its enlistment renewed but also did not care to even represent against the adverse remarks. It has been pointed out to us that as per the Manual on Contracts, 2007 if any adverse remarks are conveyed to the enlisted contractor the said contractor has a right to represent against the same. If no representation is made it is obvious that the contractor has accepted the adverse remarks. In this case the adverse remarks were accepted by the sister company. At the least, there was acquiescence if not acceptance. Therefore, this was a factor which could be taken into consideration by the respondents30. The eligibility criteria provided in the tender lays down that there should be no adverse remarks in the WLR of the competent engineering authority. Admittedly, there are adverse remarks in Work Load Return (WLR) of the sister company. It is obvious that the sister company having realised that it would not be awarded any contract neither got its enlistment renewed nor tried to submit the tender. The directors of the sister company tried to get over these insurmountable objections by applying for the tender in the name of the petitioner firm. Not only are the names similar but as pointed above, all the directors of the sister company are partners in the petitioner firm. Therefore, these adverse remarks passed against the sister company could not be ignored31. Another important aspect of the matter is that as per the eligibility criteria for MES enlisted contractors only contractors falling in SS Class were eligible to apply. Admittedly, the petitioner firm was not an enlisted contractor and was therefore required to meet the eligibility criteria for other contractorsTherefore, only companies incorporated under the Companies Act, 1956, are eligible to be enlisted as SS Class Contractors. It is urged on behalf of the petitioner that in various other places dealing with the documents required to be submitted for enlistment in MES, the terms proprietors, partners, directors have been used, meaning that even firms can be enlisted as SS Class contractors. We do not agree with this contention. The note quoted above clearly indicates that only incorporated companies can be enlisted as SS Class contractorsFurthermore, Clause 1.5 deals with the documents to be submitted by the contractor for enlistment in MESThis again shows that only limited companies can be enlisted in SS Class. The Manual deals with enlistment of contractors in various classes. SS is the highest class and for that only incorporated companies can apply. Therefore, in our opinion the petitioner was not eligible to submit the tender33. It was faintly contended that the requirement of being a company would be only for MES enlisted contractors and not for other contractors. The answer to this lies in the eligibility criteria for other contractors referred to above wherein it has been clearly mentioned that they should meet the enlistment criteria of Class SS MES Contractors. Even otherwise it would be a travesty of justice if enlisted contractors should only be limited companies and unlisted unknown contractors, could be a firm, individual etc. This is not the purpose of the criteria. | 0 | 4,626 | 1,990 | ### 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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the grant of extension itself indicates that there were reasonable grounds for extension of the project and, therefore, this ground could not have been taken to reject the technical bid. 27. The second reason was that in another contract awarded to the sister company, the sister company had failed to perform its part of the contract leading to cancellation thereof. The stand of the petitioner was that the dispute between the parties was referred to arbitration and the arbitrator passed an award in favour of the sister company. Hence, there was a finding in favour of the petitioner. According to the respondents, the award was under challenge before the Court. 28. As far as the second objection is concerned, we agree with the petitioner that once an award has been passed in favour of the petitioner that issue could not be used against the petitioner. The Award being a binding adjudication would hold the field unless set aside. 29. However, as far as the first objection is concerned, merely because extension of time has been granted, it does not in any manner mean that the Department has come to the conclusion that the contractor is not at fault. Sometimes extension is granted because a lot of money has already been invested and cancellation of contract and appointment of new contractors would lead to unnecessary litigation and increase in costs. We may also point out that though we have held that the petitioner firm can challenge the correctness of the material used against the sister concern, we cannot lose sight of the fact that in the present case the sister company has not got its enlistment renewed. Some of the adverse remarks were conveyed to the sister company much prior to the issuance of notice inviting tenders in the present case. The sister company not only did not get its enlistment renewed but also did not care to even represent against the adverse remarks. It has been pointed out to us that as per the Manual on Contracts, 2007 if any adverse remarks are conveyed to the enlisted contractor the said contractor has a right to represent against the same. If no representation is made it is obvious that the contractor has accepted the adverse remarks. In this case the adverse remarks were accepted by the sister company. At the least, there was acquiescence if not acceptance. Therefore, this was a factor which could be taken into consideration by the respondents. 30. The eligibility criteria provided in the tender lays down that there should be no adverse remarks in the WLR of the competent engineering authority. Admittedly, there are adverse remarks in Work Load Return (WLR) of the sister company. It is obvious that the sister company having realised that it would not be awarded any contract neither got its enlistment renewed nor tried to submit the tender. The directors of the sister company tried to get over these insurmountable objections by applying for the tender in the name of the petitioner firm. Not only are the names similar but as pointed above, all the directors of the sister company are partners in the petitioner firm. Therefore, these adverse remarks passed against the sister company could not be ignored. 31. Another important aspect of the matter is that as per the eligibility criteria for MES enlisted contractors only contractors falling in SS Class were eligible to apply. Admittedly, the petitioner firm was not an enlisted contractor and was therefore required to meet the eligibility criteria for other contractors. Relevant portion of the notice inviting tender reads as follows :¬ TABLE A bare reading of the eligibility criteria would clearly show that as far as MES enlisted contractors are concerned, they should be enlisted in SS Category a(i) and secondly, they should not carry adverse remarks in WLR of competent engineer authority. As far as other contractors are concerned, they are required to meet the same criteria as SS MES contractors category a(i) and these contractors was specifically told that they could see enlistment criteria in the MES Manual Contracts. 32. The Manual also provides criteria for enlisting of contractors. We are only concerned with Class SS. The relevant portion reads as follows :¬ ……………….. ….…………….. ….……………... 1. For enlistment in class SS, the company incorporated under the Companies Act 1956 shall only be eligible. …….………… ………….……… ……….. ……….. Therefore, only companies incorporated under the Companies Act, 1956, are eligible to be enlisted as SS Class Contractors. It is urged on behalf of the petitioner that in various other places dealing with the documents required to be submitted for enlistment in MES, the terms proprietors, partners, directors have been used, meaning that even firms can be enlisted as SS Class contractors. We do not agree with this contention. The note quoted above clearly indicates that only incorporated companies can be enlisted as SS Class contractors. Furthermore, Clause 1.5 deals with the documents to be submitted by the contractor for enlistment in MES. The relevant portion reads as follows (a) ………………. ………………. …………………. (b) Affidavit for constitution of firm (only limited companies shall be enlisted in SS Class). ……………….… ……………… .. ………………. This again shows that only limited companies can be enlisted in SS Class. The Manual deals with enlistment of contractors in various classes. SS is the highest class and for that only incorporated companies can apply. Therefore, in our opinion the petitioner was not eligible to submit the tender 33. It was faintly contended that the requirement of being a company would be only for MES enlisted contractors and not for other contractors. The answer to this lies in the eligibility criteria for other contractors referred to above wherein it has been clearly mentioned that they should meet the enlistment criteria of Class SS MES Contractors. Even otherwise it would be a travesty of justice if enlisted contractors should only be limited companies and unlisted unknown contractors, could be a firm, individual etc. This is not the purpose of the criteria.
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the learned counsel for the petitioner this point was not seriously contested before usWe must remember that we are dealing with purely administrative decisions. These are in the realm of contract. While rejecting the tender the person or authority inviting the tenders is not required to give reasons even if it be a state within the meaning of Article 12 of the Constitution. These decisions are neither judicial nor quasi¬judicial. If reasons are to be given at every stage, then the commercial activities of the State would come to a grinding halt. The State must be given sufficient leeway in this regard. The Respondent nos. 1 and 2 were entitled to give reasons in the counter to the writ petition which they have done26. Two reasons were given by the Department. One was that the sister company had been given a contract for some construction in Chennai zone and there was a huge delay in the execution of the project. According to the petitioners, extension had been granted to them from time to time by the authorities and the grant of extension itself indicates that there were reasonable grounds for extension of the project and, therefore, this ground could not have been taken to reject the technical bid27. The second reason was that in another contract awarded to the sister company, the sister company had failed to perform its part of the contract leading to cancellation thereof. The stand of the petitioner was that the dispute between the parties was referred to arbitration and the arbitrator passed an award in favour of the sister company. Hence, there was a finding in favour of the petitioner. According to the respondents, the award was under challenge before the Court28. As far as the second objection is concerned, we agree with the petitioner that once an award has been passed in favour of the petitioner that issue could not be used against the petitioner. The Award being a binding adjudication would hold the field unless set aside29. However, as far as the first objection is concerned, merely because extension of time has been granted, it does not in any manner mean that the Department has come to the conclusion that the contractor is not at fault. Sometimes extension is granted because a lot of money has already been invested and cancellation of contract and appointment of new contractors would lead to unnecessary litigation and increase in costs. We may also point out that though we have held that the petitioner firm can challenge the correctness of the material used against the sister concern, we cannot lose sight of the fact that in the present case the sister company has not got its enlistment renewed. Some of the adverse remarks were conveyed to the sister company much prior to the issuance of notice inviting tenders in the present case. The sister company not only did not get its enlistment renewed but also did not care to even represent against the adverse remarks. It has been pointed out to us that as per the Manual on Contracts, 2007 if any adverse remarks are conveyed to the enlisted contractor the said contractor has a right to represent against the same. If no representation is made it is obvious that the contractor has accepted the adverse remarks. In this case the adverse remarks were accepted by the sister company. At the least, there was acquiescence if not acceptance. Therefore, this was a factor which could be taken into consideration by the respondents30. The eligibility criteria provided in the tender lays down that there should be no adverse remarks in the WLR of the competent engineering authority. Admittedly, there are adverse remarks in Work Load Return (WLR) of the sister company. It is obvious that the sister company having realised that it would not be awarded any contract neither got its enlistment renewed nor tried to submit the tender. The directors of the sister company tried to get over these insurmountable objections by applying for the tender in the name of the petitioner firm. Not only are the names similar but as pointed above, all the directors of the sister company are partners in the petitioner firm. Therefore, these adverse remarks passed against the sister company could not be ignored31. Another important aspect of the matter is that as per the eligibility criteria for MES enlisted contractors only contractors falling in SS Class were eligible to apply. Admittedly, the petitioner firm was not an enlisted contractor and was therefore required to meet the eligibility criteria for other contractorsTherefore, only companies incorporated under the Companies Act, 1956, are eligible to be enlisted as SS Class Contractors. It is urged on behalf of the petitioner that in various other places dealing with the documents required to be submitted for enlistment in MES, the terms proprietors, partners, directors have been used, meaning that even firms can be enlisted as SS Class contractors. We do not agree with this contention. The note quoted above clearly indicates that only incorporated companies can be enlisted as SS Class contractorsFurthermore, Clause 1.5 deals with the documents to be submitted by the contractor for enlistment in MESThis again shows that only limited companies can be enlisted in SS Class. The Manual deals with enlistment of contractors in various classes. SS is the highest class and for that only incorporated companies can apply. Therefore, in our opinion the petitioner was not eligible to submit the tender33. It was faintly contended that the requirement of being a company would be only for MES enlisted contractors and not for other contractors. The answer to this lies in the eligibility criteria for other contractors referred to above wherein it has been clearly mentioned that they should meet the enlistment criteria of Class SS MES Contractors. Even otherwise it would be a travesty of justice if enlisted contractors should only be limited companies and unlisted unknown contractors, could be a firm, individual etc. This is not the purpose of the criteria.
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Jay Constructions Vs. The State of Maharashtra and Others | not a deficiency which could be cured subsequently. If the same would have been permissible, then that would tantamount to re-arranging the goalposts to the privilege of the petitioner as held by the Apex Court in a case of Central Coalfields Limited (supra).16. At the time of opening of the technical bid, the petitioner was absent. The reason given by the petitioner is that, he was not intimated about the extended date of opening of technical bid. The ld. AGP has clarified that, the technical bids were opened on 11.12.2017. Out of 6 tenderers, 4 were present. The petitioner and his representative was absent. All six tenderers were communicated about it. We would have accepted the case of the petitioner that he was unaware of the tenders being opened on 11.12.2017, however, letter given by the petitioner on 14.12.2017 shows that he had knowledge of the tenders being opened on 11.12.2017. In the said letter, he states that, he has successfully qualified as per the tender condition. In the said letter, he also communicated the committee to accept his tender and out of six tenderers, four were present in the meeting. This would show that, the petitioner was aware of the opening of the tender on 11.12.2017. The tenders were opened on 11.12.2017. They were scrutinized and the decision was taken by the committee on 15.12.2017. No mala fides are attributed to the members of the Committee evaluating the technical bids. Moreover, even the certificate produced by the petitioner regarding experience of the work done shows that the said certificate is with regard to the experience of a major bridge and the certificate did not state that the petitioner had experience of road work. On that count also, the tender of the petitioner is rejected. The certificate produced by the petitioner describes the work being done of major bridge on Kasere Malse road. The said certificate nowhere shows the petitioner having performed the work of road. No justification is coming forth for not giving the certificate of having done the work of road. In light of the above, we do not find that the respondent-authority has faltered in the decision making process while rejecting the technical bid of the petitioner.17. One of the contentions of the respondents relying upon condition no. 4.5 is that, to qualify for award of the contract, each bidder in its name should have in the last five years as referred under the Appendix (A) achieved a maximum financial turnover, as per the amount indicated in Appendix in any one year, (B) satisfactorily completed as a prime contractor at least similar work of value not less than the amount indicated in the Appendix and (C) executed in one year the minimal quantity of the items of work as indicated in Appendix. The respondent No. 5 has not executed the work in its name.18. It appears that, the respondent No. 5 is incorporated and registered in the year 2015. One of the partners Mr. V.I. Rajput, has the necessary experience as required under clause 4.5 of a tender. It is trite that the partnership firm does not have independent legal existence and is a compendium of partners. The question whether the experience of the partner of a firm or a director of a company can be considered as an experience of the partnership firm and/or the company as the case may be, was the subject matter of consideration before the Apex Court in a case of New Horizon (supra). The Apex Court in the said case observed that the experience of the partner in the firm can be considered to be the experience of the firm. The Apex Court in the said case observes thus:23. It is possible to visualise a situation where a person having past experience has entered into a partnership and the tender has been submitted in the name of the partnership firm which may not have any past experience in its own name. That does not mean that the earlier experience of one of the partners of the firm cannot be taken into consideration. Similarly, a company incorporated under the Companies Act having past experience may undergo reorganisation as a result of merger or amalgamation with another company which may have no such past experience and the tender is submitted in the name of the reorganised company. It could not be the purport of the requirement about experience that the experience of the company which has merged into the reorganised company cannot be taken into consideration because the tender has not been submitted in its name and has been submitted in the name of the reorganised company which does not have experience in its name. Conversely there may be a split in a company and persons looking after a particular field of the business of the company form a new company after leaving it. The new company, though having persons with experience in the field, has no experience in its name while the original company having experience in its name lacks persons with experience. The requirement regarding experience does not mean that the offer of the original company must be considered because it has experience in its name though it does not have experienced persons with it and ignore the offer of the new company because it does not have experience in its name though it has persons having experience in the field. While considering the requirement regarding experience it has to be home in mind that the said requirement is contained in a document inviting offers for a commercial transaction. The 493 terms and conditions of such a document have to be construed from the standpoint of a prudent businessman.19. It is undisputed that, one of the partners of the firm Mr. V.I. Rajput had the necessary experience and has done that work. The firm is not an independent legal entity like the company and operates through its partners. In light of that, the experience has been rightly considered by the authorities. | 0[ds]11. The interference of the court in tender or contractual matters in exercise of powers of judicial review is minimal. It is limited to the decision making process and does not travel on the arena of the soundness of decision. The court has to consider that the process adopted is not mala fide, arbitrary and irrational and that the decision making process has been adhered to.First objection of the petitioner with regard to the rejection of its tender is that, the tender is rejected without assigning any reasons. We had asked the ld. Assistant Government Pleader about the said aspect. The ld. Assistant Government Pleader has produced on record the decision of the committee evaluating the technical bid. The Committee has given two reasons for rejection of the petitioners tender (i) the distance of the Hot mix plant of the petitioner is at a distance of 71 kms., the distance had to be within 60 kms of the site and if the distance is more than 60 kms, then the petitioner was required to deposit Rs. 5.00 lakhs as additional security which he has not deposited and (ii) the petitioner has not given the composite certificate of having done the work of bridge and road.It is admitted that, the distance of the petitioners Hot Mix Plant from the site in question is 71 kms and the petitioner had not deposited additional security of Rs. 5.00 lakhs along with the tender. The prima dona contention of the petitioner is that, the said condition was not mandatory.Clause 4.3.18 of the tender document states that, all the documents from sr. no. 4.3.1 to 4.3.17 shall be given by the contractor in envelope no. 1, correctly and completely, otherwise his envelope no. 2 will not be opened. Condition No. 4.3.15 prescribes that if the contractor intends to shift already owned or hired plant from existing location to the new location as required for this work, for that, bidder shall submit additional security as specified in clause 4.3.16. Clause 4.3.16 required the bidder to submit the scanned copy of FDR and additional security of Rs. 5.00 lakhs in envelope no. 1. The tender document states that, the Hot Mix Plant must be within 60 kms., from the center of work site, shifting of plant is allowed. As stated above, the petitioner has not disputed that his plant is at a distance of 71 kms from the center of the work site. Shifting was required and for that purpose, Rs. 5.00 lakhs additional security was required to be given. Clause 4.3.18 is abundantly clear. The document as required under 4.3.16 was not given by the contractor in envelope no. 1 viz. technical bid. As such, the petitioner is held to be disqualified. There is no room for interpretation that the said clause was not mandatory or was not a substantial condition. The language of clause 4.3.8 makes it explicitly clear that the document mentioned in clause 4.3.15 and 4.3.16 has to be given by the contractor in envelope no. 1 otherwise his envelope no. 2 will not be opened. Considering the aforesaid undisputed facts, the Committee has not committed any error in rejecting the technical bid of the petitioner.The reliance placed by the petitioner on the G.R. dt. 12.04.2017, more particularly, clause 4.5.1 and 4.5.2 would be of no avail to the petitioner. The said clauses in the G.R. would apply if any explanation is needed i.e. if there is any doubt in the minds of the committee evaluating the tender, then explanation is required to be called from the tenderer about the doubts. In the present case, the non-compliance of condition no. 4.3.16 goes to the root of the matter. It was not a deficiency which could be cured subsequently. If the same would have been permissible, then that would tantamount to re-arranging the goalposts to the privilege of the petitioner as held by the Apex Court in a case of Central Coalfields Limited (supra).At the time of opening of the technical bid, the petitioner was absent. The reason given by the petitioner is that, he was not intimated about the extended date of opening of technical bid. The ld. AGP has clarified that, the technical bids were opened on 11.12.2017. Out of 6 tenderers, 4 were present. The petitioner and his representative was absent. All six tenderers were communicated about it. We would have accepted the case of the petitioner that he was unaware of the tenders being opened on 11.12.2017, however, letter given by the petitioner on 14.12.2017 shows that he had knowledge of the tenders being opened on 11.12.2017. In the said letter, he states that, he has successfully qualified as per the tender condition. In the said letter, he also communicated the committee to accept his tender and out of six tenderers, four were present in the meeting. This would show that, the petitioner was aware of the opening of the tender on 11.12.2017. The tenders were opened on 11.12.2017. They were scrutinized and the decision was taken by the committee on 15.12.2017. No mala fides are attributed to the members of the Committee evaluating the technical bids. Moreover, even the certificate produced by the petitioner regarding experience of the work done shows that the said certificate is with regard to the experience of a major bridge and the certificate did not state that the petitioner had experience of road work. On that count also, the tender of the petitioner is rejected. The certificate produced by the petitioner describes the work being done of major bridge on Kasere Malse road. The said certificate nowhere shows the petitioner having performed the work of road. No justification is coming forth for not giving the certificate of having done the work of road. In light of the above, we do not find that the respondent-authority has faltered in the decision making process while rejecting the technical bid of the petitioner.One of the contentions of the respondents relying upon condition no. 4.5 is that, to qualify for award of the contract, each bidder in its name should have in the last five years as referred under the Appendix (A) achieved a maximum financial turnover, as per the amount indicated in Appendix in any one year, (B) satisfactorily completed as a prime contractor at least similar work of value not less than the amount indicated in the Appendix and (C) executed in one year the minimal quantity of the items of work as indicated in Appendix. The respondent No. 5 has not executed the work in its name.It appears that, the respondent No. 5 is incorporated and registered in the year 2015. One of the partners Mr. V.I. Rajput, has the necessary experience as required under clause 4.5 of a tender. It is trite that the partnership firm does not have independent legal existence and is a compendium of partners. The question whether the experience of the partner of a firm or a director of a company can be considered as an experience of the partnership firm and/or the company as the case may be, was the subject matter of consideration before the Apex Court in a case of New Horizon (supra). The Apex Court in the said case observed that the experience of the partner in the firm can be considered to be the experience of the firm.It is undisputed that, one of the partners of the firm Mr. V.I. Rajput had the necessary experience and has done that work. The firm is not an independent legal entity like the company and operates through its partners. In light of that, the experience has been rightly considered by the authorities. | 0 | 3,357 | 1,413 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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not a deficiency which could be cured subsequently. If the same would have been permissible, then that would tantamount to re-arranging the goalposts to the privilege of the petitioner as held by the Apex Court in a case of Central Coalfields Limited (supra).16. At the time of opening of the technical bid, the petitioner was absent. The reason given by the petitioner is that, he was not intimated about the extended date of opening of technical bid. The ld. AGP has clarified that, the technical bids were opened on 11.12.2017. Out of 6 tenderers, 4 were present. The petitioner and his representative was absent. All six tenderers were communicated about it. We would have accepted the case of the petitioner that he was unaware of the tenders being opened on 11.12.2017, however, letter given by the petitioner on 14.12.2017 shows that he had knowledge of the tenders being opened on 11.12.2017. In the said letter, he states that, he has successfully qualified as per the tender condition. In the said letter, he also communicated the committee to accept his tender and out of six tenderers, four were present in the meeting. This would show that, the petitioner was aware of the opening of the tender on 11.12.2017. The tenders were opened on 11.12.2017. They were scrutinized and the decision was taken by the committee on 15.12.2017. No mala fides are attributed to the members of the Committee evaluating the technical bids. Moreover, even the certificate produced by the petitioner regarding experience of the work done shows that the said certificate is with regard to the experience of a major bridge and the certificate did not state that the petitioner had experience of road work. On that count also, the tender of the petitioner is rejected. The certificate produced by the petitioner describes the work being done of major bridge on Kasere Malse road. The said certificate nowhere shows the petitioner having performed the work of road. No justification is coming forth for not giving the certificate of having done the work of road. In light of the above, we do not find that the respondent-authority has faltered in the decision making process while rejecting the technical bid of the petitioner.17. One of the contentions of the respondents relying upon condition no. 4.5 is that, to qualify for award of the contract, each bidder in its name should have in the last five years as referred under the Appendix (A) achieved a maximum financial turnover, as per the amount indicated in Appendix in any one year, (B) satisfactorily completed as a prime contractor at least similar work of value not less than the amount indicated in the Appendix and (C) executed in one year the minimal quantity of the items of work as indicated in Appendix. The respondent No. 5 has not executed the work in its name.18. It appears that, the respondent No. 5 is incorporated and registered in the year 2015. One of the partners Mr. V.I. Rajput, has the necessary experience as required under clause 4.5 of a tender. It is trite that the partnership firm does not have independent legal existence and is a compendium of partners. The question whether the experience of the partner of a firm or a director of a company can be considered as an experience of the partnership firm and/or the company as the case may be, was the subject matter of consideration before the Apex Court in a case of New Horizon (supra). The Apex Court in the said case observed that the experience of the partner in the firm can be considered to be the experience of the firm. The Apex Court in the said case observes thus:23. It is possible to visualise a situation where a person having past experience has entered into a partnership and the tender has been submitted in the name of the partnership firm which may not have any past experience in its own name. That does not mean that the earlier experience of one of the partners of the firm cannot be taken into consideration. Similarly, a company incorporated under the Companies Act having past experience may undergo reorganisation as a result of merger or amalgamation with another company which may have no such past experience and the tender is submitted in the name of the reorganised company. It could not be the purport of the requirement about experience that the experience of the company which has merged into the reorganised company cannot be taken into consideration because the tender has not been submitted in its name and has been submitted in the name of the reorganised company which does not have experience in its name. Conversely there may be a split in a company and persons looking after a particular field of the business of the company form a new company after leaving it. The new company, though having persons with experience in the field, has no experience in its name while the original company having experience in its name lacks persons with experience. The requirement regarding experience does not mean that the offer of the original company must be considered because it has experience in its name though it does not have experienced persons with it and ignore the offer of the new company because it does not have experience in its name though it has persons having experience in the field. While considering the requirement regarding experience it has to be home in mind that the said requirement is contained in a document inviting offers for a commercial transaction. The 493 terms and conditions of such a document have to be construed from the standpoint of a prudent businessman.19. It is undisputed that, one of the partners of the firm Mr. V.I. Rajput had the necessary experience and has done that work. The firm is not an independent legal entity like the company and operates through its partners. In light of that, the experience has been rightly considered by the authorities.
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### Explanation:
by the contractor in envelope no. 1, correctly and completely, otherwise his envelope no. 2 will not be opened. Condition No. 4.3.15 prescribes that if the contractor intends to shift already owned or hired plant from existing location to the new location as required for this work, for that, bidder shall submit additional security as specified in clause 4.3.16. Clause 4.3.16 required the bidder to submit the scanned copy of FDR and additional security of Rs. 5.00 lakhs in envelope no. 1. The tender document states that, the Hot Mix Plant must be within 60 kms., from the center of work site, shifting of plant is allowed. As stated above, the petitioner has not disputed that his plant is at a distance of 71 kms from the center of the work site. Shifting was required and for that purpose, Rs. 5.00 lakhs additional security was required to be given. Clause 4.3.18 is abundantly clear. The document as required under 4.3.16 was not given by the contractor in envelope no. 1 viz. technical bid. As such, the petitioner is held to be disqualified. There is no room for interpretation that the said clause was not mandatory or was not a substantial condition. The language of clause 4.3.8 makes it explicitly clear that the document mentioned in clause 4.3.15 and 4.3.16 has to be given by the contractor in envelope no. 1 otherwise his envelope no. 2 will not be opened. Considering the aforesaid undisputed facts, the Committee has not committed any error in rejecting the technical bid of the petitioner.The reliance placed by the petitioner on the G.R. dt. 12.04.2017, more particularly, clause 4.5.1 and 4.5.2 would be of no avail to the petitioner. The said clauses in the G.R. would apply if any explanation is needed i.e. if there is any doubt in the minds of the committee evaluating the tender, then explanation is required to be called from the tenderer about the doubts. In the present case, the non-compliance of condition no. 4.3.16 goes to the root of the matter. It was not a deficiency which could be cured subsequently. If the same would have been permissible, then that would tantamount to re-arranging the goalposts to the privilege of the petitioner as held by the Apex Court in a case of Central Coalfields Limited (supra).At the time of opening of the technical bid, the petitioner was absent. The reason given by the petitioner is that, he was not intimated about the extended date of opening of technical bid. The ld. AGP has clarified that, the technical bids were opened on 11.12.2017. Out of 6 tenderers, 4 were present. The petitioner and his representative was absent. All six tenderers were communicated about it. We would have accepted the case of the petitioner that he was unaware of the tenders being opened on 11.12.2017, however, letter given by the petitioner on 14.12.2017 shows that he had knowledge of the tenders being opened on 11.12.2017. In the said letter, he states that, he has successfully qualified as per the tender condition. In the said letter, he also communicated the committee to accept his tender and out of six tenderers, four were present in the meeting. This would show that, the petitioner was aware of the opening of the tender on 11.12.2017. The tenders were opened on 11.12.2017. They were scrutinized and the decision was taken by the committee on 15.12.2017. No mala fides are attributed to the members of the Committee evaluating the technical bids. Moreover, even the certificate produced by the petitioner regarding experience of the work done shows that the said certificate is with regard to the experience of a major bridge and the certificate did not state that the petitioner had experience of road work. On that count also, the tender of the petitioner is rejected. The certificate produced by the petitioner describes the work being done of major bridge on Kasere Malse road. The said certificate nowhere shows the petitioner having performed the work of road. No justification is coming forth for not giving the certificate of having done the work of road. In light of the above, we do not find that the respondent-authority has faltered in the decision making process while rejecting the technical bid of the petitioner.One of the contentions of the respondents relying upon condition no. 4.5 is that, to qualify for award of the contract, each bidder in its name should have in the last five years as referred under the Appendix (A) achieved a maximum financial turnover, as per the amount indicated in Appendix in any one year, (B) satisfactorily completed as a prime contractor at least similar work of value not less than the amount indicated in the Appendix and (C) executed in one year the minimal quantity of the items of work as indicated in Appendix. The respondent No. 5 has not executed the work in its name.It appears that, the respondent No. 5 is incorporated and registered in the year 2015. One of the partners Mr. V.I. Rajput, has the necessary experience as required under clause 4.5 of a tender. It is trite that the partnership firm does not have independent legal existence and is a compendium of partners. The question whether the experience of the partner of a firm or a director of a company can be considered as an experience of the partnership firm and/or the company as the case may be, was the subject matter of consideration before the Apex Court in a case of New Horizon (supra). The Apex Court in the said case observed that the experience of the partner in the firm can be considered to be the experience of the firm.It is undisputed that, one of the partners of the firm Mr. V.I. Rajput had the necessary experience and has done that work. The firm is not an independent legal entity like the company and operates through its partners. In light of that, the experience has been rightly considered by the authorities.
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Ramrao Lala Borse & Another Vs. New India Assurance Company Ltd. & Another | 2. The claim before the Tribunal arose thus: On 19 February 2006, Deepak was travelling as a passenger in a luxury bus on Mumbai-Agra road and was occupying a seat on the drivers side. When the bus was at Atgaon in Nashik district, a truck bearing Registration No.RJ-01-G-6386 came from the opposite direction and collided with the bus resulting in grievous injuries to the passengers including Deepak. Deepak was shifted to the Government hospital at Nashik where he succumbed to his injuries. 3. At the time of the accident, the deceased was serving as an Assistant Teacher in Dadasaheb Dandekar Vidyalaya, a school run by Shishu Vihar Education Society. The claimants, who were his parents, filed a claim under Section 166 of the Motor Vehicles Act 1988 seeking compensation against the owner of the offending truck and the insurer. The Tribunal held that the accident was caused due to the rash and negligent act of the driver of the offending truck. The Tribunal accepted the evidence adduced by the Claimants that had the deceased survived, he would have been made permanent and would have been entitled to the benefit of 6th Pay Commission wages of at least Rs 40,000 per month. Adopting a multiplier of 17, the Tribunal awarded compensation of Rs 61,20,000/- to which it added a further sum of Rs 35,000/- under conventional heads. Interest was awarded @9% p.a. 4. The High Court, on an analysis of the evidence, confirmed the finding of negligence arrived at by the Tribunal. On compensation, the High Court noted that the salary certificate (Exh.42) dated 18 March 2013 indicated that the deceased was working as an Assistant Teacher on a temporary basis in the secondary section of Shishu Vihar Education Society between June 2001 and February 2006. The income certificate indicated that in February 2006 the deceased was in receipt of a salary of Rs 2,800 per month. Another certificate issued by the Headmaster on 20 March 2006 (Exh.47) indicated the same position. 5. The case of the claimants rested on the premise that the deceased was likely to be made permanent in which event, he would be entitled to a higher salary. PW 3, who was the Secretary of the Trust, deposed that though the strength of the students had increased, and the workload had increased, persons such as the deceased continued in service on a contract basis for want of sanction from the government for the post. The High Court observed that the evidence of PW 3 was that if the government were to sanction the post, considering the seniority and experience of the deceased, the Trust would have appointed him as a permanent teacher in which event his salary, according to the scales of the 6th Pay Commission, would have been Rs 40,000 per month. The finding was that the deceased at the relevant time was 29 years of age; that he had completed his B.Ed. from the University of Mumbai and was an Assistant Teacher employed on a temporary/contract basis for teaching English from 2001 to 2006. The High Court adverted to the provisions contained in the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. In this background, the High Court arrived at the finding that if the deceased were to be alive, he would have been regularized and would have drawn a salary of Rs 40,000/- per month. The High Court held that an addition of 50 per cent on account of future prospects ought to have been made. However, the High Court held that the Tribunal erred in applying a multiplier of 17. Having regard to the fact that the father of the deceased was 65 years old in 2006 and his mother was 50 years old, the High Court came to the conclusion that a multiplier of 7 should be adopted, taking the average age of the parents as 61 years. The High Court held that since the deceased was a bachelor, a deduction of 50 per cent should be made on account of personal expenses. On the above basis, the High Court computed the yearly income of the deceased at Rs 4,80,000; enhanced the income by 50% on the ground of future prospects to Rs 7,20,000, deducted a sum of Rs 3,60,000 towards personal expenses and on the basis of a multiplier of 7 arrived at a total compensation of Rs 25,20,000. The amount payable to each of the two claimants for loss of love and affection was enhanced to Rs 50,000 and funeral expenses of Rs 25,000 were allowed. The High Court has, accordingly, awarded a total compensation of Rs 26,45,000 together with interest @ 9% p.a. 6. The principal ground which has been urged in support of the appeal is that the High Court erred in applying a multiplier of 7. Since the age of the deceased at the time of the accident was 29 years, it was urged that the correct multiplier to be applied would be 17. 7. The insurer had challenged the judgment of the High Court before this Court in Special Leave Petition (C ) No 7717 of 2016. The Special Leave Petition was dismissed on 25 April 2016. The challenge of the insurer to the judgment of High Court has hence failed. Consequently, for the purpose of the present appeal, we will have to proceed on the basis of the income as accepted by the High Court. The finding of fact in regard to the income of the deceased would not be challenged in the present appeal, at the behest of the insurer in view of the above background. 8. In terms of the judgment of the Constitution Bench of this Court in National Insurance Company Limited v Pranay Sethi and the judgment in Sarla Verma v Delhi Transport Corporation the correct multiplier to be applied in the present case would be 17 having regard to the age of the deceased. As regards future prospects, an addition of 50 per cent would be warranted. | 1[ds]Consequently, for the purpose of the present appeal, we will have to proceed on the basis of the income as accepted by the High Court. The finding of fact in regard to the income of the deceased would not be challenged in the present appeal, at the behest of the insurer in view of the above background8. In terms of the judgment of the Constitution Bench of this Court in National Insurance Company Limited v Pranay Sethid the judgment in Sarla Verma v Delhi Transport Corporationcorrect multiplier to be applied in the present case would be 17 having regard to the age of the deceased. As regards future prospects, an addition of 50 per cent would be warranted. | 1 | 1,158 | 130 | ### 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:
2. The claim before the Tribunal arose thus: On 19 February 2006, Deepak was travelling as a passenger in a luxury bus on Mumbai-Agra road and was occupying a seat on the drivers side. When the bus was at Atgaon in Nashik district, a truck bearing Registration No.RJ-01-G-6386 came from the opposite direction and collided with the bus resulting in grievous injuries to the passengers including Deepak. Deepak was shifted to the Government hospital at Nashik where he succumbed to his injuries. 3. At the time of the accident, the deceased was serving as an Assistant Teacher in Dadasaheb Dandekar Vidyalaya, a school run by Shishu Vihar Education Society. The claimants, who were his parents, filed a claim under Section 166 of the Motor Vehicles Act 1988 seeking compensation against the owner of the offending truck and the insurer. The Tribunal held that the accident was caused due to the rash and negligent act of the driver of the offending truck. The Tribunal accepted the evidence adduced by the Claimants that had the deceased survived, he would have been made permanent and would have been entitled to the benefit of 6th Pay Commission wages of at least Rs 40,000 per month. Adopting a multiplier of 17, the Tribunal awarded compensation of Rs 61,20,000/- to which it added a further sum of Rs 35,000/- under conventional heads. Interest was awarded @9% p.a. 4. The High Court, on an analysis of the evidence, confirmed the finding of negligence arrived at by the Tribunal. On compensation, the High Court noted that the salary certificate (Exh.42) dated 18 March 2013 indicated that the deceased was working as an Assistant Teacher on a temporary basis in the secondary section of Shishu Vihar Education Society between June 2001 and February 2006. The income certificate indicated that in February 2006 the deceased was in receipt of a salary of Rs 2,800 per month. Another certificate issued by the Headmaster on 20 March 2006 (Exh.47) indicated the same position. 5. The case of the claimants rested on the premise that the deceased was likely to be made permanent in which event, he would be entitled to a higher salary. PW 3, who was the Secretary of the Trust, deposed that though the strength of the students had increased, and the workload had increased, persons such as the deceased continued in service on a contract basis for want of sanction from the government for the post. The High Court observed that the evidence of PW 3 was that if the government were to sanction the post, considering the seniority and experience of the deceased, the Trust would have appointed him as a permanent teacher in which event his salary, according to the scales of the 6th Pay Commission, would have been Rs 40,000 per month. The finding was that the deceased at the relevant time was 29 years of age; that he had completed his B.Ed. from the University of Mumbai and was an Assistant Teacher employed on a temporary/contract basis for teaching English from 2001 to 2006. The High Court adverted to the provisions contained in the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. In this background, the High Court arrived at the finding that if the deceased were to be alive, he would have been regularized and would have drawn a salary of Rs 40,000/- per month. The High Court held that an addition of 50 per cent on account of future prospects ought to have been made. However, the High Court held that the Tribunal erred in applying a multiplier of 17. Having regard to the fact that the father of the deceased was 65 years old in 2006 and his mother was 50 years old, the High Court came to the conclusion that a multiplier of 7 should be adopted, taking the average age of the parents as 61 years. The High Court held that since the deceased was a bachelor, a deduction of 50 per cent should be made on account of personal expenses. On the above basis, the High Court computed the yearly income of the deceased at Rs 4,80,000; enhanced the income by 50% on the ground of future prospects to Rs 7,20,000, deducted a sum of Rs 3,60,000 towards personal expenses and on the basis of a multiplier of 7 arrived at a total compensation of Rs 25,20,000. The amount payable to each of the two claimants for loss of love and affection was enhanced to Rs 50,000 and funeral expenses of Rs 25,000 were allowed. The High Court has, accordingly, awarded a total compensation of Rs 26,45,000 together with interest @ 9% p.a. 6. The principal ground which has been urged in support of the appeal is that the High Court erred in applying a multiplier of 7. Since the age of the deceased at the time of the accident was 29 years, it was urged that the correct multiplier to be applied would be 17. 7. The insurer had challenged the judgment of the High Court before this Court in Special Leave Petition (C ) No 7717 of 2016. The Special Leave Petition was dismissed on 25 April 2016. The challenge of the insurer to the judgment of High Court has hence failed. Consequently, for the purpose of the present appeal, we will have to proceed on the basis of the income as accepted by the High Court. The finding of fact in regard to the income of the deceased would not be challenged in the present appeal, at the behest of the insurer in view of the above background. 8. In terms of the judgment of the Constitution Bench of this Court in National Insurance Company Limited v Pranay Sethi and the judgment in Sarla Verma v Delhi Transport Corporation the correct multiplier to be applied in the present case would be 17 having regard to the age of the deceased. As regards future prospects, an addition of 50 per cent would be warranted.
### Response:
1
### Explanation:
Consequently, for the purpose of the present appeal, we will have to proceed on the basis of the income as accepted by the High Court. The finding of fact in regard to the income of the deceased would not be challenged in the present appeal, at the behest of the insurer in view of the above background8. In terms of the judgment of the Constitution Bench of this Court in National Insurance Company Limited v Pranay Sethid the judgment in Sarla Verma v Delhi Transport Corporationcorrect multiplier to be applied in the present case would be 17 having regard to the age of the deceased. As regards future prospects, an addition of 50 per cent would be warranted.
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Smt. Kusum Lata Singhal Vs. Commissioner Of Income Tax Rajasthan,Jaipur And Ors | that the authorisation under section 132(1) of the Act was not in accordance with law and that, therefore, the search and seizure of the assets could not be said to have been made in accordance with law. The High Court noted that, in view of the fact that by virtue of the power under section 132(7) an order had been made under section 132(5) of the Act against the husband of the petitioner, the valuables, etc., could not be ordered to be returned to the petitionerAggrieved thereby, the petitioner seeks to challenge the said order under article 136 of the Constitution of India. Mr. C. S. Agarwal, appearing for the petitioner, contended before us that if the search and seizure were illegal, then the evidence obtained by such search and seizure could be utilised in subsequent proceedings, but the items of jewellery and goods worth, according to him, over Rs. 2, 97, 000 were liable to be returned. We are, however, unable to entertain this appeal. In the instant case, the husband and the wife stayed in the same premises. The authorisation for search and seizure in respect of account books and goods which were seized was against the wife but in the proceedings under section 132(5) of the Act, the husband, Mr. Singhal, has contended and claimed that the ornaments in question or the jewellery belonged to him Mr. Vaish, learned counsel appearing for the Revenue, has drawn our attention to an authorisation issued against the husband, Mr. Singhal, under sub-section (5) of section 132 of the Act. Indeed, Mr. R. K. Singhal has stated on oath before the authorised officer at the time of search that the same belonged to him and he has claimed the same to be treated as representing his undisclosed income. Mr. R. K. Singhal, the husband, as his evidence has recorded in the proceedings against him, has disclosed the same and surrendered a total sum of over Rs. 4, 00, 000 consisting of undisclosed cash of Rs. 1, 16, 550 and excessive jewellery worth Rs. 2, 97, 750 received from his possession as his income for the purpose of income-tax assessment for the current year, which he claims to have earned from his business. Therefore, it appears that there is a dispute as to who is the owner of the jewellery and ornaments or, in other words, to whom these belong. If, in such a situation, the High Court has declined to direct return of items of jewellery and ornaments, such decision cannot be faulted. Even though the search and seizure has been declared illegal, it cannot be illegal and the question of dispute about the items not being urged before the High Court, we cannot say that the High Court has committed any error in this case thereby requiring interference by this court, or, in other words, that injustice has been caused to any partyIt is well-settled that the dispute as to the ownership of jewellery in question cannot be resolved in proceedings under article 226 of the Constitution in the manner sought for by the petitioner. Mr. Agarwal drew our attention to the decision in Assainar v. ITO wherein the Kerala High Court has observed that the goods which were seized from the custody of a particular person should normally be returned to the person from whose custody the same had been seized. The aforesaid may be the position where there is no dispute as to the ownership of the goods in question. In such a situation, return of the goods to the person from whose custody the same are seized may be possible but the said decision or the observations therein would be no authority in support of the petitioners contention in the instant case where there is a dispute Our attention was also drawn to certain observations of this court in J. R. Malhotra v. Addl. Sessions Judge, Jullundur in support of the proposition that the Revenue could not indirectly keep the money seized on the plea that there would be a demand and that the money may be kept by the Revenue where surrender and seizure was wrong. We are afraid that the aforesaid observations of this court are also of no avail in the light of the perspective that we have mentioned hereinbefore. The said observations were made entirely in a different contextOur attention was also drawn to the observations of this court in Commissioner of Commercial Taxes v. Ramkishan Shrikishan Jhaver in support of the proposition that when a search was found illegal, the goods should be returned. Normally speaking, that would be so. This proposition is unexceptionable but in the light of the controversy as we have perceived in this case, we are clearly of the opinion that this submission will not be of any assistance in doing justice in this caseMr. Agarwal further contended that if the proceedings under section 132(5) for the original search were held to be invalid, then all proceedings thereafter would be invalid and, therefore, the proceedings initiated as result of that search even against the husband would be invalid and such statement of the husband recorded cannot be utilised any further. In the instant controversy, we are not concerned with whether the proceedings against the husband under section 132(5) of the Act are valid or not but, irrespective of the validity of the proceedings, the evidence or testimony as mentioned hereinbefore, wherein he has asserted the ornaments and jewellery to be his, cannot be wiped out and does not become non-existent. After all, we are concerned with the contention of the husband that the jewellery in question belongs to him, in this case. The aforesaid being the factual matrix, the High Court, in our opinion, was pre-eminently justified in declining to direct return of the identical jewellery and other items to the wife. If that is the position, then it cannot be said that the High Court has committed any error in law which requires rectification by this court | 0[ds]Our attention was also drawn to the observations of this court in Commissioner of Commercial Taxes v. Ramkishan Shrikishan Jhaver in support of the proposition that when a search was found illegal, the goods should be returned. Normally speaking, that would be so. This proposition is unexceptionable but in the light of the controversy as we have perceived in this case, we are clearly of the opinion that this submission will not be of any assistance in doing justice in this caseMr. Agarwal further contended that if the proceedings under section 132(5) for the original search were held to be invalid, then all proceedings thereafter would be invalid and, therefore, the proceedings initiated as result of that search even against the husband would be invalid and such statement of the husband recorded cannot be utilised any further. In the instant controversy, we are not concerned with whether the proceedings against the husband under section 132(5) of the Act are valid or not but, irrespective of the validity of the proceedings, the evidence or testimony as mentioned hereinbefore, wherein he has asserted the ornaments and jewellery to be his, cannot be wiped out and does not become non-existent. After all, we are concerned with the contention of the husband that the jewellery in question belongs to him, in this case. The aforesaid being the factual matrix, the High Court, in our opinion, was pre-eminently justified in declining to direct return of the identical jewellery and other items to the wife. If that is the position, then it cannot be said that the High Court has committed any error in law which requires rectification by this court | 0 | 1,550 | 312 | ### Instruction:
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that the authorisation under section 132(1) of the Act was not in accordance with law and that, therefore, the search and seizure of the assets could not be said to have been made in accordance with law. The High Court noted that, in view of the fact that by virtue of the power under section 132(7) an order had been made under section 132(5) of the Act against the husband of the petitioner, the valuables, etc., could not be ordered to be returned to the petitionerAggrieved thereby, the petitioner seeks to challenge the said order under article 136 of the Constitution of India. Mr. C. S. Agarwal, appearing for the petitioner, contended before us that if the search and seizure were illegal, then the evidence obtained by such search and seizure could be utilised in subsequent proceedings, but the items of jewellery and goods worth, according to him, over Rs. 2, 97, 000 were liable to be returned. We are, however, unable to entertain this appeal. In the instant case, the husband and the wife stayed in the same premises. The authorisation for search and seizure in respect of account books and goods which were seized was against the wife but in the proceedings under section 132(5) of the Act, the husband, Mr. Singhal, has contended and claimed that the ornaments in question or the jewellery belonged to him Mr. Vaish, learned counsel appearing for the Revenue, has drawn our attention to an authorisation issued against the husband, Mr. Singhal, under sub-section (5) of section 132 of the Act. Indeed, Mr. R. K. Singhal has stated on oath before the authorised officer at the time of search that the same belonged to him and he has claimed the same to be treated as representing his undisclosed income. Mr. R. K. Singhal, the husband, as his evidence has recorded in the proceedings against him, has disclosed the same and surrendered a total sum of over Rs. 4, 00, 000 consisting of undisclosed cash of Rs. 1, 16, 550 and excessive jewellery worth Rs. 2, 97, 750 received from his possession as his income for the purpose of income-tax assessment for the current year, which he claims to have earned from his business. Therefore, it appears that there is a dispute as to who is the owner of the jewellery and ornaments or, in other words, to whom these belong. If, in such a situation, the High Court has declined to direct return of items of jewellery and ornaments, such decision cannot be faulted. Even though the search and seizure has been declared illegal, it cannot be illegal and the question of dispute about the items not being urged before the High Court, we cannot say that the High Court has committed any error in this case thereby requiring interference by this court, or, in other words, that injustice has been caused to any partyIt is well-settled that the dispute as to the ownership of jewellery in question cannot be resolved in proceedings under article 226 of the Constitution in the manner sought for by the petitioner. Mr. Agarwal drew our attention to the decision in Assainar v. ITO wherein the Kerala High Court has observed that the goods which were seized from the custody of a particular person should normally be returned to the person from whose custody the same had been seized. The aforesaid may be the position where there is no dispute as to the ownership of the goods in question. In such a situation, return of the goods to the person from whose custody the same are seized may be possible but the said decision or the observations therein would be no authority in support of the petitioners contention in the instant case where there is a dispute Our attention was also drawn to certain observations of this court in J. R. Malhotra v. Addl. Sessions Judge, Jullundur in support of the proposition that the Revenue could not indirectly keep the money seized on the plea that there would be a demand and that the money may be kept by the Revenue where surrender and seizure was wrong. We are afraid that the aforesaid observations of this court are also of no avail in the light of the perspective that we have mentioned hereinbefore. The said observations were made entirely in a different contextOur attention was also drawn to the observations of this court in Commissioner of Commercial Taxes v. Ramkishan Shrikishan Jhaver in support of the proposition that when a search was found illegal, the goods should be returned. Normally speaking, that would be so. This proposition is unexceptionable but in the light of the controversy as we have perceived in this case, we are clearly of the opinion that this submission will not be of any assistance in doing justice in this caseMr. Agarwal further contended that if the proceedings under section 132(5) for the original search were held to be invalid, then all proceedings thereafter would be invalid and, therefore, the proceedings initiated as result of that search even against the husband would be invalid and such statement of the husband recorded cannot be utilised any further. In the instant controversy, we are not concerned with whether the proceedings against the husband under section 132(5) of the Act are valid or not but, irrespective of the validity of the proceedings, the evidence or testimony as mentioned hereinbefore, wherein he has asserted the ornaments and jewellery to be his, cannot be wiped out and does not become non-existent. After all, we are concerned with the contention of the husband that the jewellery in question belongs to him, in this case. The aforesaid being the factual matrix, the High Court, in our opinion, was pre-eminently justified in declining to direct return of the identical jewellery and other items to the wife. If that is the position, then it cannot be said that the High Court has committed any error in law which requires rectification by this court
### Response:
0
### Explanation:
Our attention was also drawn to the observations of this court in Commissioner of Commercial Taxes v. Ramkishan Shrikishan Jhaver in support of the proposition that when a search was found illegal, the goods should be returned. Normally speaking, that would be so. This proposition is unexceptionable but in the light of the controversy as we have perceived in this case, we are clearly of the opinion that this submission will not be of any assistance in doing justice in this caseMr. Agarwal further contended that if the proceedings under section 132(5) for the original search were held to be invalid, then all proceedings thereafter would be invalid and, therefore, the proceedings initiated as result of that search even against the husband would be invalid and such statement of the husband recorded cannot be utilised any further. In the instant controversy, we are not concerned with whether the proceedings against the husband under section 132(5) of the Act are valid or not but, irrespective of the validity of the proceedings, the evidence or testimony as mentioned hereinbefore, wherein he has asserted the ornaments and jewellery to be his, cannot be wiped out and does not become non-existent. After all, we are concerned with the contention of the husband that the jewellery in question belongs to him, in this case. The aforesaid being the factual matrix, the High Court, in our opinion, was pre-eminently justified in declining to direct return of the identical jewellery and other items to the wife. If that is the position, then it cannot be said that the High Court has committed any error in law which requires rectification by this court
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JAYAN AND ANR Vs. STATE OF KERALA | Parade was not held and the witness never knew accused before the incident. 15. It is well settled that T.I Parade is a part of investigation and it is not a substantive evidence. The question of holding T.I Parade arises when the accused is not known to the witness earlier. The identification by a witness of the accused in the Court who has for the first time seen the accused in the incident of offence is a weak piece of evidence especially when there is a large time gap between the date of the incident and the date of recording of his evidence. In such a case, T.I Parade may make the identification of the accused by the witness before the Court trustworthy. However, the absence of T.I Parade may not be ipso facto sufficient to discard the testimony of a witness who has identified the accused in the Court. In a given case, there may be otherwise sufficient corroboration to the testimony of the witness. In some cases, the Court may be impressed with testimony of the prosecution witnesses which is of a sterling quality. In such cases, the testimony of such a witness can be believed. In the present case, PW13 accepted that he is not able to identify any persons whom he had seen 11 years back. However, he asserted that he can identify the accused Nos.2 and 4 though he had seen them for the first time more than 11 years back on the date of the incident. Therefore, in the facts of the case, the evidence of PW13 as regards the identification of the accused Nos.2 and 4 in the Court cannot be accepted. 16. PW5 who was working as ASI at the concerned police station identified the accused No.2. However, he has not stated that the accused No.2 who was arrested at the spot was driving the truck. PW6 Shri A. S Krishnan was working as a Sales Tax Inspector at the relevant time. He stated that the truck was stopped at 12:30p.m at the check post when the cleaner of the truck claimed that it contained dry coconut leaves. He claimed that a clerk Shri Balachandran climbed on the top of the truck for taking search. He claimed that as the driver started the truck, the said Shri Balachandran jumped from the truck. The said Shri Balachandran has not been examined as a witness though he is an employee of the department. The witness claimed that he reached the place where the truck was stopped. He stated that the driver of the truck was arrested who was standing there. He identified the driver as the accused No.2. However, the witness has not claimed that he had seen the accused No.2 driving the truck. 17. PW7, who was head constable attached to the concerned police station claimed that the truck was stopped and the driver and two others ran away. He identified the accused No.2 as the person who was driving the truck. He also identified the accused No.4 as a person who ran away. However, the witness has not stated he had seen the accused No.2 driving the truck. 18. PW8 was a police constable working at the concerned police station. He claimed that after the truck was stopped, three persons in the truck ran away. One was caught who disclosed that he was the driver of the truck. He identified the accused No.2 in the Court. However, he has not seen accused No.2 driving the truck. PW10 Shri N. George was a police constable attached to the concerned police station who claimed that after the truck was stopped, three persons inside the truck ran away and one person who was stopped, claimed to be the driver of the truck. However, he has not stated that he had seen the accused No.2 driving the truck. He also identified the accused No. 4 as a person who ran away from the truck. 19. Now, we turn to the evidence of PW12 Mr. R. Prathapan Nair who was the investigation officer. He stated that on 25th July 1999, he received information while he was on duty in the police station that a truck bearing number KLY-730 went passed check post causing damage to barricades and it was transporting some illegal articles. He along with the police party went out to locate the truck which was found near Khadi Board at Kizhamachal and tried to stop it. He alleged that on seeing the police party, the driver of the truck stopped the same. According to him, the driver and two others stepped out from the truck and ran away. The police party could get hold of the driver of the truck who was arrested. He stated that in the mahazar, the presence of accused No.2 was noted. He identified the accused No.2 in the Court. In the cross examination, he stated that as a police vehicle was not available, a private vehicle was used and the driver of the said vehicle is not a witness. He accepted that though mahazar records that a copy of RC book was found in the truck, it is not produced in the Court. He admitted that though he enquired with RTO, the record of RTO is not produced in the Court. It is pertinent to note that in the examination chief, PW12 did not state that he had seen the accused No.2 driving the truck. Even in this case, the evidence of PW12 has been recorded more than 11 years after the date of the incident. 20. It is very difficult to believe that PW13 who was not knowing the accused Nos.2 and 4 prior to the incident could identify them in the Court after lapse of 11 years. That is also the case with all the official witnesses. The prosecution has chosen not to produce evidence regarding the correct registration number of the truck and the name of the registered owner thereof. Therefore, the entire prosecution case becomes doubtful. | 1[ds]It is pertinent to note that Shri Sajan Mathai and Shri Chandran who were the alleged prior owners of the truck were not examined by the prosecution. Surprisingly, no investigation was made whether the correct registration number of the truck was KLY-730 or KLB-7589. It appears that the prosecution came to the conclusion that the correct registration number of the truck was KLB-7589 on the basis of a photocopy of R.C book allegedly found in the seized truck. However, as admitted by PW12 - the investigation officer, the said photocopy of the R.C book was not produced by the prosecution.13. A very shocking aspect of the case is that the prosecution did not even produce the record of the RTO in respect of the registration of the truck. Though the chassis and engine number of the truck were recorded in the mahazar, no investigation was carried out to ascertain the correct registration number of the offending truck. Thus, the identity of the truck itself becomes doubtful. The most relevant evidence of the record of RTO showing the name of the registered owner was withheld by the prosecution. There is no documentary evidence placed on record to show that the accused No. 1 was the owner of the offending truck at the relevant time. There is no other evidence pressed into service by the prosecution against the accused No.1. Therefore, we are of the considered view that it is a case of no evidence against the accused No.1. Thus, there was no justification for convicting the accused No. 1.14. Now, coming to the case against the accused Nos.2 and 4, apart from official witnesses, the prosecution has relied upon the evidence PW13 Shri Madhu who was stated to be an independent witness. The witness claimed that he was standing by the side of the road when he saw a truck passing through containing coconut leaves. He claims that after the truck passed through, a white ambassador car followed the truck. After some time, policemen came there who enquired with him whether he had seen a truck containing coconut leaves passing through. The witness claimed that he followed the police and he saw the driver running out of the truck after stopping the truck. He stated that the driver was caught by the police. The witness purported to identify the accused Nos.2 and 4 who were present in the Court as the persons who ran away from the truck. In the cross examination, he accepted that he was not able to identify all the persons whom he had seen 11 years back. But he claimed that he could identify the accused No.2 and he knew his name. He accepted that before the incident of 25th July 1999, he had not seen the accused and even any time thereafter, he had not seen the accused. He was examined before the Court on 20th April 2011. Thus, he deposed before the Court after 11 years and 9 months after the date of the incident. It is pertinent to note that admittedly T.I Parade was not held and the witness never knew accused before the incident.15. It is well settled that T.I Parade is a part of investigation and it is not a substantive evidence. The question of holding T.I Parade arises when the accused is not known to the witness earlier. The identification by a witness of the accused in the Court who has for the first time seen the accused in the incident of offence is a weak piece of evidence especially when there is a large time gap between the date of the incident and the date of recording of his evidence. In such a case, T.I Parade may make the identification of the accused by the witness before the Court trustworthy. However, the absence of T.I Parade may not be ipso facto sufficient to discard the testimony of a witness who has identified the accused in the Court. In a given case, there may be otherwise sufficient corroboration to the testimony of the witness. In some cases, the Court may be impressed with testimony of the prosecution witnesses which is of a sterling quality. In such cases, the testimony of such a witness can be believed. In the present case, PW13 accepted that he is not able to identify any persons whom he had seen 11 years back. However, he asserted that he can identify the accused Nos.2 and 4 though he had seen them for the first time more than 11 years back on the date of the incident. Therefore, in the facts of the case, the evidence of PW13 as regards the identification of the accused Nos.2 and 4 in the Court cannot be accepted.16. PW5 who was working as ASI at the concerned police station identified the accused No.2. However, he has not stated that the accused No.2 who was arrested at the spot was driving the truck. PW6 Shri A. S Krishnan was working as a Sales Tax Inspector at the relevant time. He stated that the truck was stopped at 12:30p.m at the check post when the cleaner of the truck claimed that it contained dry coconut leaves. He claimed that a clerk Shri Balachandran climbed on the top of the truck for taking search. He claimed that as the driver started the truck, the said Shri Balachandran jumped from the truck. The said Shri Balachandran has not been examined as a witness though he is an employee of the department. The witness claimed that he reached the place where the truck was stopped. He stated that the driver of the truck was arrested who was standing there. He identified the driver as the accused No.2. However, the witness has not claimed that he had seen the accused No.2 driving the truck.19. Now, we turn to the evidence of PW12 Mr. R. Prathapan Nair who was the investigation officer. He stated that on 25th July 1999, he received information while he was on duty in the police station that a truck bearing number KLY-730 went passed check post causing damage to barricades and it was transporting some illegal articles. He along with the police party went out to locate the truck which was found near Khadi Board at Kizhamachal and tried to stop it. He alleged that on seeing the police party, the driver of the truck stopped the same. According to him, the driver and two others stepped out from the truck and ran away. The police party could get hold of the driver of the truck who was arrested. He stated that in the mahazar, the presence of accused No.2 was noted. He identified the accused No.2 in the Court. In the cross examination, he stated that as a police vehicle was not available, a private vehicle was used and the driver of the said vehicle is not a witness. He accepted that though mahazar records that a copy of RC book was found in the truck, it is not produced in the Court. He admitted that though he enquired with RTO, the record of RTO is not produced in the Court. It is pertinent to note that in the examination chief, PW12 did not state that he had seen the accused No.2 driving the truck. Even in this case, the evidence of PW12 has been recorded more than 11 years after the date of the incident.20. It is very difficult to believe that PW13 who was not knowing the accused Nos.2 and 4 prior to the incident could identify them in the Court after lapse of 11 years. That is also the case with all the official witnesses. The prosecution has chosen not to produce evidence regarding the correct registration number of the truck and the name of the registered owner thereof. Therefore, the entire prosecution case becomes doubtful. | 1 | 3,938 | 1,418 | ### 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:
Parade was not held and the witness never knew accused before the incident. 15. It is well settled that T.I Parade is a part of investigation and it is not a substantive evidence. The question of holding T.I Parade arises when the accused is not known to the witness earlier. The identification by a witness of the accused in the Court who has for the first time seen the accused in the incident of offence is a weak piece of evidence especially when there is a large time gap between the date of the incident and the date of recording of his evidence. In such a case, T.I Parade may make the identification of the accused by the witness before the Court trustworthy. However, the absence of T.I Parade may not be ipso facto sufficient to discard the testimony of a witness who has identified the accused in the Court. In a given case, there may be otherwise sufficient corroboration to the testimony of the witness. In some cases, the Court may be impressed with testimony of the prosecution witnesses which is of a sterling quality. In such cases, the testimony of such a witness can be believed. In the present case, PW13 accepted that he is not able to identify any persons whom he had seen 11 years back. However, he asserted that he can identify the accused Nos.2 and 4 though he had seen them for the first time more than 11 years back on the date of the incident. Therefore, in the facts of the case, the evidence of PW13 as regards the identification of the accused Nos.2 and 4 in the Court cannot be accepted. 16. PW5 who was working as ASI at the concerned police station identified the accused No.2. However, he has not stated that the accused No.2 who was arrested at the spot was driving the truck. PW6 Shri A. S Krishnan was working as a Sales Tax Inspector at the relevant time. He stated that the truck was stopped at 12:30p.m at the check post when the cleaner of the truck claimed that it contained dry coconut leaves. He claimed that a clerk Shri Balachandran climbed on the top of the truck for taking search. He claimed that as the driver started the truck, the said Shri Balachandran jumped from the truck. The said Shri Balachandran has not been examined as a witness though he is an employee of the department. The witness claimed that he reached the place where the truck was stopped. He stated that the driver of the truck was arrested who was standing there. He identified the driver as the accused No.2. However, the witness has not claimed that he had seen the accused No.2 driving the truck. 17. PW7, who was head constable attached to the concerned police station claimed that the truck was stopped and the driver and two others ran away. He identified the accused No.2 as the person who was driving the truck. He also identified the accused No.4 as a person who ran away. However, the witness has not stated he had seen the accused No.2 driving the truck. 18. PW8 was a police constable working at the concerned police station. He claimed that after the truck was stopped, three persons in the truck ran away. One was caught who disclosed that he was the driver of the truck. He identified the accused No.2 in the Court. However, he has not seen accused No.2 driving the truck. PW10 Shri N. George was a police constable attached to the concerned police station who claimed that after the truck was stopped, three persons inside the truck ran away and one person who was stopped, claimed to be the driver of the truck. However, he has not stated that he had seen the accused No.2 driving the truck. He also identified the accused No. 4 as a person who ran away from the truck. 19. Now, we turn to the evidence of PW12 Mr. R. Prathapan Nair who was the investigation officer. He stated that on 25th July 1999, he received information while he was on duty in the police station that a truck bearing number KLY-730 went passed check post causing damage to barricades and it was transporting some illegal articles. He along with the police party went out to locate the truck which was found near Khadi Board at Kizhamachal and tried to stop it. He alleged that on seeing the police party, the driver of the truck stopped the same. According to him, the driver and two others stepped out from the truck and ran away. The police party could get hold of the driver of the truck who was arrested. He stated that in the mahazar, the presence of accused No.2 was noted. He identified the accused No.2 in the Court. In the cross examination, he stated that as a police vehicle was not available, a private vehicle was used and the driver of the said vehicle is not a witness. He accepted that though mahazar records that a copy of RC book was found in the truck, it is not produced in the Court. He admitted that though he enquired with RTO, the record of RTO is not produced in the Court. It is pertinent to note that in the examination chief, PW12 did not state that he had seen the accused No.2 driving the truck. Even in this case, the evidence of PW12 has been recorded more than 11 years after the date of the incident. 20. It is very difficult to believe that PW13 who was not knowing the accused Nos.2 and 4 prior to the incident could identify them in the Court after lapse of 11 years. That is also the case with all the official witnesses. The prosecution has chosen not to produce evidence regarding the correct registration number of the truck and the name of the registered owner thereof. Therefore, the entire prosecution case becomes doubtful.
### Response:
1
### Explanation:
saw a truck passing through containing coconut leaves. He claims that after the truck passed through, a white ambassador car followed the truck. After some time, policemen came there who enquired with him whether he had seen a truck containing coconut leaves passing through. The witness claimed that he followed the police and he saw the driver running out of the truck after stopping the truck. He stated that the driver was caught by the police. The witness purported to identify the accused Nos.2 and 4 who were present in the Court as the persons who ran away from the truck. In the cross examination, he accepted that he was not able to identify all the persons whom he had seen 11 years back. But he claimed that he could identify the accused No.2 and he knew his name. He accepted that before the incident of 25th July 1999, he had not seen the accused and even any time thereafter, he had not seen the accused. He was examined before the Court on 20th April 2011. Thus, he deposed before the Court after 11 years and 9 months after the date of the incident. It is pertinent to note that admittedly T.I Parade was not held and the witness never knew accused before the incident.15. It is well settled that T.I Parade is a part of investigation and it is not a substantive evidence. The question of holding T.I Parade arises when the accused is not known to the witness earlier. The identification by a witness of the accused in the Court who has for the first time seen the accused in the incident of offence is a weak piece of evidence especially when there is a large time gap between the date of the incident and the date of recording of his evidence. In such a case, T.I Parade may make the identification of the accused by the witness before the Court trustworthy. However, the absence of T.I Parade may not be ipso facto sufficient to discard the testimony of a witness who has identified the accused in the Court. In a given case, there may be otherwise sufficient corroboration to the testimony of the witness. In some cases, the Court may be impressed with testimony of the prosecution witnesses which is of a sterling quality. In such cases, the testimony of such a witness can be believed. In the present case, PW13 accepted that he is not able to identify any persons whom he had seen 11 years back. However, he asserted that he can identify the accused Nos.2 and 4 though he had seen them for the first time more than 11 years back on the date of the incident. Therefore, in the facts of the case, the evidence of PW13 as regards the identification of the accused Nos.2 and 4 in the Court cannot be accepted.16. PW5 who was working as ASI at the concerned police station identified the accused No.2. However, he has not stated that the accused No.2 who was arrested at the spot was driving the truck. PW6 Shri A. S Krishnan was working as a Sales Tax Inspector at the relevant time. He stated that the truck was stopped at 12:30p.m at the check post when the cleaner of the truck claimed that it contained dry coconut leaves. He claimed that a clerk Shri Balachandran climbed on the top of the truck for taking search. He claimed that as the driver started the truck, the said Shri Balachandran jumped from the truck. The said Shri Balachandran has not been examined as a witness though he is an employee of the department. The witness claimed that he reached the place where the truck was stopped. He stated that the driver of the truck was arrested who was standing there. He identified the driver as the accused No.2. However, the witness has not claimed that he had seen the accused No.2 driving the truck.19. Now, we turn to the evidence of PW12 Mr. R. Prathapan Nair who was the investigation officer. He stated that on 25th July 1999, he received information while he was on duty in the police station that a truck bearing number KLY-730 went passed check post causing damage to barricades and it was transporting some illegal articles. He along with the police party went out to locate the truck which was found near Khadi Board at Kizhamachal and tried to stop it. He alleged that on seeing the police party, the driver of the truck stopped the same. According to him, the driver and two others stepped out from the truck and ran away. The police party could get hold of the driver of the truck who was arrested. He stated that in the mahazar, the presence of accused No.2 was noted. He identified the accused No.2 in the Court. In the cross examination, he stated that as a police vehicle was not available, a private vehicle was used and the driver of the said vehicle is not a witness. He accepted that though mahazar records that a copy of RC book was found in the truck, it is not produced in the Court. He admitted that though he enquired with RTO, the record of RTO is not produced in the Court. It is pertinent to note that in the examination chief, PW12 did not state that he had seen the accused No.2 driving the truck. Even in this case, the evidence of PW12 has been recorded more than 11 years after the date of the incident.20. It is very difficult to believe that PW13 who was not knowing the accused Nos.2 and 4 prior to the incident could identify them in the Court after lapse of 11 years. That is also the case with all the official witnesses. The prosecution has chosen not to produce evidence regarding the correct registration number of the truck and the name of the registered owner thereof. Therefore, the entire prosecution case becomes doubtful.
|
The State of Gujarat and others Vs. R.J. Pathan and others | Bench granted the interim relief and directed to maintain status quo and pursuant to the said interim order, the respondents were continued in service with the Government. In the year 2021, when the said LPA was taken up for further hearing, it was submitted on behalf of the respondents that as by now the respondents have worked for seventeen years, the State may be directed to absorb them in the Government and their services may be regularised. By observing that as the respondents have worked for a long time, i.e., for seventeen years, the Division Bench has directed the State to consider the cases of the respondents for absorption/regularisation and if required, by creating supernumerary posts. However, while issuing such a direction, the High Court has not at all considered the fact that the respondents were continued in service pursuant to the interim order passed by the High Court. The Division Bench has also not appreciated the fact and/or considered the fact that the respondents were initially appointed for a period of eleven months and on a fixed salary and that too, in a temporary unit – Project Implementation Unit, which was created only for the purpose of rehabilitation pursuant to the earthquake for Post-Earthquake Redevelopment Programme. Therefore, the unit in which the respondents were appointed was itself a temporary unit and not a regular establishment. The posts on which the respondents were appointed and working were not the sanctioned posts in any regular establishment of the Government. Therefore, when the respondents were appointed on a fixed term and on a fixed salary in a temporary unit which was created for a particular project, no such direction could have been issued by the Division Bench of the High Court to absorb them in Government service and to regularise their services. The High Court has observed that even while absorbing and/or regularising the services of the respondents, the State Government may create supernumerary posts. Such a direction to create supernumerary posts is unsustainable. Such a direction is wholly without jurisdiction. No such direction can be issued by the High Court for absorption/regularisation of the employees who were appointed in a temporary unit which was created for a particular project and that too, by creating supernumerary posts. 7. From the impugned judgment and order passed by the Division Bench of the High Court, it appears that what has weighed with the High Court was that the respondents were continued in service for a long time, i.e., seventeen years. However, the High Court has not considered that out of seventeen years, the respondents continued in service for ten years pursuant to the interim order passed by the High Court. Therefore, even considering the decision of this Court in the case of Umadevi (supra), the period for which the employees have continued in service pursuant to the interim order is to be excluded and not to be counted. The High Court has totally missed the aforesaid aspect. 8. Now, so far as the reliance placed upon the decision of this Court in the case of Umadevi (supra) and the subsequent decision of this Court in the case of Narendra Kumar Tiwari (supra), relied upon by the learned counsel appearing on behalf of the respondents is concerned, none of the aforesaid decisions shall be applicable to the facts of the case on hand. The purpose and intent of the decision in Umadevi (supra) was, (1) to prevent irregular or illegal appointments in the future, and (2) to confer a benefit on those who had been irregularly appointed in the past and who have continued for a very long time. The decision of Umadevi (supra) may be applicable in a case where the appointments are irregular on the sanctioned posts in regular establishment. The same does not apply to temporary appointments made in a project/programme. 8.1 Even in the case of Narendra Kumar Tiwari (supra) also, it was a case of irregularly appointed employees. Even otherwise, in view the facts and circumstances of Narendra Kumar Tiwari (supra), the said decision shall not be applicable to the facts of the case on hand. The case before this Court was with respect to the employees working with the State of Jharkhand which was created only on 15.11.2000 and therefore it was contended on behalf of the irregularly appointed employees that no one could have completed ten years of service with the State of Jharkhand on the cut-off date of 10.04.2006, which was the cut-off date fixed under the relevant rules of the State of Jharkhand. 9. Even otherwise, it is to be noted that though not required, the State, instead of putting an end to the services of the respondents, graciously placed the respondents in the Indian Red Cross Society. No duty was cast upon the State to transfer them to another establishment in a case where it is found that the employees are appointed in a temporary unit and on a temporary contractual basis and on a fixed term salary and on closure of the temporary unit, their services are not required. However, the State Government was gracious enough to place the respondents in the Indian Red Cross Society, which the respondents did not accept. 10. From the impugned order passed by the Division Bench of the High Court it appears that the High Court has observed hereinabove that in the peculiar facts and circumstances of the case, it is directed that the order of absorption and regularisation and if necessary, by creating supernumerary posts, will not be treated as a precedent in other cases. Even such a direction could not have been passed by the Division Bench of the High Court as there were no peculiar facts and circumstances which warranted the above observation. No such order of absorption and/or regularisation even if required for creating supernumerary posts and not to treat the same as precedent could have been passed by the High Court in exercise of powers under Article 226 of the Constitution of India. | 0[ds]The High Court has observed that even while absorbing and/or regularising the services of the respondents, the State Government may create supernumerary posts. Such a direction to create supernumerary posts is unsustainable. Such a direction is wholly without jurisdiction. No such direction can be issued by the High Court for absorption/regularisation of the employees who were appointed in a temporary unit which was created for a particular project and that too, by creating supernumerary posts.7. From the impugned judgment and order passed by the Division Bench of the High Court, it appears that what has weighed with the High Court was that the respondents were continued in service for a long time, i.e., seventeen years. However, the High Court has not considered that out of seventeen years, the respondents continued in service for ten years pursuant to the interim order passed by the High Court. Therefore, even considering the decision of this Court in the case of Umadevi (supra), the period for which the employees have continued in service pursuant to the interim order is to be excluded and not to be counted. The High Court has totally missed the aforesaid aspect.8. Now, so far as the reliance placed upon the decision of this Court in the case of Umadevi (supra) and the subsequent decision of this Court in the case of Narendra Kumar Tiwari (supra), relied upon by the learned counsel appearing on behalf of the respondents is concerned, none of the aforesaid decisions shall be applicable to the facts of the case on hand. The purpose and intent of the decision in Umadevi (supra) was, (1) to prevent irregular or illegal appointments in the future, and (2) to confer a benefit on those who had been irregularly appointed in the past and who have continued for a very long time. The decision of Umadevi (supra) may be applicable in a case where the appointments are irregular on the sanctioned posts in regular establishment. The same does not apply to temporary appointments made in a project/programme.8.1 Even in the case of Narendra Kumar Tiwari (supra) also, it was a case of irregularly appointed employees. Even otherwise, in view the facts and circumstances of Narendra Kumar Tiwari (supra), the said decision shall not be applicable to the facts of the case on hand. The case before this Court was with respect to the employees working with the State of Jharkhand which was created only on 15.11.2000 and therefore it was contended on behalf of the irregularly appointed employees that no one could have completed ten years of service with the State of Jharkhand on the cut-off date of 10.04.2006, which was the cut-off date fixed under the relevant rules of the State of Jharkhand.9. Even otherwise, it is to be noted that though not required, the State, instead of putting an end to the services of the respondents, graciously placed the respondents in the Indian Red Cross Society. No duty was cast upon the State to transfer them to another establishment in a case where it is found that the employees are appointed in a temporary unit and on a temporary contractual basis and on a fixed term salary and on closure of the temporary unit, their services are not required. However, the State Government was gracious enough to place the respondents in the Indian Red Cross Society, which the respondents did not accept.10. From the impugned order passed by the Division Bench of the High Court it appears that the High Court has observed hereinabove that in the peculiar facts and circumstances of the case, it is directed that the order of absorption and regularisation and if necessary, by creating supernumerary posts, will not be treated as a precedent in other cases. Even such a direction could not have been passed by the Division Bench of the High Court as there were no peculiar facts and circumstances which warranted the above observation. No such order of absorption and/or regularisation even if required for creating supernumerary posts and not to treat the same as precedent could have been passed by the High Court in exercise of powers under Article 226 of the Constitution of India. | 0 | 2,605 | 765 | ### 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:
Bench granted the interim relief and directed to maintain status quo and pursuant to the said interim order, the respondents were continued in service with the Government. In the year 2021, when the said LPA was taken up for further hearing, it was submitted on behalf of the respondents that as by now the respondents have worked for seventeen years, the State may be directed to absorb them in the Government and their services may be regularised. By observing that as the respondents have worked for a long time, i.e., for seventeen years, the Division Bench has directed the State to consider the cases of the respondents for absorption/regularisation and if required, by creating supernumerary posts. However, while issuing such a direction, the High Court has not at all considered the fact that the respondents were continued in service pursuant to the interim order passed by the High Court. The Division Bench has also not appreciated the fact and/or considered the fact that the respondents were initially appointed for a period of eleven months and on a fixed salary and that too, in a temporary unit – Project Implementation Unit, which was created only for the purpose of rehabilitation pursuant to the earthquake for Post-Earthquake Redevelopment Programme. Therefore, the unit in which the respondents were appointed was itself a temporary unit and not a regular establishment. The posts on which the respondents were appointed and working were not the sanctioned posts in any regular establishment of the Government. Therefore, when the respondents were appointed on a fixed term and on a fixed salary in a temporary unit which was created for a particular project, no such direction could have been issued by the Division Bench of the High Court to absorb them in Government service and to regularise their services. The High Court has observed that even while absorbing and/or regularising the services of the respondents, the State Government may create supernumerary posts. Such a direction to create supernumerary posts is unsustainable. Such a direction is wholly without jurisdiction. No such direction can be issued by the High Court for absorption/regularisation of the employees who were appointed in a temporary unit which was created for a particular project and that too, by creating supernumerary posts. 7. From the impugned judgment and order passed by the Division Bench of the High Court, it appears that what has weighed with the High Court was that the respondents were continued in service for a long time, i.e., seventeen years. However, the High Court has not considered that out of seventeen years, the respondents continued in service for ten years pursuant to the interim order passed by the High Court. Therefore, even considering the decision of this Court in the case of Umadevi (supra), the period for which the employees have continued in service pursuant to the interim order is to be excluded and not to be counted. The High Court has totally missed the aforesaid aspect. 8. Now, so far as the reliance placed upon the decision of this Court in the case of Umadevi (supra) and the subsequent decision of this Court in the case of Narendra Kumar Tiwari (supra), relied upon by the learned counsel appearing on behalf of the respondents is concerned, none of the aforesaid decisions shall be applicable to the facts of the case on hand. The purpose and intent of the decision in Umadevi (supra) was, (1) to prevent irregular or illegal appointments in the future, and (2) to confer a benefit on those who had been irregularly appointed in the past and who have continued for a very long time. The decision of Umadevi (supra) may be applicable in a case where the appointments are irregular on the sanctioned posts in regular establishment. The same does not apply to temporary appointments made in a project/programme. 8.1 Even in the case of Narendra Kumar Tiwari (supra) also, it was a case of irregularly appointed employees. Even otherwise, in view the facts and circumstances of Narendra Kumar Tiwari (supra), the said decision shall not be applicable to the facts of the case on hand. The case before this Court was with respect to the employees working with the State of Jharkhand which was created only on 15.11.2000 and therefore it was contended on behalf of the irregularly appointed employees that no one could have completed ten years of service with the State of Jharkhand on the cut-off date of 10.04.2006, which was the cut-off date fixed under the relevant rules of the State of Jharkhand. 9. Even otherwise, it is to be noted that though not required, the State, instead of putting an end to the services of the respondents, graciously placed the respondents in the Indian Red Cross Society. No duty was cast upon the State to transfer them to another establishment in a case where it is found that the employees are appointed in a temporary unit and on a temporary contractual basis and on a fixed term salary and on closure of the temporary unit, their services are not required. However, the State Government was gracious enough to place the respondents in the Indian Red Cross Society, which the respondents did not accept. 10. From the impugned order passed by the Division Bench of the High Court it appears that the High Court has observed hereinabove that in the peculiar facts and circumstances of the case, it is directed that the order of absorption and regularisation and if necessary, by creating supernumerary posts, will not be treated as a precedent in other cases. Even such a direction could not have been passed by the Division Bench of the High Court as there were no peculiar facts and circumstances which warranted the above observation. No such order of absorption and/or regularisation even if required for creating supernumerary posts and not to treat the same as precedent could have been passed by the High Court in exercise of powers under Article 226 of the Constitution of India.
### Response:
0
### Explanation:
The High Court has observed that even while absorbing and/or regularising the services of the respondents, the State Government may create supernumerary posts. Such a direction to create supernumerary posts is unsustainable. Such a direction is wholly without jurisdiction. No such direction can be issued by the High Court for absorption/regularisation of the employees who were appointed in a temporary unit which was created for a particular project and that too, by creating supernumerary posts.7. From the impugned judgment and order passed by the Division Bench of the High Court, it appears that what has weighed with the High Court was that the respondents were continued in service for a long time, i.e., seventeen years. However, the High Court has not considered that out of seventeen years, the respondents continued in service for ten years pursuant to the interim order passed by the High Court. Therefore, even considering the decision of this Court in the case of Umadevi (supra), the period for which the employees have continued in service pursuant to the interim order is to be excluded and not to be counted. The High Court has totally missed the aforesaid aspect.8. Now, so far as the reliance placed upon the decision of this Court in the case of Umadevi (supra) and the subsequent decision of this Court in the case of Narendra Kumar Tiwari (supra), relied upon by the learned counsel appearing on behalf of the respondents is concerned, none of the aforesaid decisions shall be applicable to the facts of the case on hand. The purpose and intent of the decision in Umadevi (supra) was, (1) to prevent irregular or illegal appointments in the future, and (2) to confer a benefit on those who had been irregularly appointed in the past and who have continued for a very long time. The decision of Umadevi (supra) may be applicable in a case where the appointments are irregular on the sanctioned posts in regular establishment. The same does not apply to temporary appointments made in a project/programme.8.1 Even in the case of Narendra Kumar Tiwari (supra) also, it was a case of irregularly appointed employees. Even otherwise, in view the facts and circumstances of Narendra Kumar Tiwari (supra), the said decision shall not be applicable to the facts of the case on hand. The case before this Court was with respect to the employees working with the State of Jharkhand which was created only on 15.11.2000 and therefore it was contended on behalf of the irregularly appointed employees that no one could have completed ten years of service with the State of Jharkhand on the cut-off date of 10.04.2006, which was the cut-off date fixed under the relevant rules of the State of Jharkhand.9. Even otherwise, it is to be noted that though not required, the State, instead of putting an end to the services of the respondents, graciously placed the respondents in the Indian Red Cross Society. No duty was cast upon the State to transfer them to another establishment in a case where it is found that the employees are appointed in a temporary unit and on a temporary contractual basis and on a fixed term salary and on closure of the temporary unit, their services are not required. However, the State Government was gracious enough to place the respondents in the Indian Red Cross Society, which the respondents did not accept.10. From the impugned order passed by the Division Bench of the High Court it appears that the High Court has observed hereinabove that in the peculiar facts and circumstances of the case, it is directed that the order of absorption and regularisation and if necessary, by creating supernumerary posts, will not be treated as a precedent in other cases. Even such a direction could not have been passed by the Division Bench of the High Court as there were no peculiar facts and circumstances which warranted the above observation. No such order of absorption and/or regularisation even if required for creating supernumerary posts and not to treat the same as precedent could have been passed by the High Court in exercise of powers under Article 226 of the Constitution of India.
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Bhartiben Ravibhai Rav Vs. Ravibhai Govindbhai Rav | R. Banumathi, J.1. This transfer petition filed under Section 25 of Code of Civil Procedure for transfer of H.M.P. No. 1668 of 2015 titled as `Ravibhai Gobindbhai Rav v. Bhartiben Ravibhai Rav pending before the Family Court Judge, Ahmedabad at Gujarat to the Court of Competent Jurisdiction at Dungarpur, Rajasthan.2. The marriage between the petitioner and the respondent was solemnized on 19.02.2006 and the couple was blessed with two sons namely Meshvasinh and Aeshvasinh who are aged eight years and seven years respectively. The relationship between the couple was strained and it is alleged that in September, 2015 the petitioner-wife was thrown out of her matrimonial house. The respondent-husband filed divorce petition being H.M.P. No.1668 of 2015 before the Family Court, Ahmedabad under Section 13(1) of the Hindu Marriage Act, 1955 of which the petitioner-wife seeks transfer.3. The transfer petition is strongly objected to by the respondent-husband on the ground that he is employed in Ahmedabad and that he is taking care of his two sons, apart from his aged parents. The petitioner-wife, on the other hand, contends that the distance between Ahmedabad and her place Dungarpur, Rajasthan is about 200 kms. and that she finds it difficult to travel to Ahmedabad to contest the divorce petition. That apart, the petitioner-wife has also raised difficulty in pursuing the Divorce Petition in Ahmedabad because of the language problem, as she is not well-acquainted in Gujarati.4. Apart from divorce petition, there are other proceedings pending between the parties which have been filed by the petitioner-wife at Dungarpur, Rajasthan viz; (i) FIR under Section 498-A and 406 IPC and under Section 4 of The Dowry Prohibition Act; (ii) Petition under Section 125 Cr.P.C. before the Family Court, Dungarpur, Rajasthan and (iii) petition under Sections 12 and 23 of Protection of Women from Domestic Violence Act, 2005 pending before the Chief Judicial Magistrate, Dungarpur, Rajasthan. It is stated that respondent-husband is already appearing in Dungarpur Court, Rajasthan in connection with the aforesaid cases instituted by the petitioner-wife and that it may not be difficult for respondent-husband to pursue the divorce petition in Dungarpur Court, Rajasthan. | 1[ds]4. Apart from divorce petition, there are other proceedings pending between the parties which have been filed by theat Dungarpur, Rajasthan viz; (i) FIR under Sectionand 406 IPC and under Section 4 of The Dowry Prohibition Act; (ii) Petition under Section 125 Cr.P.C. before the Family Court, Dungarpur, Rajasthan and (iii) petition under Sections 12 and 23 of Protection of Women from Domestic Violence Act, 2005 pending before the Chief Judicial Magistrate, Dungarpur, Rajasthan. It is stated thatis already appearing in Dungarpur Court, Rajasthan in connection with the aforesaid cases instituted by theand that it may not be difficult forto pursue the divorce petition in Dungarpur Court, Rajasthan. | 1 | 399 | 133 | ### 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:
R. Banumathi, J.1. This transfer petition filed under Section 25 of Code of Civil Procedure for transfer of H.M.P. No. 1668 of 2015 titled as `Ravibhai Gobindbhai Rav v. Bhartiben Ravibhai Rav pending before the Family Court Judge, Ahmedabad at Gujarat to the Court of Competent Jurisdiction at Dungarpur, Rajasthan.2. The marriage between the petitioner and the respondent was solemnized on 19.02.2006 and the couple was blessed with two sons namely Meshvasinh and Aeshvasinh who are aged eight years and seven years respectively. The relationship between the couple was strained and it is alleged that in September, 2015 the petitioner-wife was thrown out of her matrimonial house. The respondent-husband filed divorce petition being H.M.P. No.1668 of 2015 before the Family Court, Ahmedabad under Section 13(1) of the Hindu Marriage Act, 1955 of which the petitioner-wife seeks transfer.3. The transfer petition is strongly objected to by the respondent-husband on the ground that he is employed in Ahmedabad and that he is taking care of his two sons, apart from his aged parents. The petitioner-wife, on the other hand, contends that the distance between Ahmedabad and her place Dungarpur, Rajasthan is about 200 kms. and that she finds it difficult to travel to Ahmedabad to contest the divorce petition. That apart, the petitioner-wife has also raised difficulty in pursuing the Divorce Petition in Ahmedabad because of the language problem, as she is not well-acquainted in Gujarati.4. Apart from divorce petition, there are other proceedings pending between the parties which have been filed by the petitioner-wife at Dungarpur, Rajasthan viz; (i) FIR under Section 498-A and 406 IPC and under Section 4 of The Dowry Prohibition Act; (ii) Petition under Section 125 Cr.P.C. before the Family Court, Dungarpur, Rajasthan and (iii) petition under Sections 12 and 23 of Protection of Women from Domestic Violence Act, 2005 pending before the Chief Judicial Magistrate, Dungarpur, Rajasthan. It is stated that respondent-husband is already appearing in Dungarpur Court, Rajasthan in connection with the aforesaid cases instituted by the petitioner-wife and that it may not be difficult for respondent-husband to pursue the divorce petition in Dungarpur Court, Rajasthan.
### Response:
1
### Explanation:
4. Apart from divorce petition, there are other proceedings pending between the parties which have been filed by theat Dungarpur, Rajasthan viz; (i) FIR under Sectionand 406 IPC and under Section 4 of The Dowry Prohibition Act; (ii) Petition under Section 125 Cr.P.C. before the Family Court, Dungarpur, Rajasthan and (iii) petition under Sections 12 and 23 of Protection of Women from Domestic Violence Act, 2005 pending before the Chief Judicial Magistrate, Dungarpur, Rajasthan. It is stated thatis already appearing in Dungarpur Court, Rajasthan in connection with the aforesaid cases instituted by theand that it may not be difficult forto pursue the divorce petition in Dungarpur Court, Rajasthan.
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Perumal Nadar (Dead) By L.R.S Vs. Ponnuswami | with Annapazham in the presence of a large number of persons clearly indicates that he accepted that Annapazham was converted to Hinduism before the marriage ceremony was performed.10. The second contention has little substance. The Madras Hindu (Bigamy Prevention and Divorce) Act 6 of 1949 provided by Sections 3 and 4(1) :"Section 3. - This Act applies to Hindus domiciled in the State of Madras.Explanation. - This Act shall also apply if either of the parties to the marriage was a Hindu domiciled in the State of Madras.""Section 4(1). - Notwithstanding any rule of law, custom or usage to the contrary, any marriage solemnized after the commencement of this Act between a man and a woman either of whom has a spouse living at the time of such solemnization shall be void, whether the marriage is solemnized within or outside the State of Madras :Provided X X X."11. Mr. Gupte contended that Perumal was domiciled in the village of Kannamkulam, Taluka Nanguneri, District Tirunelveli in the State of Madras and on that account governed by Madras Act 6 of 1949, and since Perumal had been previously married to Seethalakshmi who was alive, his marriage with Annapazham was invalid. The Courts below have held that Perumal had married Seethalakshmi before he married Annapazham, and that Seethalakshmi was alive at the date of Perumals marriage with Annapazham. But no contention was raised in the written statement filed by Perumal that he was domiciled in the State of Madras. The marriage with Annapazham took place in Kannimadam which is admittedly within the territory of the State of Travancore-Cochin and after the marriage Perumal and Annapazham lived at Kannimadam. M. Thangiah Nadar P.W. 2, and Kailasa Nadar P.W. 4 have deposed that the families of Annapazham and Perumal were the subjects of the Travancore Maharaja and that evidence was not challenged. Perumal and Annapazham were married according to the ceremonies which made a valid marriage : they had lived as husband and wife and if it was the case of Perumal that the marriage was, by reason of the prohibition contained in Madras Act 6 of 1949, invalid, it was for him to set up and to establish that plea by evidence. It is true that an attempt was made after plaintiff closed here case to suggest to witnesses examined that he Perumal was a resident of Kannamkulam and that he occasionally visited Kannimadam where he had a house. But no argument was raised that Perumal was domiciled in the State of Madras. In the absence of any such contention, the Trial Court held that Perumal was not domiciled in the State of Madras. It cannot be held in the absence of a specific plea and issue raised to that end that Perumal was domiciled in the State of Madras and was on that account governed by the provisions of the Madras Hindu (Bigamy Prevention and Divorce) Act 6 of 1949. We agree with the High Court that it is not proved that Perumal was domiciled in the State of Madras at the date of his marriage with Annapazham.12. Nor can we accept the contention that the plaintiff Ponnuswami is an illegitimate child. If it be accepted that there was a valid marriage between Perumal and Annapazham and during the subsistence of the marriage the plaintiff was born, a conclusive presumption arises that he was the son of Perumal, unless it be established that at the time when the plaintiff was conceived, Perumal had no access to Annapazham. There is evidence on the record that there were in 1957 some disputes between Annapazham and Perumal. Annapazham had lodged a complaint before the Magistrates court that Perumal had contracted marriage with one Bhagavathi. That complaint was dismissed and the order was confirmed by the High Court of Madras. Because of this complaint, the relations between the parties were strained and they were living apart. But it is still common ground that Perumal and Annapazham were living in the same village, and unless Perumal was able to establish absence of access, the presumption raised by Section 112 of the Indian Evidence Act will not be displaced.13. In Chilukuri Venkateswarlu v. Chilukuri Venkatanarayana ((1954) SCR 425) in a suit filed by a Hindu son against his father for partition it was contended that the plaintiff was not the legitimate child of the defendant. The defendant relied upon certain documents by which he had agreed to pay maintenance to the plaintiffs mother and upon a deed gifting a house to her and assertions made in a previous suit that he had no intercourse with her after he married a second wife. The Court in that case observed, following the judgment of the Privy Council in Karapaya v. Mayandi (ILR 12 Rang 243 (PC)) that "non-access could be established not merely by positive or direct evidence; it can be proved undoubtedly like any other physical fact by evidence, either direct or circumstantial, which is relevant to the issue under the provisions of the Indian Evidence Act, though as the presumption of legitimacy is highly favoured by law it is necessary that proof of non-access must be clear and satisfactory", and since on the basis of that proof there was evidence on the record that the plaintiffs mother lived in the house gifted to her by her husband and there was no impossibility of cohabitation between the parties, there was no acceptable evidence of non-access.14. In Ammathayee v. Kumaresain ((1967) 1 SCR 353 ) this Court held that the conclusive presumption under Section 112 of the Indian Evidence Act can only be displaced if it is sown that the parties to the marriage had no access at any time when the child could have been begotten.15. There is a concurrent finding of the Trial Court and the High Court that there is no evidence to establish that Perumal living in the same village as Annapazham had no access to Annapazham during the time when the plaintiff could have been begotten.16. | 0[ds]9. The evidence clearly establishes that the parents of Annapazham arranged the marriage. The marriage was performed according to Hindu rites and ceremonies in the presence of relatives who were invited to attend : customary ceremonies peculiar to a marriage between Hindus were performed : no objection was raised to the marriage and after the marriage Annapazham was accepted by the local Hindu Nadar community as belonging to the Hindu faith, and the plaintiff was also treated as a Hindu. On the evidence there can be no doubt that Annapazham bona fide intended to contract marriage with Perumal. Absence of specific expiatory or purificatory ceremonies will not, in our judgment, be sufficient to hold that she was not converted to Hinduism before the marriage ceremony was performed. The fact that Perumal chose to go through the marriage ceremony according to Hindu rites with Annapazham in the presence of a large number of persons clearly indicates that he accepted that Annapazham was converted to Hinduism before the marriage ceremony wasagree with the High Court that it is not proved that Perumal was domiciled in the State of Madras at the date of his marriage with Annapazham.12. Nor can we accept the contention that the plaintiff Ponnuswami is an illegitimate child. If it be accepted that there was a valid marriage between Perumal and Annapazham and during the subsistence of the marriage the plaintiff was born, a conclusive presumption arises that he was the son of Perumal, unless it be established that at the time when the plaintiff was conceived, Perumal had no access to Annapazham. There is evidence on the record that there were in 1957 some disputes between Annapazham and Perumal. Annapazham had lodged a complaint before the Magistrates court that Perumal had contracted marriage with one Bhagavathi. That complaint was dismissed and the order was confirmed by the High Court of Madras. Because of this complaint, the relations between the parties were strained and they were living apart. But it is still common ground that Perumal and Annapazham were living in the same village, and unless Perumal was able to establish absence of access, the presumption raised by Section 112 of the Indian Evidence Act will not be displaced.There is a concurrent finding of the Trial Court and the High Court that there is no evidence to establish that Perumal living in the same village as Annapazham had no access to Annapazham during the time when the plaintiff could have been begotten. | 0 | 2,434 | 439 | ### 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:
with Annapazham in the presence of a large number of persons clearly indicates that he accepted that Annapazham was converted to Hinduism before the marriage ceremony was performed.10. The second contention has little substance. The Madras Hindu (Bigamy Prevention and Divorce) Act 6 of 1949 provided by Sections 3 and 4(1) :"Section 3. - This Act applies to Hindus domiciled in the State of Madras.Explanation. - This Act shall also apply if either of the parties to the marriage was a Hindu domiciled in the State of Madras.""Section 4(1). - Notwithstanding any rule of law, custom or usage to the contrary, any marriage solemnized after the commencement of this Act between a man and a woman either of whom has a spouse living at the time of such solemnization shall be void, whether the marriage is solemnized within or outside the State of Madras :Provided X X X."11. Mr. Gupte contended that Perumal was domiciled in the village of Kannamkulam, Taluka Nanguneri, District Tirunelveli in the State of Madras and on that account governed by Madras Act 6 of 1949, and since Perumal had been previously married to Seethalakshmi who was alive, his marriage with Annapazham was invalid. The Courts below have held that Perumal had married Seethalakshmi before he married Annapazham, and that Seethalakshmi was alive at the date of Perumals marriage with Annapazham. But no contention was raised in the written statement filed by Perumal that he was domiciled in the State of Madras. The marriage with Annapazham took place in Kannimadam which is admittedly within the territory of the State of Travancore-Cochin and after the marriage Perumal and Annapazham lived at Kannimadam. M. Thangiah Nadar P.W. 2, and Kailasa Nadar P.W. 4 have deposed that the families of Annapazham and Perumal were the subjects of the Travancore Maharaja and that evidence was not challenged. Perumal and Annapazham were married according to the ceremonies which made a valid marriage : they had lived as husband and wife and if it was the case of Perumal that the marriage was, by reason of the prohibition contained in Madras Act 6 of 1949, invalid, it was for him to set up and to establish that plea by evidence. It is true that an attempt was made after plaintiff closed here case to suggest to witnesses examined that he Perumal was a resident of Kannamkulam and that he occasionally visited Kannimadam where he had a house. But no argument was raised that Perumal was domiciled in the State of Madras. In the absence of any such contention, the Trial Court held that Perumal was not domiciled in the State of Madras. It cannot be held in the absence of a specific plea and issue raised to that end that Perumal was domiciled in the State of Madras and was on that account governed by the provisions of the Madras Hindu (Bigamy Prevention and Divorce) Act 6 of 1949. We agree with the High Court that it is not proved that Perumal was domiciled in the State of Madras at the date of his marriage with Annapazham.12. Nor can we accept the contention that the plaintiff Ponnuswami is an illegitimate child. If it be accepted that there was a valid marriage between Perumal and Annapazham and during the subsistence of the marriage the plaintiff was born, a conclusive presumption arises that he was the son of Perumal, unless it be established that at the time when the plaintiff was conceived, Perumal had no access to Annapazham. There is evidence on the record that there were in 1957 some disputes between Annapazham and Perumal. Annapazham had lodged a complaint before the Magistrates court that Perumal had contracted marriage with one Bhagavathi. That complaint was dismissed and the order was confirmed by the High Court of Madras. Because of this complaint, the relations between the parties were strained and they were living apart. But it is still common ground that Perumal and Annapazham were living in the same village, and unless Perumal was able to establish absence of access, the presumption raised by Section 112 of the Indian Evidence Act will not be displaced.13. In Chilukuri Venkateswarlu v. Chilukuri Venkatanarayana ((1954) SCR 425) in a suit filed by a Hindu son against his father for partition it was contended that the plaintiff was not the legitimate child of the defendant. The defendant relied upon certain documents by which he had agreed to pay maintenance to the plaintiffs mother and upon a deed gifting a house to her and assertions made in a previous suit that he had no intercourse with her after he married a second wife. The Court in that case observed, following the judgment of the Privy Council in Karapaya v. Mayandi (ILR 12 Rang 243 (PC)) that "non-access could be established not merely by positive or direct evidence; it can be proved undoubtedly like any other physical fact by evidence, either direct or circumstantial, which is relevant to the issue under the provisions of the Indian Evidence Act, though as the presumption of legitimacy is highly favoured by law it is necessary that proof of non-access must be clear and satisfactory", and since on the basis of that proof there was evidence on the record that the plaintiffs mother lived in the house gifted to her by her husband and there was no impossibility of cohabitation between the parties, there was no acceptable evidence of non-access.14. In Ammathayee v. Kumaresain ((1967) 1 SCR 353 ) this Court held that the conclusive presumption under Section 112 of the Indian Evidence Act can only be displaced if it is sown that the parties to the marriage had no access at any time when the child could have been begotten.15. There is a concurrent finding of the Trial Court and the High Court that there is no evidence to establish that Perumal living in the same village as Annapazham had no access to Annapazham during the time when the plaintiff could have been begotten.16.
### Response:
0
### Explanation:
9. The evidence clearly establishes that the parents of Annapazham arranged the marriage. The marriage was performed according to Hindu rites and ceremonies in the presence of relatives who were invited to attend : customary ceremonies peculiar to a marriage between Hindus were performed : no objection was raised to the marriage and after the marriage Annapazham was accepted by the local Hindu Nadar community as belonging to the Hindu faith, and the plaintiff was also treated as a Hindu. On the evidence there can be no doubt that Annapazham bona fide intended to contract marriage with Perumal. Absence of specific expiatory or purificatory ceremonies will not, in our judgment, be sufficient to hold that she was not converted to Hinduism before the marriage ceremony was performed. The fact that Perumal chose to go through the marriage ceremony according to Hindu rites with Annapazham in the presence of a large number of persons clearly indicates that he accepted that Annapazham was converted to Hinduism before the marriage ceremony wasagree with the High Court that it is not proved that Perumal was domiciled in the State of Madras at the date of his marriage with Annapazham.12. Nor can we accept the contention that the plaintiff Ponnuswami is an illegitimate child. If it be accepted that there was a valid marriage between Perumal and Annapazham and during the subsistence of the marriage the plaintiff was born, a conclusive presumption arises that he was the son of Perumal, unless it be established that at the time when the plaintiff was conceived, Perumal had no access to Annapazham. There is evidence on the record that there were in 1957 some disputes between Annapazham and Perumal. Annapazham had lodged a complaint before the Magistrates court that Perumal had contracted marriage with one Bhagavathi. That complaint was dismissed and the order was confirmed by the High Court of Madras. Because of this complaint, the relations between the parties were strained and they were living apart. But it is still common ground that Perumal and Annapazham were living in the same village, and unless Perumal was able to establish absence of access, the presumption raised by Section 112 of the Indian Evidence Act will not be displaced.There is a concurrent finding of the Trial Court and the High Court that there is no evidence to establish that Perumal living in the same village as Annapazham had no access to Annapazham during the time when the plaintiff could have been begotten.
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Bombay Gas Company Limited Vs. Jagannath Pandurang and Others | rejected; so also in the case of coke supply coolies and motor drivers. The workmen concerned here being all workmen of the mains department, the question of their being paid overtime wages under the provisions of the award does not arise. 11. The question, however, remains whether they are entitled to be paid overtime wages under the provisions of S.18(3) of the Bombay Shops and Establishments Act. That Act was in force when the award under consideration was given. It is not correct to say that the workers are entitled to overtime payment by virtue of an amendment made to the Act in 1970. The 1970 amendment had nothing to do with the right of payment of overtime wages. The contention on behalf of the company is that the right to overtime wages based on any ground whatsoever should be deemed to have been dealt with and rejected by the Tribunal which gave the award in 1950. Though the demand for overtime wages was in general terms it could have been or it ought to have been supported either as one of the items of industrial dispute or as flowing from out of the provisions of the Factories Act or flowing from the provisions of the Factories Act of flowing from the provisions of the Bombay Shops and Establishments Act. It was the duty of the party making the demand, who tried to justify the demand, to support it on any one of the alternative basis. They could not have been of ignorant of the provisions of the Bombay Shops and Establishments Act. (Incidentally, though in this case it seems to have been conceded on behalf of the company that the workers are governed by the Bombay Shops and Establishments Act, it is contended on behalf of the company that the concession should be deemed to have been made only for the purpose of this case and not for all purposes). It is further contended that the demand for overtime wages under the provisions of the Bombay Shops and Establishments Act should be deemed to be barred on principle analogous to those of the res judicata. Reliance is placed upon the decision of this Court in Bombay Gas Co. v. Shridhar Bhau A.I.R. 1961 S.C. 1196. But in that case the question whether the workmen should get overtime wages in the same way as the workmen governed by the resulted in the award of 1953 and before the Tribunal it was conceded by the workmen that they were not governed by the Factories Act and the claim for the same overtime wages as those payable to workers under the Factories Act was based on the ground that there was no reason for any distinction between the two sets of workmen. It was, therefore, held that so long as the award remains in force it must be held that these workmen are not governed by the Factories Act and are not entitled to the benefits thereof. In the present case also the question under the Factories Act had been considered but not the question whether they are entitled to overtime wages under the provisions of the Bombay Shops and Establishments Act. We consider that the workmen could and ought to have raised the question that even if they were not entitled to claim overtime wages at the same rate as payable to workers governed by the Factories Act, they should at least be paid the same rate rate as those payable to persons governed by the Bombay Shops and Establishments Act. The workers neither put forward the contention that they were entitled to the benefit of the Bombay Shops and Establishments Act nor even that on considerations similar to those applicable to the persons governed by the Bombay Shops and Establishments Act. They should also be paid overtime wages under the provisions of that Act. Incidentally it shows that the question as to whether the Bombay Shops and Establishment Act is applicable to these workmen has been raised for the first time in these proceedings. The doctrine of res judicata is a wholesome one which is applicable not merely to matters governed by the provisions of the Code of Civil Procedure but to all litigations. It proceeds on the principle that there should be no unnecessary litigation and whatever claims and defences are open to parties should all be put forward at the same time provided no confusion is likely to arise by so putting forward all such claims. It was observed by this Court in Devilal Modi v. Sales Tax Officer, (1965 (1) S.C.R. 686) :The general principle underlying the doctrine of res judicata is ultimately based on considerations of public policy. One important consideration of public policy is that the decisions pronounced by Courts of competent jurisdiction should be final, unless they are modified or reversed by appellate authorities; and the other principle is that no one should be made to face the same kind of litigation twice over, because such a process would be contrary to considerations of fair play and justice, wide : Daryao and others v. The State of U.P. and others (1962) 1 S.C.R. 574). We are, therefore, of opinion that the question of overtime wages should be deemed to have been dealt with and disposed of by the Tribunal on whatever the basis of the claim for overtime wages may be. 12. The disputes between this company and its workers quite often come to this Court. The case in Bombay Gas Co. v. Shridhar Bhau (supra) is one such. The other cases are found in Bombay Gas Co. Ltd. v. Gopal Bhiva, (1964) 3 S.C.R. 709 and Ramlanshan Jageshwar v. Bombay Gas Co. [1961-I L.L.J. 38]. If the workers are dissatisfied with any of the items in respect of which their claim has been rejected it is open to them to raise a fresh industrial dispute. The award has stood the test of time for twenty-five years, a very fare occurrence indeed these days. | 1[ds]It would not be correct, therefore, to hold that they would be entitled to be paid separately for the weekly day off. It must be presumed that their scales of pay were the same as for the workmen who were working before 1948 also. There was no averment to the contrary. They cannot therefore, be allowed an extra benefit which would not be available to the same category of workmen who were working under the employer since before 19489. The High Court seems to have been of the impression that these workmen were entitled to be paid for the days off either under the award or under S.18(3) of the Bombay shops & Establishments Act. It seems to have assumed that there was a scale of wages for weekly off days under the award. That this is an obvious mistakeWe cannot, therefore, agree with the respondents that the sentences at the end of paragraph 126 to the following effect :I, however, recommend that where overtime work is given to workers not covered by the Factories Act, the rate should at least be the single basic wage plus dearness allowance. I do not, however, desire to give any general directions without knowing the nature of the workWould cover these cases. Demand No. 12 is in respect of all workers of the company. The specific case of workers in the mains department has been dealt with and rejected; so also in the case of coke supply coolies and motor drivers. The workmen concerned here being all workmen of the mains department, the question of their being paid overtime wages under the provisions of the award does not ariseIn the present case also the question under the Factories Act had been considered but not the question whether they are entitled to overtime wages under the provisions of the Bombay Shops and Establishments Act. We consider that the workmen could and ought to have raised the question that even if they were not entitled to claim overtime wages at the same rate as payable to workers governed by the Factories Act, they should at least be paid the same rate rate as those payable to persons governed by the Bombay Shops and Establishments Act. The workers neither put forward the contention that they were entitled to the benefit of the Bombay Shops and Establishments Act nor even that on considerations similar to those applicable to the persons governed by the Bombay Shops and Establishments Act. They should also be paid overtime wages under the provisions of that Act. Incidentally it shows that the question as to whether the Bombay Shops and Establishment Act is applicable to these workmen has been raised for the first time in these proceedings. The doctrine of res judicata is a wholesome one which is applicable not merely to matters governed by the provisions of theCode of Civil Procedure but to all litigations. It proceeds on the principle that there should be no unnecessary litigation and whatever claims and defences are open to parties should all be put forward at the same time provided no confusion is likely to arise by so putting forward all such claimsWe are, therefore, of opinion that the question of overtime wages should be deemed to have been dealt with and disposed of by the Tribunal on whatever the basis of the claim for overtime wages may be12. The disputes between this company and its workers quite often come to this Court. The case in Bombay Gas Co. v. Shridhar Bhau (supra) is one such. The other cases are found in Bombay Gas Co. Ltd. v. Gopal Bhiva, (1964) 3 S.C.R. 709 and Ramlanshan Jageshwar v. Bombay Gas Co. [1961-I L.L.J. 38]. If the workers are dissatisfied with any of the items in respect of which their claim has been rejected it is open to them to raise a fresh industrial dispute. The award has stood the test of time for twenty-five years, a very fare occurrence indeed these days. | 1 | 3,563 | 723 | ### 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:
rejected; so also in the case of coke supply coolies and motor drivers. The workmen concerned here being all workmen of the mains department, the question of their being paid overtime wages under the provisions of the award does not arise. 11. The question, however, remains whether they are entitled to be paid overtime wages under the provisions of S.18(3) of the Bombay Shops and Establishments Act. That Act was in force when the award under consideration was given. It is not correct to say that the workers are entitled to overtime payment by virtue of an amendment made to the Act in 1970. The 1970 amendment had nothing to do with the right of payment of overtime wages. The contention on behalf of the company is that the right to overtime wages based on any ground whatsoever should be deemed to have been dealt with and rejected by the Tribunal which gave the award in 1950. Though the demand for overtime wages was in general terms it could have been or it ought to have been supported either as one of the items of industrial dispute or as flowing from out of the provisions of the Factories Act or flowing from the provisions of the Factories Act of flowing from the provisions of the Bombay Shops and Establishments Act. It was the duty of the party making the demand, who tried to justify the demand, to support it on any one of the alternative basis. They could not have been of ignorant of the provisions of the Bombay Shops and Establishments Act. (Incidentally, though in this case it seems to have been conceded on behalf of the company that the workers are governed by the Bombay Shops and Establishments Act, it is contended on behalf of the company that the concession should be deemed to have been made only for the purpose of this case and not for all purposes). It is further contended that the demand for overtime wages under the provisions of the Bombay Shops and Establishments Act should be deemed to be barred on principle analogous to those of the res judicata. Reliance is placed upon the decision of this Court in Bombay Gas Co. v. Shridhar Bhau A.I.R. 1961 S.C. 1196. But in that case the question whether the workmen should get overtime wages in the same way as the workmen governed by the resulted in the award of 1953 and before the Tribunal it was conceded by the workmen that they were not governed by the Factories Act and the claim for the same overtime wages as those payable to workers under the Factories Act was based on the ground that there was no reason for any distinction between the two sets of workmen. It was, therefore, held that so long as the award remains in force it must be held that these workmen are not governed by the Factories Act and are not entitled to the benefits thereof. In the present case also the question under the Factories Act had been considered but not the question whether they are entitled to overtime wages under the provisions of the Bombay Shops and Establishments Act. We consider that the workmen could and ought to have raised the question that even if they were not entitled to claim overtime wages at the same rate as payable to workers governed by the Factories Act, they should at least be paid the same rate rate as those payable to persons governed by the Bombay Shops and Establishments Act. The workers neither put forward the contention that they were entitled to the benefit of the Bombay Shops and Establishments Act nor even that on considerations similar to those applicable to the persons governed by the Bombay Shops and Establishments Act. They should also be paid overtime wages under the provisions of that Act. Incidentally it shows that the question as to whether the Bombay Shops and Establishment Act is applicable to these workmen has been raised for the first time in these proceedings. The doctrine of res judicata is a wholesome one which is applicable not merely to matters governed by the provisions of the Code of Civil Procedure but to all litigations. It proceeds on the principle that there should be no unnecessary litigation and whatever claims and defences are open to parties should all be put forward at the same time provided no confusion is likely to arise by so putting forward all such claims. It was observed by this Court in Devilal Modi v. Sales Tax Officer, (1965 (1) S.C.R. 686) :The general principle underlying the doctrine of res judicata is ultimately based on considerations of public policy. One important consideration of public policy is that the decisions pronounced by Courts of competent jurisdiction should be final, unless they are modified or reversed by appellate authorities; and the other principle is that no one should be made to face the same kind of litigation twice over, because such a process would be contrary to considerations of fair play and justice, wide : Daryao and others v. The State of U.P. and others (1962) 1 S.C.R. 574). We are, therefore, of opinion that the question of overtime wages should be deemed to have been dealt with and disposed of by the Tribunal on whatever the basis of the claim for overtime wages may be. 12. The disputes between this company and its workers quite often come to this Court. The case in Bombay Gas Co. v. Shridhar Bhau (supra) is one such. The other cases are found in Bombay Gas Co. Ltd. v. Gopal Bhiva, (1964) 3 S.C.R. 709 and Ramlanshan Jageshwar v. Bombay Gas Co. [1961-I L.L.J. 38]. If the workers are dissatisfied with any of the items in respect of which their claim has been rejected it is open to them to raise a fresh industrial dispute. The award has stood the test of time for twenty-five years, a very fare occurrence indeed these days.
### Response:
1
### Explanation:
It would not be correct, therefore, to hold that they would be entitled to be paid separately for the weekly day off. It must be presumed that their scales of pay were the same as for the workmen who were working before 1948 also. There was no averment to the contrary. They cannot therefore, be allowed an extra benefit which would not be available to the same category of workmen who were working under the employer since before 19489. The High Court seems to have been of the impression that these workmen were entitled to be paid for the days off either under the award or under S.18(3) of the Bombay shops & Establishments Act. It seems to have assumed that there was a scale of wages for weekly off days under the award. That this is an obvious mistakeWe cannot, therefore, agree with the respondents that the sentences at the end of paragraph 126 to the following effect :I, however, recommend that where overtime work is given to workers not covered by the Factories Act, the rate should at least be the single basic wage plus dearness allowance. I do not, however, desire to give any general directions without knowing the nature of the workWould cover these cases. Demand No. 12 is in respect of all workers of the company. The specific case of workers in the mains department has been dealt with and rejected; so also in the case of coke supply coolies and motor drivers. The workmen concerned here being all workmen of the mains department, the question of their being paid overtime wages under the provisions of the award does not ariseIn the present case also the question under the Factories Act had been considered but not the question whether they are entitled to overtime wages under the provisions of the Bombay Shops and Establishments Act. We consider that the workmen could and ought to have raised the question that even if they were not entitled to claim overtime wages at the same rate as payable to workers governed by the Factories Act, they should at least be paid the same rate rate as those payable to persons governed by the Bombay Shops and Establishments Act. The workers neither put forward the contention that they were entitled to the benefit of the Bombay Shops and Establishments Act nor even that on considerations similar to those applicable to the persons governed by the Bombay Shops and Establishments Act. They should also be paid overtime wages under the provisions of that Act. Incidentally it shows that the question as to whether the Bombay Shops and Establishment Act is applicable to these workmen has been raised for the first time in these proceedings. The doctrine of res judicata is a wholesome one which is applicable not merely to matters governed by the provisions of theCode of Civil Procedure but to all litigations. It proceeds on the principle that there should be no unnecessary litigation and whatever claims and defences are open to parties should all be put forward at the same time provided no confusion is likely to arise by so putting forward all such claimsWe are, therefore, of opinion that the question of overtime wages should be deemed to have been dealt with and disposed of by the Tribunal on whatever the basis of the claim for overtime wages may be12. The disputes between this company and its workers quite often come to this Court. The case in Bombay Gas Co. v. Shridhar Bhau (supra) is one such. The other cases are found in Bombay Gas Co. Ltd. v. Gopal Bhiva, (1964) 3 S.C.R. 709 and Ramlanshan Jageshwar v. Bombay Gas Co. [1961-I L.L.J. 38]. If the workers are dissatisfied with any of the items in respect of which their claim has been rejected it is open to them to raise a fresh industrial dispute. The award has stood the test of time for twenty-five years, a very fare occurrence indeed these days.
|
The Kerala State Coastal Zone Management Authority Vs. The State of Kerala Maradu Municipality and Ors | into misadventure of raising a construction without securing permission from the competent authorities. That apart, the learned Counsel for the Respondent, has rightly pointed out that the direction of the High Court in the matter of demarcation and determination of HTL is based on the amendment dated 18.8.1994 introduced in the notification dated 19.2.1991 entitled the Coastal Regulation Zone notification issued in exercise of the power conferred by Section 3(1) and Section 3(2)(v) of the Environment Protection Act, 1986, while the Appellants construction was completed before the date of the amendment and, therefore, the Appellant cannot take benefit of the order dated 25.9.96 passed in writ petition No. 102 of 1996.5. It is pertinent to note that during the pendency of the writ petition, the Appellant had moved two applications, one of which is dated 11.7.1995, for the purpose of regularisation of the construction in question. Goa State Coastal Committee for Environment-the then competent body constituted a sub-committee which inspected the site and found that the entire construction raised by the Appellant fell within 200 meters of the HTL and the construction had been carried out on existing sand dunes. The Goa State Coastal Committee for Environment, in its meeting dated 20.10.1995, took a decision inter alia holding that the entire construction put up by the Appellant was in violation of the Coastal Regulation Zone Notification.6. The Coastal Regulation Zone notifications have been issued in the interest of protecting the environment and ecology in the coastal area. Construction raised in violation of such Regulations cannot be lightly condoned. We do not think that the Appellant is entitled to any relief. No fault can be found with the view taken by the High Court in its impugned judgment."17. Further, reference has also been made to a decision of the Kerala High Court in Ratheesh v. State of Kerala [2013 (3) KLT 840 ]. The same is extracted below:"98. However, we would rather rest our decision without pronouncing on the validity of the permits as such. We have found that the Notification is applicable to the island, the island falls in CRZ-I and construction is impermissible. By merely getting a permit under the Building Rules, it cannot be in the region of any doubt that the company cannot arrogate to itself, the right to flout the terms of the Notification. We have already noticed Rule 23(4) of the Kerala Municipality Building Rules, 1999 and Rule 26(4) of the Kerala Panchayat Building Rules, 2011. In this case, we may also note that there is no permission sought from the authority. It is apposite to note that paragraph 3 (v) clearly mandates that for investment of Rs. 5 crores and above, permission must be obtained from the Ministry of Environment WP(C). No. 19564/11 & CON. CASES 21 and Forest. In this case, the investment of the company is far above Rs. 5 crores. In respect of investments below Rs. 5 crores, for activities which are not prohibited, permission must be obtained from the concerned authority in the State. The company has not made any such attempt at getting permission. That apart, this is a case where, even if permission had been applied for, the terms of the Notification would stand in the way of any such permission being granted in so far as the island is treated as falling in CRZ-I. Construction of buildings as has been done by the company was absolutely impermissible. The fact that in a situation where the construction activity was permissible under the Notification and if the company had obtained permit from the local body, would have made its activities legal, cannot avail the company for the reason that under the terms of the Notification, such permit obtained from the panchayat will be of little avail to it in the light of the nature of the restrictions brought about by the Regulations in respect of CRZ-I in which zone the island falls. According to the WP(C). No. 19564/11 & CON. CASES 22 panchayat, no doubt, the conditions have been imposed also as recommended by the Assistant Engineer who is alleged to have even visited the island. Whatever that be, as observed by us, in the light of the view we have taken, namely that the 1991 Notification applies to the island, it is squarely covered by the same being included in CRZ-I and the constructions were begun even during the currency of the 1991 Notification. The conclusion is inescapable that it is in the teeth of the prohibition contained in the 1991 Notification and, therefore, it is palpably illegal.XXX XXX XXX107. At this stage, we must deal with the argument raised before us by the company. It is submitted that a world-class resort has been put up which will promote tourism in a State like Kerala which does not have any industries as such and where tourism has immense potential and jobs will be created. It is submitted that the Court may bear in mind that the company is eco-friendly and if at all the Court is inclined to find against the company, the Court may, in the facts of this case, give direction to the company and the company will strictly abide by any safeguards essential for the preservation of environment.108. We do not think that this Court should be detained by such an argument. The Notification issued under the Environment (Protection) Act is meant to protect the environment and bring about sustainable development. It is the law of the land. It is meant to be obeyed and enforced. As held by the Apex Court, construction in violation of the Coastal Regulation Zone Regulations are not to be viewed lightly and he who breaches its WP(C). No. 19564/11 & CON. CASES 24 terms does so at his own peril. The fait accompli of constructions being made which are in the teeth of the Notification cannot present, but a highly vulnerable argument."18. We find that the view taken by the Kerala High Court in the aforesaid decision is appropriate. | 1[ds]12. It is apparent that at the relevant time when the construction has been raised by the Respondents in the matters, the area was within CRZ-III. With respect to CRZ-III, the relevant notification dated 19.2.1991 indicates that the area of 200 meters from the High Tide Line is no development zone. No construction shall be permitted within this zone except for repairs of the authorized structures not exceeding existing FSI.It is necessary for the local authority to follow the restrictions imposed by the notification, as amended from time to time. Thus, it was not open to the local authority, i.e., Panchayat, in view of the notification of 1991 to grant any kind of permission without the concurrence of Kerala State Coastal Zone Management Authority. Admittedly, Panchayat has not forwarded any such applications for building permissions and there is no concurrence or permission granted by the Kerala State Coastal Zone Management Authority. As such, we find that once a due inquiry has been held by the Committee, there is no escape from the conclusion that the area fell within CRZ-III, it was wholly impermissible and unauthorised construction within the prohibited area. We also take judicial notice of recent devastation in Kerala which had taken place due to heavy rains compounded by such unbridled construction activities resulting in colossal loss of human life and property due to such unauthorised activity.Further, reference has also been made to a decision of the Kerala High Court in Ratheesh v. State of Kerala [2013 (3) KLT 840 ]. The same is extractedHowever, we would rather rest our decision without pronouncing on the validity of the permits as such. We have found that the Notification is applicable to the island, the island falls in CRZ-I and construction is impermissible. By merely getting a permit under the Building Rules, it cannot be in the region of any doubt that the company cannot arrogate to itself, the right to flout the terms of the Notification. We have already noticed Rule 23(4) of the Kerala Municipality Building Rules, 1999 and Rule 26(4) of the Kerala Panchayat Building Rules, 2011. In this case, we may also note that there is no permission sought from the authority. It is apposite to note that paragraph 3 (v) clearly mandates that for investment of Rs. 5 crores and above, permission must be obtained from the Ministry of Environment WP(C). No. 19564/11 & CON. CASES 21 and Forest. In this case, the investment of the company is far above Rs. 5 crores. In respect of investments below Rs. 5 crores, for activities which are not prohibited, permission must be obtained from the concerned authority in the State. The company has not made any such attempt at getting permission. That apart, this is a case where, even if permission had been applied for, the terms of the Notification would stand in the way of any such permission being granted in so far as the island is treated as falling in CRZ-I. Construction of buildings as has been done by the company was absolutely impermissible. The fact that in a situation where the construction activity was permissible under the Notification and if the company had obtained permit from the local body, would have made its activities legal, cannot avail the company for the reason that under the terms of the Notification, such permit obtained from the panchayat will be of little avail to it in the light of the nature of the restrictions brought about by the Regulations in respect of CRZ-I in which zone the island falls. According to the WP(C). No. 19564/11 & CON. CASES 22 panchayat, no doubt, the conditions have been imposed also as recommended by the Assistant Engineer who is alleged to have even visited the island. Whatever that be, as observed by us, in the light of the view we have taken, namely that the 1991 Notification applies to the island, it is squarely covered by the same being included in CRZ-I and the constructions were begun even during the currency of the 1991 Notification. The conclusion is inescapable that it is in the teeth of the prohibition contained in the 1991 Notification and, therefore, it is palpably7. At this stage, we must deal with the argument raised before us by the company. It is submitted that a world-class resort has been put up which will promote tourism in a State like Kerala which does not have any industries as such and where tourism has immense potential and jobs will be created. It is submitted that the Court may bear in mind that the company is eco-friendly and if at all the Court is inclined to find against the company, the Court may, in the facts of this case, give direction to the company and the company will strictly abide by any safeguards essential for the preservation of environment.We do not think that this Court should be detained by such an argument. The Notification issued under the Environment (Protection) Act is meant to protect the environment and bring about sustainable development. It is the law of the land. It is meant to be obeyed and enforced. As held by the Apex Court, construction in violation of the Coastal Regulation Zone Regulations are not to be viewed lightly and he who breaches its WP(C). No. 19564/11 & CON. CASES 24 terms does so at his own peril. The fait accompli of constructions being made which are in the teeth of the Notification cannot present, but a highly vulnerable argument.We find that the view taken by the Kerala High Court in the aforesaid decision is | 1 | 4,236 | 1,047 | ### 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:
into misadventure of raising a construction without securing permission from the competent authorities. That apart, the learned Counsel for the Respondent, has rightly pointed out that the direction of the High Court in the matter of demarcation and determination of HTL is based on the amendment dated 18.8.1994 introduced in the notification dated 19.2.1991 entitled the Coastal Regulation Zone notification issued in exercise of the power conferred by Section 3(1) and Section 3(2)(v) of the Environment Protection Act, 1986, while the Appellants construction was completed before the date of the amendment and, therefore, the Appellant cannot take benefit of the order dated 25.9.96 passed in writ petition No. 102 of 1996.5. It is pertinent to note that during the pendency of the writ petition, the Appellant had moved two applications, one of which is dated 11.7.1995, for the purpose of regularisation of the construction in question. Goa State Coastal Committee for Environment-the then competent body constituted a sub-committee which inspected the site and found that the entire construction raised by the Appellant fell within 200 meters of the HTL and the construction had been carried out on existing sand dunes. The Goa State Coastal Committee for Environment, in its meeting dated 20.10.1995, took a decision inter alia holding that the entire construction put up by the Appellant was in violation of the Coastal Regulation Zone Notification.6. The Coastal Regulation Zone notifications have been issued in the interest of protecting the environment and ecology in the coastal area. Construction raised in violation of such Regulations cannot be lightly condoned. We do not think that the Appellant is entitled to any relief. No fault can be found with the view taken by the High Court in its impugned judgment."17. Further, reference has also been made to a decision of the Kerala High Court in Ratheesh v. State of Kerala [2013 (3) KLT 840 ]. The same is extracted below:"98. However, we would rather rest our decision without pronouncing on the validity of the permits as such. We have found that the Notification is applicable to the island, the island falls in CRZ-I and construction is impermissible. By merely getting a permit under the Building Rules, it cannot be in the region of any doubt that the company cannot arrogate to itself, the right to flout the terms of the Notification. We have already noticed Rule 23(4) of the Kerala Municipality Building Rules, 1999 and Rule 26(4) of the Kerala Panchayat Building Rules, 2011. In this case, we may also note that there is no permission sought from the authority. It is apposite to note that paragraph 3 (v) clearly mandates that for investment of Rs. 5 crores and above, permission must be obtained from the Ministry of Environment WP(C). No. 19564/11 & CON. CASES 21 and Forest. In this case, the investment of the company is far above Rs. 5 crores. In respect of investments below Rs. 5 crores, for activities which are not prohibited, permission must be obtained from the concerned authority in the State. The company has not made any such attempt at getting permission. That apart, this is a case where, even if permission had been applied for, the terms of the Notification would stand in the way of any such permission being granted in so far as the island is treated as falling in CRZ-I. Construction of buildings as has been done by the company was absolutely impermissible. The fact that in a situation where the construction activity was permissible under the Notification and if the company had obtained permit from the local body, would have made its activities legal, cannot avail the company for the reason that under the terms of the Notification, such permit obtained from the panchayat will be of little avail to it in the light of the nature of the restrictions brought about by the Regulations in respect of CRZ-I in which zone the island falls. According to the WP(C). No. 19564/11 & CON. CASES 22 panchayat, no doubt, the conditions have been imposed also as recommended by the Assistant Engineer who is alleged to have even visited the island. Whatever that be, as observed by us, in the light of the view we have taken, namely that the 1991 Notification applies to the island, it is squarely covered by the same being included in CRZ-I and the constructions were begun even during the currency of the 1991 Notification. The conclusion is inescapable that it is in the teeth of the prohibition contained in the 1991 Notification and, therefore, it is palpably illegal.XXX XXX XXX107. At this stage, we must deal with the argument raised before us by the company. It is submitted that a world-class resort has been put up which will promote tourism in a State like Kerala which does not have any industries as such and where tourism has immense potential and jobs will be created. It is submitted that the Court may bear in mind that the company is eco-friendly and if at all the Court is inclined to find against the company, the Court may, in the facts of this case, give direction to the company and the company will strictly abide by any safeguards essential for the preservation of environment.108. We do not think that this Court should be detained by such an argument. The Notification issued under the Environment (Protection) Act is meant to protect the environment and bring about sustainable development. It is the law of the land. It is meant to be obeyed and enforced. As held by the Apex Court, construction in violation of the Coastal Regulation Zone Regulations are not to be viewed lightly and he who breaches its WP(C). No. 19564/11 & CON. CASES 24 terms does so at his own peril. The fait accompli of constructions being made which are in the teeth of the Notification cannot present, but a highly vulnerable argument."18. We find that the view taken by the Kerala High Court in the aforesaid decision is appropriate.
### Response:
1
### Explanation:
12. It is apparent that at the relevant time when the construction has been raised by the Respondents in the matters, the area was within CRZ-III. With respect to CRZ-III, the relevant notification dated 19.2.1991 indicates that the area of 200 meters from the High Tide Line is no development zone. No construction shall be permitted within this zone except for repairs of the authorized structures not exceeding existing FSI.It is necessary for the local authority to follow the restrictions imposed by the notification, as amended from time to time. Thus, it was not open to the local authority, i.e., Panchayat, in view of the notification of 1991 to grant any kind of permission without the concurrence of Kerala State Coastal Zone Management Authority. Admittedly, Panchayat has not forwarded any such applications for building permissions and there is no concurrence or permission granted by the Kerala State Coastal Zone Management Authority. As such, we find that once a due inquiry has been held by the Committee, there is no escape from the conclusion that the area fell within CRZ-III, it was wholly impermissible and unauthorised construction within the prohibited area. We also take judicial notice of recent devastation in Kerala which had taken place due to heavy rains compounded by such unbridled construction activities resulting in colossal loss of human life and property due to such unauthorised activity.Further, reference has also been made to a decision of the Kerala High Court in Ratheesh v. State of Kerala [2013 (3) KLT 840 ]. The same is extractedHowever, we would rather rest our decision without pronouncing on the validity of the permits as such. We have found that the Notification is applicable to the island, the island falls in CRZ-I and construction is impermissible. By merely getting a permit under the Building Rules, it cannot be in the region of any doubt that the company cannot arrogate to itself, the right to flout the terms of the Notification. We have already noticed Rule 23(4) of the Kerala Municipality Building Rules, 1999 and Rule 26(4) of the Kerala Panchayat Building Rules, 2011. In this case, we may also note that there is no permission sought from the authority. It is apposite to note that paragraph 3 (v) clearly mandates that for investment of Rs. 5 crores and above, permission must be obtained from the Ministry of Environment WP(C). No. 19564/11 & CON. CASES 21 and Forest. In this case, the investment of the company is far above Rs. 5 crores. In respect of investments below Rs. 5 crores, for activities which are not prohibited, permission must be obtained from the concerned authority in the State. The company has not made any such attempt at getting permission. That apart, this is a case where, even if permission had been applied for, the terms of the Notification would stand in the way of any such permission being granted in so far as the island is treated as falling in CRZ-I. Construction of buildings as has been done by the company was absolutely impermissible. The fact that in a situation where the construction activity was permissible under the Notification and if the company had obtained permit from the local body, would have made its activities legal, cannot avail the company for the reason that under the terms of the Notification, such permit obtained from the panchayat will be of little avail to it in the light of the nature of the restrictions brought about by the Regulations in respect of CRZ-I in which zone the island falls. According to the WP(C). No. 19564/11 & CON. CASES 22 panchayat, no doubt, the conditions have been imposed also as recommended by the Assistant Engineer who is alleged to have even visited the island. Whatever that be, as observed by us, in the light of the view we have taken, namely that the 1991 Notification applies to the island, it is squarely covered by the same being included in CRZ-I and the constructions were begun even during the currency of the 1991 Notification. The conclusion is inescapable that it is in the teeth of the prohibition contained in the 1991 Notification and, therefore, it is palpably7. At this stage, we must deal with the argument raised before us by the company. It is submitted that a world-class resort has been put up which will promote tourism in a State like Kerala which does not have any industries as such and where tourism has immense potential and jobs will be created. It is submitted that the Court may bear in mind that the company is eco-friendly and if at all the Court is inclined to find against the company, the Court may, in the facts of this case, give direction to the company and the company will strictly abide by any safeguards essential for the preservation of environment.We do not think that this Court should be detained by such an argument. The Notification issued under the Environment (Protection) Act is meant to protect the environment and bring about sustainable development. It is the law of the land. It is meant to be obeyed and enforced. As held by the Apex Court, construction in violation of the Coastal Regulation Zone Regulations are not to be viewed lightly and he who breaches its WP(C). No. 19564/11 & CON. CASES 24 terms does so at his own peril. The fait accompli of constructions being made which are in the teeth of the Notification cannot present, but a highly vulnerable argument.We find that the view taken by the Kerala High Court in the aforesaid decision is
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Samundra Devi Vs. Narendra Kaur | the liability is fastened upon the insurer, the insurer would be bound to indemnify the insured unless the exceptions contained in Section 149 of the Act are attracted.15. It has not been disputed before us that in certain situations while opining that the insurance company would not be liable to reimburse the insured, a direction upon the insurance company to pay the amount of compensation to a third party and recover the same from the owner of the vehicle is permissible. Such a direction has been issued by the High Court. The said directions are not under challenge. Keeping in view the aforementioned principle in mind, the question which arises for our consideration is as to whether it was permissible for the High Court to interfere with the quantum of compensation as awarded by the learned Tribunal, although no appeal was preferred either by the owner or the driver of the vehicle nor any appeal was preferred by the insurance company.16. Indisputably, in relation to a third party, the grounds upon which the insurer can deny its liability are contained sub-section (2) of Section 149 of the Act. Ordinarily and subject to just exceptions, the insurance company would have no right to question the quantum of compensation in absence of any leave having been granted in its favour in terms of Section 170 of the Act. The High Court, with respect, failed to consider this aspect of the matter. Appellants preferred appeals before it on limited grounds. Their contentions could have been rejected or accepted. The High Court, however, could not have considered the contention raised on behalf of the respondent No.3 which was not available to them in law. It was legally impermissible for the respondent No.3 to question a finding of fact arrived at by the Tribunal, taking umbrage under Order 41 Order Rule 33 of the Code of Civil Procedure or otherwise. It could not have been permitted to do so. It is well settled that what cannot be permitted to be done directly, cannot be permitted to be done indirectly. Indisputably, no leave was obtained in terms of Section 170 of the Act. The quantum of compensation awarded by the learned Tribunal was accepted by the owner. Only in some exceptional cases and that too when the liability to pay the amount of compensation is fastened upon the insurance company and insured, it can be heard on issues relating to the quantum of compensation and not otherwise.17. In this case, the respondent No.3 has been given liberty to recover the amount of compensation from the owner of the vehicle. The insurance company has been held to have no statutory liability as one of its contentions that the driver was not holding a valid and effective driving licence has been upheld.18. In the aforementioned situation, we are of the opinion that even Order 41 Rule 33 of the Code of Civil Procedure was not applicable as in a situation of this nature, the respondent No.3 ordinarily could not have maintained an independent appeal on the quantum of compensation having regard to the fact situation obtaining herein, and, thus, in our opinion, the High Court committed a serious error in issuing the impugned directions, despite noticing that even no appeal has been preferred by the owner or driver of the vehicle as also respondent No.3.19. Order 41 Rule 33 of the Code of Civil Procedure has limited application. When there exists a legal interdict, the same would not apply. It was so held in S. Nazeer Ahmed v. State Bank of Mysore & Ors. [(2007) 11 SCC 75] , stating: "8. We also see considerable force in the submission of learned Counsel for the appellants that the High Court has misconceived the object of Order XLI Rule 33 of the Code and has erred in invoking it for the purpose of granting the plaintiff Bank a decree. This is a case where the suit filed by the plaintiff Bank had been dismissed by the trial court. The plaintiff Bank had come up in appeal. It was entitled to challenge all the findings rendered against it by the trial court and seek a decree as prayed for in the plaint, from the appellate court. Once it is found entitled to a decree on the basis of the reasoning of the appellate court, the suit could be decreed by reversing the appropriate findings of the trial court on which the dismissal of the suit was based. For this, no recourse to Order XLI Rule 33 is necessary. Order XLI Rule 33 enables the appellate court to pass any decree that ought to have been passed by the trial court or grant any further decree as the case may require and the power could be exercised notwithstanding that the appeal was only against a part of the decree and could even be exercised in favour of the respondents, though the respondents might not have filed any appeal or objection against what has been decreed. There is no need to have recourse to Order XLI Rule 33 of the Code, in a case where the suit of the plaintiff has been dismissed and the plaintiff has come up in appeal claiming a decree as prayed for by him in the suit. Then, it will be a question of entertaining the appeal considering the relevant questions and granting the plaintiff the relief he had sought for if he is found entitled to it. In the case on hand therefore there was no occasion for applying Order XLI Rule 33 of the Code. If the view of the High Court was that the suit was barred by Order II Rule 2 of the Code, it is difficult to see how it could have resorted to Order XLI Rule 33 of the Code to grant a decree to the plaintiff in such a suit. In that case, a decree has to be declined. That part of the reasoning of the High Court is therefore unsustainable." | 1[ds]13. The claimants/appellants filed an application for grant of compensation on the premise that they suffered damages owing to the acts of rashness and negligence in driving on the part of the respondent No.2. The owner of the vehicle as also the driver thereof were, thus, principally liable to pay compensation to the dependents of the deceased.14. A contract of insurance as is well known is a contract of indemnity. In a case of accident, the primary liability under law for payment of compensation is that of the driver. The owner of the vehicle also becomes vicariously liable therefor. In a case involving a third-party to the contract of insurance in terms of Section 147 of the Motor Vehicles Act, 1988 providing for a compulsory insurance, the insurer becomes statutorily liable to indemnify the owner. Indisputably, the insurance company would be liable to indemnify the insured in respect of loss suffered by a third party or in respect of damages of property. In a case, therefore, where the liability is fastened upon the insurer, the insurer would be bound to indemnify the insured unless the exceptions contained in Section 149 of the Act are attracted.15. It has not been disputed before us that in certain situations while opining that the insurance company would not be liable to reimburse the insured, a direction upon the insurance company to pay the amount of compensation to a third party and recover the same from the owner of the vehicle is permissible. Such a direction has been issued by the High Court. The said directions are not under challenge. Keeping in view the aforementioned principle in mind, the question which arises for our consideration is as to whether it was permissible for the High Court to interfere with the quantum of compensation as awarded by the learned Tribunal, although no appeal was preferred either by the owner or the driver of the vehicle nor any appeal was preferred by the insurance company.16. Indisputably, in relation to a third party, the grounds upon which the insurer can deny its liability are contained sub-section (2) of Section 149 of the Act. Ordinarily and subject to just exceptions, the insurance company would have no right to question the quantum of compensation in absence of any leave having been granted in its favour in terms of Section 170 of the Act. The High Court, with respect, failed to consider this aspect of the matter. Appellants preferred appeals before it on limited grounds. Their contentions could have been rejected or accepted. The High Court, however, could not have considered the contention raised on behalf of the respondent No.3 which was not available to them in law. It was legally impermissible for the respondent No.3 to question a finding of fact arrived at by the Tribunal, taking umbrage under Order 41 Order Rule 33 of the Code of Civil Procedure or otherwise. It could not have been permitted to do so. It is well settled that what cannot be permitted to be done directly, cannot be permitted to be done indirectly. Indisputably, no leave was obtained in terms of Section 170 of the Act. The quantum of compensation awarded by the learned Tribunal was accepted by the owner. Only in some exceptional cases and that too when the liability to pay the amount of compensation is fastened upon the insurance company and insured, it can be heard on issues relating to the quantum of compensation and not otherwise.17. In this case, the respondent No.3 has been given liberty to recover the amount of compensation from the owner of the vehicle. The insurance company has been held to have no statutory liability as one of its contentions that the driver was not holding a valid and effective driving licence has been upheld.18. In the aforementioned situation, we are of the opinion that even Order 41 Rule 33 of the Code of Civil Procedure was not applicable as in a situation of this nature, the respondent No.3 ordinarily could not have maintained an independent appeal on the quantum of compensation having regard to the fact situation obtaining herein, and, thus, in our opinion, the High Court committed a serious error in issuing the impugned directions, despite noticing that even no appeal has been preferred by the owner or driver of the vehicle as also respondent No.3.19. Order 41 Rule 33 of the Code of Civil Procedure has limited application. When there exists a legal interdict, the same would not apply. It was so held in S. Nazeer Ahmed v. State Bank of Mysore & Ors. [(2007) 11 SCC 75] ,We also see considerable force in the submission of learned Counsel for the appellants that the High Court has misconceived the object of Order XLI Rule 33 of the Code and has erred in invoking it for the purpose of granting the plaintiff Bank a decree. This is a case where the suit filed by the plaintiff Bank had been dismissed by the trial court. The plaintiff Bank had come up in appeal. It was entitled to challenge all the findings rendered against it by the trial court and seek a decree as prayed for in the plaint, from the appellate court. Once it is found entitled to a decree on the basis of the reasoning of the appellate court, the suit could be decreed by reversing the appropriate findings of the trial court on which the dismissal of the suit was based. For this, no recourse to Order XLI Rule 33 is necessary. Order XLI Rule 33 enables the appellate court to pass any decree that ought to have been passed by the trial court or grant any further decree as the case may require and the power could be exercised notwithstanding that the appeal was only against a part of the decree and could even be exercised in favour of the respondents, though the respondents might not have filed any appeal or objection against what has been decreed. There is no need to have recourse to Order XLI Rule 33 of the Code, in a case where the suit of the plaintiff has been dismissed and the plaintiff has come up in appeal claiming a decree as prayed for by him in the suit. Then, it will be a question of entertaining the appeal considering the relevant questions and granting the plaintiff the relief he had sought for if he is found entitled to it. In the case on hand therefore there was no occasion for applying Order XLI Rule 33 of the Code. If the view of the High Court was that the suit was barred by Order II Rule 2 of the Code, it is difficult to see how it could have resorted to Order XLI Rule 33 of the Code to grant a decree to the plaintiff in such a suit. In that case, a decree has to be declined. That part of the reasoning of the High Court is therefore | 1 | 2,628 | 1,259 | ### 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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the liability is fastened upon the insurer, the insurer would be bound to indemnify the insured unless the exceptions contained in Section 149 of the Act are attracted.15. It has not been disputed before us that in certain situations while opining that the insurance company would not be liable to reimburse the insured, a direction upon the insurance company to pay the amount of compensation to a third party and recover the same from the owner of the vehicle is permissible. Such a direction has been issued by the High Court. The said directions are not under challenge. Keeping in view the aforementioned principle in mind, the question which arises for our consideration is as to whether it was permissible for the High Court to interfere with the quantum of compensation as awarded by the learned Tribunal, although no appeal was preferred either by the owner or the driver of the vehicle nor any appeal was preferred by the insurance company.16. Indisputably, in relation to a third party, the grounds upon which the insurer can deny its liability are contained sub-section (2) of Section 149 of the Act. Ordinarily and subject to just exceptions, the insurance company would have no right to question the quantum of compensation in absence of any leave having been granted in its favour in terms of Section 170 of the Act. The High Court, with respect, failed to consider this aspect of the matter. Appellants preferred appeals before it on limited grounds. Their contentions could have been rejected or accepted. The High Court, however, could not have considered the contention raised on behalf of the respondent No.3 which was not available to them in law. It was legally impermissible for the respondent No.3 to question a finding of fact arrived at by the Tribunal, taking umbrage under Order 41 Order Rule 33 of the Code of Civil Procedure or otherwise. It could not have been permitted to do so. It is well settled that what cannot be permitted to be done directly, cannot be permitted to be done indirectly. Indisputably, no leave was obtained in terms of Section 170 of the Act. The quantum of compensation awarded by the learned Tribunal was accepted by the owner. Only in some exceptional cases and that too when the liability to pay the amount of compensation is fastened upon the insurance company and insured, it can be heard on issues relating to the quantum of compensation and not otherwise.17. In this case, the respondent No.3 has been given liberty to recover the amount of compensation from the owner of the vehicle. The insurance company has been held to have no statutory liability as one of its contentions that the driver was not holding a valid and effective driving licence has been upheld.18. In the aforementioned situation, we are of the opinion that even Order 41 Rule 33 of the Code of Civil Procedure was not applicable as in a situation of this nature, the respondent No.3 ordinarily could not have maintained an independent appeal on the quantum of compensation having regard to the fact situation obtaining herein, and, thus, in our opinion, the High Court committed a serious error in issuing the impugned directions, despite noticing that even no appeal has been preferred by the owner or driver of the vehicle as also respondent No.3.19. Order 41 Rule 33 of the Code of Civil Procedure has limited application. When there exists a legal interdict, the same would not apply. It was so held in S. Nazeer Ahmed v. State Bank of Mysore & Ors. [(2007) 11 SCC 75] , stating: "8. We also see considerable force in the submission of learned Counsel for the appellants that the High Court has misconceived the object of Order XLI Rule 33 of the Code and has erred in invoking it for the purpose of granting the plaintiff Bank a decree. This is a case where the suit filed by the plaintiff Bank had been dismissed by the trial court. The plaintiff Bank had come up in appeal. It was entitled to challenge all the findings rendered against it by the trial court and seek a decree as prayed for in the plaint, from the appellate court. Once it is found entitled to a decree on the basis of the reasoning of the appellate court, the suit could be decreed by reversing the appropriate findings of the trial court on which the dismissal of the suit was based. For this, no recourse to Order XLI Rule 33 is necessary. Order XLI Rule 33 enables the appellate court to pass any decree that ought to have been passed by the trial court or grant any further decree as the case may require and the power could be exercised notwithstanding that the appeal was only against a part of the decree and could even be exercised in favour of the respondents, though the respondents might not have filed any appeal or objection against what has been decreed. There is no need to have recourse to Order XLI Rule 33 of the Code, in a case where the suit of the plaintiff has been dismissed and the plaintiff has come up in appeal claiming a decree as prayed for by him in the suit. Then, it will be a question of entertaining the appeal considering the relevant questions and granting the plaintiff the relief he had sought for if he is found entitled to it. In the case on hand therefore there was no occasion for applying Order XLI Rule 33 of the Code. If the view of the High Court was that the suit was barred by Order II Rule 2 of the Code, it is difficult to see how it could have resorted to Order XLI Rule 33 of the Code to grant a decree to the plaintiff in such a suit. In that case, a decree has to be declined. That part of the reasoning of the High Court is therefore unsustainable."
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a case, therefore, where the liability is fastened upon the insurer, the insurer would be bound to indemnify the insured unless the exceptions contained in Section 149 of the Act are attracted.15. It has not been disputed before us that in certain situations while opining that the insurance company would not be liable to reimburse the insured, a direction upon the insurance company to pay the amount of compensation to a third party and recover the same from the owner of the vehicle is permissible. Such a direction has been issued by the High Court. The said directions are not under challenge. Keeping in view the aforementioned principle in mind, the question which arises for our consideration is as to whether it was permissible for the High Court to interfere with the quantum of compensation as awarded by the learned Tribunal, although no appeal was preferred either by the owner or the driver of the vehicle nor any appeal was preferred by the insurance company.16. Indisputably, in relation to a third party, the grounds upon which the insurer can deny its liability are contained sub-section (2) of Section 149 of the Act. Ordinarily and subject to just exceptions, the insurance company would have no right to question the quantum of compensation in absence of any leave having been granted in its favour in terms of Section 170 of the Act. The High Court, with respect, failed to consider this aspect of the matter. Appellants preferred appeals before it on limited grounds. Their contentions could have been rejected or accepted. The High Court, however, could not have considered the contention raised on behalf of the respondent No.3 which was not available to them in law. It was legally impermissible for the respondent No.3 to question a finding of fact arrived at by the Tribunal, taking umbrage under Order 41 Order Rule 33 of the Code of Civil Procedure or otherwise. It could not have been permitted to do so. It is well settled that what cannot be permitted to be done directly, cannot be permitted to be done indirectly. Indisputably, no leave was obtained in terms of Section 170 of the Act. The quantum of compensation awarded by the learned Tribunal was accepted by the owner. Only in some exceptional cases and that too when the liability to pay the amount of compensation is fastened upon the insurance company and insured, it can be heard on issues relating to the quantum of compensation and not otherwise.17. In this case, the respondent No.3 has been given liberty to recover the amount of compensation from the owner of the vehicle. The insurance company has been held to have no statutory liability as one of its contentions that the driver was not holding a valid and effective driving licence has been upheld.18. In the aforementioned situation, we are of the opinion that even Order 41 Rule 33 of the Code of Civil Procedure was not applicable as in a situation of this nature, the respondent No.3 ordinarily could not have maintained an independent appeal on the quantum of compensation having regard to the fact situation obtaining herein, and, thus, in our opinion, the High Court committed a serious error in issuing the impugned directions, despite noticing that even no appeal has been preferred by the owner or driver of the vehicle as also respondent No.3.19. Order 41 Rule 33 of the Code of Civil Procedure has limited application. When there exists a legal interdict, the same would not apply. It was so held in S. Nazeer Ahmed v. State Bank of Mysore & Ors. [(2007) 11 SCC 75] ,We also see considerable force in the submission of learned Counsel for the appellants that the High Court has misconceived the object of Order XLI Rule 33 of the Code and has erred in invoking it for the purpose of granting the plaintiff Bank a decree. This is a case where the suit filed by the plaintiff Bank had been dismissed by the trial court. The plaintiff Bank had come up in appeal. It was entitled to challenge all the findings rendered against it by the trial court and seek a decree as prayed for in the plaint, from the appellate court. Once it is found entitled to a decree on the basis of the reasoning of the appellate court, the suit could be decreed by reversing the appropriate findings of the trial court on which the dismissal of the suit was based. For this, no recourse to Order XLI Rule 33 is necessary. Order XLI Rule 33 enables the appellate court to pass any decree that ought to have been passed by the trial court or grant any further decree as the case may require and the power could be exercised notwithstanding that the appeal was only against a part of the decree and could even be exercised in favour of the respondents, though the respondents might not have filed any appeal or objection against what has been decreed. There is no need to have recourse to Order XLI Rule 33 of the Code, in a case where the suit of the plaintiff has been dismissed and the plaintiff has come up in appeal claiming a decree as prayed for by him in the suit. Then, it will be a question of entertaining the appeal considering the relevant questions and granting the plaintiff the relief he had sought for if he is found entitled to it. In the case on hand therefore there was no occasion for applying Order XLI Rule 33 of the Code. If the view of the High Court was that the suit was barred by Order II Rule 2 of the Code, it is difficult to see how it could have resorted to Order XLI Rule 33 of the Code to grant a decree to the plaintiff in such a suit. In that case, a decree has to be declined. That part of the reasoning of the High Court is therefore
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Ashish Mahendrakar Vs. The State of Maharashtra and Others | under the Companies Act assumes significance. Can a Company registered under the Companies Act be attributed with the same amount of credulity, innocence and unsuspecting animus which an ordinary person may exhibit in the face of an irresistible offer of financial benefit. The nature and structure of the corporate governance suggests otherwise. The decision making process of a corporate entity is expected to be of a more formal and informed nature. A corporate entity is supposed to have the feel of the financial market. While making a business decision, the company is expected to weigh in a number of factors, including creditworthiness of another company with which it enters into a transaction, the viability of the business model of the later, the overall financial position and the corporate structure and governance of such company, and, ultimately, whether the said company would have the wherewithal to honour the financial commitment. 35. With key personnel, like directors and professional managers, a company is not expected to be easily lured by a mere promise of a higher percentage of return on investments, unlike an unsuspecting small time depositor. Th nature, structure and personnel equip a company to take an informed decision whether to enter into a business transaction, be it in the nature of advancement of a loan or making a deposit with another company. In our view, the exclusion of the receipt of money by one company from another company from the purview of the deposit needs to be appreciated in the aforesaid perspective, and that seems to be the rationale behind excluding the said transactions from regulation, under the provisions of the Companies Act and the Rules thereunder. 36. To put it in other words, in our view, the persuasive compulsion of an irresistible offer does not lead to a blindfold investment by one company in another company. Nor a company is afflicted by the same degree of lack of information which an individual depositor may have to suffer. The company, which operates in a fiercely competitive financial market, is supposed to be equipped to make a prudent business decision. Viewed through this prism, and in the backdrop of the object of the enactments, including the MPID Act, to which we have extensively referred above, it does not appear that the object of the MPID Act was to protect the interest of the corporate depositors with the same zeal as that of the common citizens, unsuspecting investors and small depositors. 37. We are mindful of the fact that the constitutional validity of the MPID Act has been upheld, including the legislative competence of the State legislature to enact MPID Act. We are also conscious of the fact that it is neither permissible, nor do we propose, to delve into the said aspect of the matter. However, we deem it apposite to note that in the case of New Horizon Sugar Mills Limited (Supra), the Supreme Court has, in terms, observed that the power to enact the Pondicherry Act, the Tamil Nadu Act and the Maharashtra Act is relatable to Entries 1, 30 and 32 of the State List, which involves the business of unincorporated trading and moneylending which falls within the ambit of Entries 1, 30 and 32 of the State List. In our view, the intendment of the State legislature was not to regulate the business transactions between the two companies, even when the transaction has the flavour of deposit. 38. The matter can be looked at from another angle. The clubbing of the corporate depositors with the other depositors and investors as depositors, for the purpose of prosecution and proceedings under the MPID Act, may, in a given situation, work to the detriment of the small time depositors. If a corporate depositor has made a huge and bulk deposit with a financial establishment, which commits a fraudulent default in repayment of the said deposit, along with the deposits of other small depositors, and the properties of such financial establishment are attached and ultimately disposed of for realization of those deposits, in that event, if the corporate depositor competes with the small depositors and claims pari passu distribution, then the small depositors would be deprived of realization of their money to full potential. 39. In our considered opinion, obliterating the distinction between the corporate depositor and ordinary depositor would render the provisions of the other enactments, like Companies Act, redundant, which provide various remedies for the enforcement of the rights of the corporate depositors, ranging from a petition for winding up to a suit for recovery of the amount, and the corporate depositor may not be required to exhaust the remedies provided in the other enactments. The summary remedy provided in the MPID Act does not seem to have been conceived by the State legislature as the remedy for enforcement of the rights of one corporate entity against another. A corporate entity cannot claim to suffer from the vagaries which a small time depositor would encounter in realising the amount, in an ordinary manner, and for whom the summary remedy is provided. 40. In the aforesaid view of the matter, we are impelled to hold that the the inter-corporate deposit/loan, i.e., a loan advanced / deposit made by a company with another company registered under the provisions of the Companies Act would not amount to a deposit within the meaning and for the purpose of the MPID Act. 41. Reverting to the facts of the case, it would be necessary to note that it was submitted on behalf of the petitioner that an amount of Rs.24 crores has already been secured by the Competent Authority and it has been kept in an interest bearing fixed deposit. It was further submitted that the company is ready to deposit further amount to meet the outstanding liability of FD holders, i.e., Rs. 36,28,79,797/- shown in the summary as on December 12, 2017. It was, thus, submitted that the company would deposit the balance amount of about Rs.12 crores to meet the said liability. | 1[ds]6. We have given our anxious consideration to the rival submissions canvassed across the bar. To begin with, we are not persuaded to throw the challenge overboard on the count of locus of the petitioner, raised by the learned Special P.P. Indisputably, the petitioner has been arraigned as an accused in Special MPID case No.4 of 20147. In the charge¬sheet, copy of which is annexed to the petition, it is alleged that the petitioner Ashish Mahendrakar was an authorized signatory, in the accused Financial Establishments namely Birla Power Solutions Ltd., Birla Shloka Edutech Ltd., Zenith Birla (India) Ltd., and Birla Cotsyn (India) Ltd. and has executed important documents of those companies in the said capacity. In this view of the matter, the locus of the petitioner to assail a part of indictment related to the offence punishable under section 3 of the MPID Act cannot be questioned. Even otherwise a legal issue of material significance has been raised in the instant petition10. It is nobodys case that the above¬named four companies do not fall within the definition of Financial Establishment. The controversy revolves around the question as to whether the money accepted by the aforesaid companies in the form of inter¬corporate deposits falls within the dragnet of deposit, within the meaning of MPID Act. The learned Special P.P. was within his rights in advancing the submission that, in the facts of the instant case, the inter-corporate deposit do not fall within any of the subclauses (i) to (vii) of clause (c) so as to exclude them from the ambit of the definition of deposit. However, the petitioner has asserted that the fact that the definition of deposit under section 2(c) does not specifically exclude inter-corporate deposits from its purview does not conclusively determine the issue20. In the backdrop of the aforesaid fasciculus of provisions, the submission on behalf of the petitioner, based on the object of the MPID Act is required to be appreciated. As indicated above, an endevour was made on behalf of the petitioner to drive home the point that in view of the aforesaid provisions contained in the Companies Act, 2013 and the Rules therein, the field so far as the inter¬corporate deposits can be said to be occupied by the Central Legislation and the resort to the provisions of MPID Act, the object of which was to protect the interest of the small depositors, cannot be said to legally sustainable21. It is trite that though the statement of objects and reasons accompanying a statute cannot be used to determine the true meaning and effect of the substantive provisions of a statute, but it is permissible to make a gainful reference to the statements of objects and reasons for the purpose of understanding the background of the legislation, the state of affairs that preceded the enactment, the attendant and surrounding circumstances in relation to the statute and the mischief which the statute sought to curb28. The position which, thus, emerges is that the MPID Act and the enactments passed by the other State Legislatures were with the avowed object of protecting the interest of the depositors. The Legislatures had noticed a pattern of collecting money or deposits from unsuspecting investors after painting a rosy picture of return. The Legislature, thus, provided a special mechanism of attachment of properties and unearthing the money which was swindled so as to ensure that the investors are not left in the lurch by such unscrupulous persons and financial establishments32. For an answer, in our view, the legislative prescription, needs to be carefully appreciated in the backdrop of the object of the MPID Act. Indubitably, the MPID Act does not make a distinction between the corporate and ordinary deposit. In fact, the MPID Act only defines deposit. It does not define depositor. Albiet, section 4 of the Act provides for issuance of an order of attachment of the properties on default in return of deposits upon complaints received from the depositors or otherwise. It would be contextually relevant to note that clause (d) of Rule 2(1) of the Companies (Acceptance and Deposits) Rules, 2014 defines a depositor to mean (i) any member of the company who has made the deposit with the company in accordance with the provisions of sub¬section (3) of the Act; or (ii) any person who has made a deposit with the public company in accordance with the provisions of section 76 of the Act. It bears repetition to record that under the Rules 1975 framed under the Act, 1956 and Rules 2014 framed under the Companies Act, any money received by one company from another company is specifically excluded from the term deposit33. A conjoint reading of the provisions of the Companies Act, and the Rules framed thereunder leads to a legitimate inference that the Parliament did not deem it necessary to regulate the aspect of receipt of any amount by a company from another company, by classifying as a deposit, for the acceptance of which the specific provisions were made under the Companies Act, 1956 and are made in the Companies Act, 2013. The receipt of a money by one company from other company is, however, clubbed with the items of exclusions provided in the Rules, which define deposit36. To put it in other words, in our view, the persuasive compulsion of an irresistible offer does not lead to a blindfold investment by one company in another company. Nor a company is afflicted by the same degree of lack of information which an individual depositor may have to suffer. The company, which operates in a fiercely competitive financial market, is supposed to be equipped to make a prudent business decision. Viewed through this prism, and in the backdrop of the object of the enactments, including the MPID Act, to which we have extensively referred above, it does not appear that the object of the MPID Act was to protect the interest of the corporate depositors with the same zeal as that of the common citizens, unsuspecting investors and small depositors37. We are mindful of the fact that the constitutional validity of the MPID Act has been upheld, including the legislative competence of the State legislature to enact MPID Act. We are also conscious of the fact that it is neither permissible, nor do we propose, to delve into the said aspect of the matter. However, we deem it apposite to note that in the case of New Horizon Sugar Mills Limited (Supra), the Supreme Court has, in terms, observed that the power to enact the Pondicherry Act, the Tamil Nadu Act and the Maharashtra Act is relatable to Entries 1, 30 and 32 of the State List, which involves the business of unincorporated trading and moneylending which falls within the ambit of Entries 1, 30 and 32 of the State List. In our view, the intendment of the State legislature was not to regulate the business transactions between the two companies, even when the transaction has the flavour of deposit38. The matter can be looked at from another angle. The clubbing of the corporate depositors with the other depositors and investors as depositors, for the purpose of prosecution and proceedings under the MPID Act, may, in a given situation, work to the detriment of the small time depositors. If a corporate depositor has made a huge and bulk deposit with a financial establishment, which commits a fraudulent default in repayment of the said deposit, along with the deposits of other small depositors, and the properties of such financial establishment are attached and ultimately disposed of for realization of those deposits, in that event, if the corporate depositor competes with the small depositors and claims pari passu distribution, then the small depositors would be deprived of realization of their money to full potential39. In our considered opinion, obliterating the distinction between the corporate depositor and ordinary depositor would render the provisions of the other enactments, like Companies Act, redundant, which provide various remedies for the enforcement of the rights of the corporate depositors, ranging from a petition for winding up to a suit for recovery of the amount, and the corporate depositor may not be required to exhaust the remedies provided in the other enactments. The summary remedy provided in the MPID Act does not seem to have been conceived by the State legislature as the remedy for enforcement of the rights of one corporate entity against another. A corporate entity cannot claim to suffer from the vagaries which a small time depositor would encounter in realising the amount, in an ordinary manner, and for whom the summary remedy is provided40. In the aforesaid view of the matter, we are impelled to hold that the the inter-corporate deposit/loan, i.e., a loan advanced / deposit made by a company with another company registered under the provisions of the Companies Act would not amount to a deposit within the meaning and for the purpose of the MPID Act. | 1 | 8,311 | 1,655 | ### 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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under the Companies Act assumes significance. Can a Company registered under the Companies Act be attributed with the same amount of credulity, innocence and unsuspecting animus which an ordinary person may exhibit in the face of an irresistible offer of financial benefit. The nature and structure of the corporate governance suggests otherwise. The decision making process of a corporate entity is expected to be of a more formal and informed nature. A corporate entity is supposed to have the feel of the financial market. While making a business decision, the company is expected to weigh in a number of factors, including creditworthiness of another company with which it enters into a transaction, the viability of the business model of the later, the overall financial position and the corporate structure and governance of such company, and, ultimately, whether the said company would have the wherewithal to honour the financial commitment. 35. With key personnel, like directors and professional managers, a company is not expected to be easily lured by a mere promise of a higher percentage of return on investments, unlike an unsuspecting small time depositor. Th nature, structure and personnel equip a company to take an informed decision whether to enter into a business transaction, be it in the nature of advancement of a loan or making a deposit with another company. In our view, the exclusion of the receipt of money by one company from another company from the purview of the deposit needs to be appreciated in the aforesaid perspective, and that seems to be the rationale behind excluding the said transactions from regulation, under the provisions of the Companies Act and the Rules thereunder. 36. To put it in other words, in our view, the persuasive compulsion of an irresistible offer does not lead to a blindfold investment by one company in another company. Nor a company is afflicted by the same degree of lack of information which an individual depositor may have to suffer. The company, which operates in a fiercely competitive financial market, is supposed to be equipped to make a prudent business decision. Viewed through this prism, and in the backdrop of the object of the enactments, including the MPID Act, to which we have extensively referred above, it does not appear that the object of the MPID Act was to protect the interest of the corporate depositors with the same zeal as that of the common citizens, unsuspecting investors and small depositors. 37. We are mindful of the fact that the constitutional validity of the MPID Act has been upheld, including the legislative competence of the State legislature to enact MPID Act. We are also conscious of the fact that it is neither permissible, nor do we propose, to delve into the said aspect of the matter. However, we deem it apposite to note that in the case of New Horizon Sugar Mills Limited (Supra), the Supreme Court has, in terms, observed that the power to enact the Pondicherry Act, the Tamil Nadu Act and the Maharashtra Act is relatable to Entries 1, 30 and 32 of the State List, which involves the business of unincorporated trading and moneylending which falls within the ambit of Entries 1, 30 and 32 of the State List. In our view, the intendment of the State legislature was not to regulate the business transactions between the two companies, even when the transaction has the flavour of deposit. 38. The matter can be looked at from another angle. The clubbing of the corporate depositors with the other depositors and investors as depositors, for the purpose of prosecution and proceedings under the MPID Act, may, in a given situation, work to the detriment of the small time depositors. If a corporate depositor has made a huge and bulk deposit with a financial establishment, which commits a fraudulent default in repayment of the said deposit, along with the deposits of other small depositors, and the properties of such financial establishment are attached and ultimately disposed of for realization of those deposits, in that event, if the corporate depositor competes with the small depositors and claims pari passu distribution, then the small depositors would be deprived of realization of their money to full potential. 39. In our considered opinion, obliterating the distinction between the corporate depositor and ordinary depositor would render the provisions of the other enactments, like Companies Act, redundant, which provide various remedies for the enforcement of the rights of the corporate depositors, ranging from a petition for winding up to a suit for recovery of the amount, and the corporate depositor may not be required to exhaust the remedies provided in the other enactments. The summary remedy provided in the MPID Act does not seem to have been conceived by the State legislature as the remedy for enforcement of the rights of one corporate entity against another. A corporate entity cannot claim to suffer from the vagaries which a small time depositor would encounter in realising the amount, in an ordinary manner, and for whom the summary remedy is provided. 40. In the aforesaid view of the matter, we are impelled to hold that the the inter-corporate deposit/loan, i.e., a loan advanced / deposit made by a company with another company registered under the provisions of the Companies Act would not amount to a deposit within the meaning and for the purpose of the MPID Act. 41. Reverting to the facts of the case, it would be necessary to note that it was submitted on behalf of the petitioner that an amount of Rs.24 crores has already been secured by the Competent Authority and it has been kept in an interest bearing fixed deposit. It was further submitted that the company is ready to deposit further amount to meet the outstanding liability of FD holders, i.e., Rs. 36,28,79,797/- shown in the summary as on December 12, 2017. It was, thus, submitted that the company would deposit the balance amount of about Rs.12 crores to meet the said liability.
### Response:
1
### Explanation:
The position which, thus, emerges is that the MPID Act and the enactments passed by the other State Legislatures were with the avowed object of protecting the interest of the depositors. The Legislatures had noticed a pattern of collecting money or deposits from unsuspecting investors after painting a rosy picture of return. The Legislature, thus, provided a special mechanism of attachment of properties and unearthing the money which was swindled so as to ensure that the investors are not left in the lurch by such unscrupulous persons and financial establishments32. For an answer, in our view, the legislative prescription, needs to be carefully appreciated in the backdrop of the object of the MPID Act. Indubitably, the MPID Act does not make a distinction between the corporate and ordinary deposit. In fact, the MPID Act only defines deposit. It does not define depositor. Albiet, section 4 of the Act provides for issuance of an order of attachment of the properties on default in return of deposits upon complaints received from the depositors or otherwise. It would be contextually relevant to note that clause (d) of Rule 2(1) of the Companies (Acceptance and Deposits) Rules, 2014 defines a depositor to mean (i) any member of the company who has made the deposit with the company in accordance with the provisions of sub¬section (3) of the Act; or (ii) any person who has made a deposit with the public company in accordance with the provisions of section 76 of the Act. It bears repetition to record that under the Rules 1975 framed under the Act, 1956 and Rules 2014 framed under the Companies Act, any money received by one company from another company is specifically excluded from the term deposit33. A conjoint reading of the provisions of the Companies Act, and the Rules framed thereunder leads to a legitimate inference that the Parliament did not deem it necessary to regulate the aspect of receipt of any amount by a company from another company, by classifying as a deposit, for the acceptance of which the specific provisions were made under the Companies Act, 1956 and are made in the Companies Act, 2013. The receipt of a money by one company from other company is, however, clubbed with the items of exclusions provided in the Rules, which define deposit36. To put it in other words, in our view, the persuasive compulsion of an irresistible offer does not lead to a blindfold investment by one company in another company. Nor a company is afflicted by the same degree of lack of information which an individual depositor may have to suffer. The company, which operates in a fiercely competitive financial market, is supposed to be equipped to make a prudent business decision. Viewed through this prism, and in the backdrop of the object of the enactments, including the MPID Act, to which we have extensively referred above, it does not appear that the object of the MPID Act was to protect the interest of the corporate depositors with the same zeal as that of the common citizens, unsuspecting investors and small depositors37. We are mindful of the fact that the constitutional validity of the MPID Act has been upheld, including the legislative competence of the State legislature to enact MPID Act. We are also conscious of the fact that it is neither permissible, nor do we propose, to delve into the said aspect of the matter. However, we deem it apposite to note that in the case of New Horizon Sugar Mills Limited (Supra), the Supreme Court has, in terms, observed that the power to enact the Pondicherry Act, the Tamil Nadu Act and the Maharashtra Act is relatable to Entries 1, 30 and 32 of the State List, which involves the business of unincorporated trading and moneylending which falls within the ambit of Entries 1, 30 and 32 of the State List. In our view, the intendment of the State legislature was not to regulate the business transactions between the two companies, even when the transaction has the flavour of deposit38. The matter can be looked at from another angle. The clubbing of the corporate depositors with the other depositors and investors as depositors, for the purpose of prosecution and proceedings under the MPID Act, may, in a given situation, work to the detriment of the small time depositors. If a corporate depositor has made a huge and bulk deposit with a financial establishment, which commits a fraudulent default in repayment of the said deposit, along with the deposits of other small depositors, and the properties of such financial establishment are attached and ultimately disposed of for realization of those deposits, in that event, if the corporate depositor competes with the small depositors and claims pari passu distribution, then the small depositors would be deprived of realization of their money to full potential39. In our considered opinion, obliterating the distinction between the corporate depositor and ordinary depositor would render the provisions of the other enactments, like Companies Act, redundant, which provide various remedies for the enforcement of the rights of the corporate depositors, ranging from a petition for winding up to a suit for recovery of the amount, and the corporate depositor may not be required to exhaust the remedies provided in the other enactments. The summary remedy provided in the MPID Act does not seem to have been conceived by the State legislature as the remedy for enforcement of the rights of one corporate entity against another. A corporate entity cannot claim to suffer from the vagaries which a small time depositor would encounter in realising the amount, in an ordinary manner, and for whom the summary remedy is provided40. In the aforesaid view of the matter, we are impelled to hold that the the inter-corporate deposit/loan, i.e., a loan advanced / deposit made by a company with another company registered under the provisions of the Companies Act would not amount to a deposit within the meaning and for the purpose of the MPID Act.
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Fatma Haji All Mohammad Haji & Others Vs. State of Bombay | to the plaintiff regarding those lands as prayed for. As regards the latter, it was held that it was within the discretion of the Government to order an alteration of the assessment on such lands and this discretion could not be questioned in a Court of law. The plaintiff being dissatisfied with this part of the decision made an application for leave to appeal to the Privy Council on 15th September 1945. During the pendency of the application the plaintiff died and his heirs and executors were impleaded as his legal representatives. A certificate for leave to appeal to the Privy Council was granted on 10th February 1947 and the appeal preferred under the certificate is now before us for decision.18. There is no controversy in this appeal as regards the reliefs that have been given to the plaintiff by the High Court. The appeal concerns the further relief refused to the plaintiff in respect to the lands mentioned in Sch. II. It is contended on behalf of the appellant that under the terms of the conveyance dated 25th January 1819 and of the convenience contained therein it was not open to the Government or the Collector to refuse the alteration of the assessment claimed by the plaintiff and that the Government could not give any direction under R. 92 which would be contrary to these covenants and assurances. It was said that the Government was bound to use its power to levy assessment as trustee for the transferee, and that the exercise of this power could not be arbitrarily refused by it. It was urged that the Government Resolution dated 5th June 1907 clearly indicated that the rules framed under the Land Revenue Code were not intended to affect adversely the owners of alienated lands and the Collector was bound to make an assessment as required by the plaintiff. Lastly, it was urged that as a matter of fact Government never exercised its power under R. 92 and never gave a direction to the Collector to a contrary effect and that the mere affirmation of the erroneous order of the Collector by Government did not amount to a direction contemplated by the provisions of R. 92.19. Having considered this case in all its aspects, we have reached the decision that the High Courts decision in so far as it refused relief to the plaintiff in respect to the lands mentioned in Sch. II should be reversed. Rule 92 cited in the earlier part of this judgment in imperative terms directs the Collector to alter the assessment in case agricultural lands are converted to non-agricultural use. The Collector has no option in the matter and as soon as an application is made to him he should proceed to make an assessment and levy it on the non-agricultural lands. When the Collector declined to accede to the request of the plaintiff he clearly acted in contravention of the clear provisions of the rule, because admittedly at that time no "directions to the contrary" had been gived to him by the Government. There was no resolution of the Government in existence and no notification had been issued under the provisions of R. 92 directing the Collector not to make an alteration in the assessment when required to do so. The Commissioner, in dismissing the plaintiffs appeal, also contravened the provisions of R. 92. When the matter went up in appeal to the Governor in Council, no decision was taken under the provisions of R. 92. The High Court, assumed that the confirmation of the action of the Collector by the Government amounted to a direction by the Government to the contrary in respect of the lands in question.20. We are unable to agree with this conclusion. When Government has been given the power to give directions to the Collector not to act in accordance with the imperative provisions of a rule which enjoin upon him to make the altered assessment, that power has to be exercised in clear and unambiguous terms as it affects civil rights of the persons concerned and the decision that the power has been exercised should be notified in the usual manner in which such decisions are made known to the public. It was conceded by Mr. Joshi that no such decision was taken by Government and no direction was issued by Government under R.99. Dismissal by the Government of the plaintiffs appeal and affirmation by it of an erroneous order of the Collector could not be hold to amount to action under the provisions of R. 92. In these circumstances, the plaintiff was clearly entitled to further relief in respect to lands mentioned in Sch. 9 and a direction should have been issued of the State Government for making altered assessment on non-agricultural land and levy it on them and pay it to the plaintiff.21. Mr. Joshi contended that the true effect of the provisions contained in S. 48 (2) and R. 92 was that the Government was not bound to levy altered assessment on lands converted to non-agricultural use, that the section merely provided that the persons in possession of land were liable for such assessment but it did not say that it was obligatory on the Government to make it and that the Court had no jurisdiction to interfere with the discretion of the Government in the matter. We think that when a liability is imposed by a statute, that liability cannot be defeated by the exercise of any discretion by Government or by making rules which may negative that liability, but it is not necessary in this case to finally decide the point as the appeal stands decided otherwise. It is also not necessary to express an opinion as to the precise scope of the power conferred on Government by the language of R. 92.22. The plaintiffs learned counsel very properly did not press his appeal in respect in the claim of damages concerning lands mentioned in Sch.2. Plaintiffs suit to that extent fails.23. | 1[ds]Having considered this case in all its aspects, we have reached the decision that the High Courts decision in so far as it refused relief to the plaintiff in respect to the lands mentioned in Sch. II should be reversed. Rule 92 cited in the earlier part of this judgment in imperative terms directs the Collector to alter the assessment in case agricultural lands are converted to non-agricultural use. The Collector has no option in the matter and as soon as an application is made to him he should proceed to make an assessment and levy it on the non-agricultural lands. When the Collector declined to accede to the request of the plaintiff he clearly acted in contravention of the clear provisions of the rule, because admittedly at that time no "directions to the contrary" had been gived to him by the Government. There was no resolution of the Government in existence and no notification had been issued under the provisions of R. 92 directing the Collector not to make an alteration in the assessment when required to do so. The Commissioner, in dismissing the plaintiffs appeal, also contravened the provisions of R.When the matter went up in appeal to the Governor in Council, no decision was taken under the provisions of R. 92. The High Court, assumed that the confirmation of the action of the Collector by the Government amounted to a direction by the Government to the contrary in respect of the lands in question.We are unable to agree with this conclusion. When Government has been given the power to give directions to the Collector not to act in accordance with the imperative provisions of a rule which enjoin upon him to make the altered assessment, that power has to be exercised in clear and unambiguous terms as it affects civil rights of the persons concerned and the decision that the power has been exercised should be notified in the usual manner in which such decisions are made known to theby the Government of the plaintiffs appeal and affirmation by it of an erroneous order of the Collector could not be hold to amount to action under the provisions of R. 92. In these circumstances, the plaintiff was clearly entitled to further relief in respect to lands mentioned in Sch. 9 and a direction should have been issued of the State Government for making altered assessment on non-agricultural land and levy it on them and pay it to the plaintiff.The plaintiffs learned counsel very properly did not press his appeal in respect in the claim of damages concerning lands mentioned in Sch.2. Plaintiffs suit to that extent fails. | 1 | 3,225 | 466 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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to the plaintiff regarding those lands as prayed for. As regards the latter, it was held that it was within the discretion of the Government to order an alteration of the assessment on such lands and this discretion could not be questioned in a Court of law. The plaintiff being dissatisfied with this part of the decision made an application for leave to appeal to the Privy Council on 15th September 1945. During the pendency of the application the plaintiff died and his heirs and executors were impleaded as his legal representatives. A certificate for leave to appeal to the Privy Council was granted on 10th February 1947 and the appeal preferred under the certificate is now before us for decision.18. There is no controversy in this appeal as regards the reliefs that have been given to the plaintiff by the High Court. The appeal concerns the further relief refused to the plaintiff in respect to the lands mentioned in Sch. II. It is contended on behalf of the appellant that under the terms of the conveyance dated 25th January 1819 and of the convenience contained therein it was not open to the Government or the Collector to refuse the alteration of the assessment claimed by the plaintiff and that the Government could not give any direction under R. 92 which would be contrary to these covenants and assurances. It was said that the Government was bound to use its power to levy assessment as trustee for the transferee, and that the exercise of this power could not be arbitrarily refused by it. It was urged that the Government Resolution dated 5th June 1907 clearly indicated that the rules framed under the Land Revenue Code were not intended to affect adversely the owners of alienated lands and the Collector was bound to make an assessment as required by the plaintiff. Lastly, it was urged that as a matter of fact Government never exercised its power under R. 92 and never gave a direction to the Collector to a contrary effect and that the mere affirmation of the erroneous order of the Collector by Government did not amount to a direction contemplated by the provisions of R. 92.19. Having considered this case in all its aspects, we have reached the decision that the High Courts decision in so far as it refused relief to the plaintiff in respect to the lands mentioned in Sch. II should be reversed. Rule 92 cited in the earlier part of this judgment in imperative terms directs the Collector to alter the assessment in case agricultural lands are converted to non-agricultural use. The Collector has no option in the matter and as soon as an application is made to him he should proceed to make an assessment and levy it on the non-agricultural lands. When the Collector declined to accede to the request of the plaintiff he clearly acted in contravention of the clear provisions of the rule, because admittedly at that time no "directions to the contrary" had been gived to him by the Government. There was no resolution of the Government in existence and no notification had been issued under the provisions of R. 92 directing the Collector not to make an alteration in the assessment when required to do so. The Commissioner, in dismissing the plaintiffs appeal, also contravened the provisions of R. 92. When the matter went up in appeal to the Governor in Council, no decision was taken under the provisions of R. 92. The High Court, assumed that the confirmation of the action of the Collector by the Government amounted to a direction by the Government to the contrary in respect of the lands in question.20. We are unable to agree with this conclusion. When Government has been given the power to give directions to the Collector not to act in accordance with the imperative provisions of a rule which enjoin upon him to make the altered assessment, that power has to be exercised in clear and unambiguous terms as it affects civil rights of the persons concerned and the decision that the power has been exercised should be notified in the usual manner in which such decisions are made known to the public. It was conceded by Mr. Joshi that no such decision was taken by Government and no direction was issued by Government under R.99. Dismissal by the Government of the plaintiffs appeal and affirmation by it of an erroneous order of the Collector could not be hold to amount to action under the provisions of R. 92. In these circumstances, the plaintiff was clearly entitled to further relief in respect to lands mentioned in Sch. 9 and a direction should have been issued of the State Government for making altered assessment on non-agricultural land and levy it on them and pay it to the plaintiff.21. Mr. Joshi contended that the true effect of the provisions contained in S. 48 (2) and R. 92 was that the Government was not bound to levy altered assessment on lands converted to non-agricultural use, that the section merely provided that the persons in possession of land were liable for such assessment but it did not say that it was obligatory on the Government to make it and that the Court had no jurisdiction to interfere with the discretion of the Government in the matter. We think that when a liability is imposed by a statute, that liability cannot be defeated by the exercise of any discretion by Government or by making rules which may negative that liability, but it is not necessary in this case to finally decide the point as the appeal stands decided otherwise. It is also not necessary to express an opinion as to the precise scope of the power conferred on Government by the language of R. 92.22. The plaintiffs learned counsel very properly did not press his appeal in respect in the claim of damages concerning lands mentioned in Sch.2. Plaintiffs suit to that extent fails.23.
### Response:
1
### Explanation:
Having considered this case in all its aspects, we have reached the decision that the High Courts decision in so far as it refused relief to the plaintiff in respect to the lands mentioned in Sch. II should be reversed. Rule 92 cited in the earlier part of this judgment in imperative terms directs the Collector to alter the assessment in case agricultural lands are converted to non-agricultural use. The Collector has no option in the matter and as soon as an application is made to him he should proceed to make an assessment and levy it on the non-agricultural lands. When the Collector declined to accede to the request of the plaintiff he clearly acted in contravention of the clear provisions of the rule, because admittedly at that time no "directions to the contrary" had been gived to him by the Government. There was no resolution of the Government in existence and no notification had been issued under the provisions of R. 92 directing the Collector not to make an alteration in the assessment when required to do so. The Commissioner, in dismissing the plaintiffs appeal, also contravened the provisions of R.When the matter went up in appeal to the Governor in Council, no decision was taken under the provisions of R. 92. The High Court, assumed that the confirmation of the action of the Collector by the Government amounted to a direction by the Government to the contrary in respect of the lands in question.We are unable to agree with this conclusion. When Government has been given the power to give directions to the Collector not to act in accordance with the imperative provisions of a rule which enjoin upon him to make the altered assessment, that power has to be exercised in clear and unambiguous terms as it affects civil rights of the persons concerned and the decision that the power has been exercised should be notified in the usual manner in which such decisions are made known to theby the Government of the plaintiffs appeal and affirmation by it of an erroneous order of the Collector could not be hold to amount to action under the provisions of R. 92. In these circumstances, the plaintiff was clearly entitled to further relief in respect to lands mentioned in Sch. 9 and a direction should have been issued of the State Government for making altered assessment on non-agricultural land and levy it on them and pay it to the plaintiff.The plaintiffs learned counsel very properly did not press his appeal in respect in the claim of damages concerning lands mentioned in Sch.2. Plaintiffs suit to that extent fails.
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Yenumula Mallu Dora Vs. Peruri Seetharatnam And Others | the Subordinate Judge have concurrently accepted, that he had made some transfers to screen his properties from his creditors and had suffered a decree for maintenance in a suit by his wife. In view of these facts, which the appellant cannot now deny, he is driven to support his case by argument on law. The argument, as we have seen, is two-fold. We are not inclined to accept either leg of the argument. 6. An act of insolvency once committed cannot be explained or purged by subsequent events. The insolvent cannot claim to wipe it off by paying some of his creditors. This is because the same act of insolvency is available to all his creditors. By satisfying one of the creditors the act of insolvency is not erased unless all creditors are satisfied because till all creditors are paid the debtor must prove his ability to meet his liabilities. In this case the petitioning creditors had their own decrees. It was in the decree of another creditor that the payment was made but only after the act of insolvency was committed. Besides the petitioning creditors there were several other creditors to whom the appellant owed large sums of money and his total debts aggregated to Rs. Two lakhs. It is plain that any of the remaining creditors, including the petitioning creditors, could rely upon the act of insolvency even though one or more creditors might have been paid in full. The act of insolvency which the appellant had committed thus remained and was not purged by payment of decretal amount after the sale in execution of the money decree. 7. The next question is whether the Subordinate Judge should have exercised his discretion under S. 25 to dismiss the petition of the creditors treating the deposit of the money as sufficient cause. Section 25 of the Provincial Insolvency Act is in wide terms but it is impossible to give effect to those wide terms so as to confer a jurisdiction to ignore an act of insolvency at least in cases where the debtor continues to be heavily indebted and there is no proof that he is able to pay his debts. The section reads as follows : 25. Dismissal of petition. (1) In the case of a petition presented by a creditor, where the Court is not satisfied with the proof of his right to present the petition or of the service on the debtor of notice of the order admitting the petition, or of the alleged act of insolvency, or is satisfied by the debtor that he is able to pay his debts, or that for any other sufficient cause no order ought to be made the Court shall dismiss the petition (2) xx xx xx x xx x xx x The section expressly mentions three circumstances in which the petition made by a creditor must be dismissed namely, (i) the absence of the right of the creditor to make the application; (ii) failure to serve the debtor with the notice of the admission of the petition; and (iii) the ability of the debtor to pay his debts. In addition, the Court has been given a discretion to dismiss the petition if it is satisfied that there is other sufficient cause for not making the order against the debtor. The last clause of the section need not necessarily be read ejusdem generis with the previous ones but even so there can be no sufficient cause if, after an act of insolvency is established, the debtor is unable to pay his debts. The discretion to dismiss the petition can only be exercised under very different circumstances. What those cases would be it is neither easy nor necessary to specify, but examples of sufficient cause are to be found when the petition is malicious and has been made for some collateral or inequitable purpose such as putting pressure upon the debtor or for extorting money from him, or where the petitioning creditor having refused tender of money, fraudulently and maliciously files the application. An order is sometimes not made when by the receiving order the only asset of the debtor would be destroyed such as a life interest which would cease on his bankruptcy. Cases have also occurred where a receiving order was not made because there were no assets and it would have been a waste of time and money to make a receiving order against the debtor. These examples merely illustrate the grounds on which orders are generally made in the exercise of the discretion conferred by the last clause of S. 25. This case is clearly one which cannot be treated under that clause. There are huge debts and no means to pay even though there are properties which, if realised, may satisfy at least in part the creditors of the appellant. The appellant was clearly guilty of an act of insolvency and an act of insolvency cannot be purged by anything he may have done subsequently. There is no proof of malicious or inequitable dealing on the part of the petitioning creditors. They have proved the necessary facts and have established both the act of insolvency and the inability of the appellant to pay his debts. The appellant has not been able to prove that he is able to pay. In fact, he has admitted that he is unable to pay his debts. 8. The High Courts have taken a similar and uniform view of such cases. These rulings are quite numerous but the following may be seen : Pratapmal Rameshwar v. Chunilal Johuri, AIR 1933 Cal 417 , Lal Chand Chaudhri v. Bogha Ram, AIR 1938 Lah 819 and AIR Mad 306. We do not consider it necessary to examine the facts in those cases because they apply correctly the principles, which we have set out above to the facts in the cases then present. It is, therefore, quite clear that the adjudication of the appellant and the receiving order against him were properly made. | 0[ds]The section expressly mentions three circumstances in which the petition made by a creditor must be dismissed namely, (i) the absence of the right of the creditor to make the application; (ii) failure to serve the debtor with the notice of the admission of the petition; and (iii) the ability of the debtor to pay his debts. In addition, the Court has been given a discretion to dismiss the petition if it is satisfied that there is other sufficient cause for not making the order against the debtor. The last clause of the section need not necessarily be read ejusdem generis with the previous ones but even so there can be no sufficient cause if, after an act of insolvency is established, the debtor is unable to pay his debts. The discretion to dismiss the petition can only be exercised under very different circumstances. What those cases would be it is neither easy nor necessary to specify, but examples of sufficient cause are to be found when the petition is malicious and has been made for some collateral or inequitable purpose such as putting pressure upon the debtor or for extorting money from him, or where the petitioning creditor having refused tender of money, fraudulently and maliciously files the application. An order is sometimes not made when by the receiving order the only asset of the debtor would be destroyed such as a life interest which would cease on his bankruptcy. Cases have also occurred where a receiving order was not made because there were no assets and it would have been a waste of time and money to make a receiving order against the debtor. These examples merely illustrate the grounds on which orders are generally made in the exercise of the discretion conferred by the last clause of S. 25. This case is clearly one which cannot be treated under that clause. There are huge debts and no means to pay even though there are properties which, if realised, may satisfy at least in part the creditors of the appellant. The appellant was clearly guilty of an act of insolvency and an act of insolvency cannot be purged by anything he may have done subsequently. There is no proof of malicious or inequitable dealing on the part of the petitioning creditors. They have proved the necessary facts and have established both the act of insolvency and the inability of the appellant to pay his debts. The appellant has not been able to prove that he is able to pay. In fact, he has admitted that he is unable to pay his debts8. The High Courts have taken a similar and uniform view of such cases. These rulings are quite numerous but the following may be seen : Pratapmal Rameshwar v. Chunilal Johuri, AIR 1933 Cal 417 , Lal Chand Chaudhri v. Bogha Ram, AIR 1938 Lah 819 and AIR Mad 306. We do not consider it necessary to examine the facts in those cases because they apply correctly the principles, which we have set out above to the facts in the cases then present. It is, therefore, quite clear that the adjudication of the appellant and the receiving order against him were properly made. | 0 | 2,277 | 584 | ### 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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the Subordinate Judge have concurrently accepted, that he had made some transfers to screen his properties from his creditors and had suffered a decree for maintenance in a suit by his wife. In view of these facts, which the appellant cannot now deny, he is driven to support his case by argument on law. The argument, as we have seen, is two-fold. We are not inclined to accept either leg of the argument. 6. An act of insolvency once committed cannot be explained or purged by subsequent events. The insolvent cannot claim to wipe it off by paying some of his creditors. This is because the same act of insolvency is available to all his creditors. By satisfying one of the creditors the act of insolvency is not erased unless all creditors are satisfied because till all creditors are paid the debtor must prove his ability to meet his liabilities. In this case the petitioning creditors had their own decrees. It was in the decree of another creditor that the payment was made but only after the act of insolvency was committed. Besides the petitioning creditors there were several other creditors to whom the appellant owed large sums of money and his total debts aggregated to Rs. Two lakhs. It is plain that any of the remaining creditors, including the petitioning creditors, could rely upon the act of insolvency even though one or more creditors might have been paid in full. The act of insolvency which the appellant had committed thus remained and was not purged by payment of decretal amount after the sale in execution of the money decree. 7. The next question is whether the Subordinate Judge should have exercised his discretion under S. 25 to dismiss the petition of the creditors treating the deposit of the money as sufficient cause. Section 25 of the Provincial Insolvency Act is in wide terms but it is impossible to give effect to those wide terms so as to confer a jurisdiction to ignore an act of insolvency at least in cases where the debtor continues to be heavily indebted and there is no proof that he is able to pay his debts. The section reads as follows : 25. Dismissal of petition. (1) In the case of a petition presented by a creditor, where the Court is not satisfied with the proof of his right to present the petition or of the service on the debtor of notice of the order admitting the petition, or of the alleged act of insolvency, or is satisfied by the debtor that he is able to pay his debts, or that for any other sufficient cause no order ought to be made the Court shall dismiss the petition (2) xx xx xx x xx x xx x The section expressly mentions three circumstances in which the petition made by a creditor must be dismissed namely, (i) the absence of the right of the creditor to make the application; (ii) failure to serve the debtor with the notice of the admission of the petition; and (iii) the ability of the debtor to pay his debts. In addition, the Court has been given a discretion to dismiss the petition if it is satisfied that there is other sufficient cause for not making the order against the debtor. The last clause of the section need not necessarily be read ejusdem generis with the previous ones but even so there can be no sufficient cause if, after an act of insolvency is established, the debtor is unable to pay his debts. The discretion to dismiss the petition can only be exercised under very different circumstances. What those cases would be it is neither easy nor necessary to specify, but examples of sufficient cause are to be found when the petition is malicious and has been made for some collateral or inequitable purpose such as putting pressure upon the debtor or for extorting money from him, or where the petitioning creditor having refused tender of money, fraudulently and maliciously files the application. An order is sometimes not made when by the receiving order the only asset of the debtor would be destroyed such as a life interest which would cease on his bankruptcy. Cases have also occurred where a receiving order was not made because there were no assets and it would have been a waste of time and money to make a receiving order against the debtor. These examples merely illustrate the grounds on which orders are generally made in the exercise of the discretion conferred by the last clause of S. 25. This case is clearly one which cannot be treated under that clause. There are huge debts and no means to pay even though there are properties which, if realised, may satisfy at least in part the creditors of the appellant. The appellant was clearly guilty of an act of insolvency and an act of insolvency cannot be purged by anything he may have done subsequently. There is no proof of malicious or inequitable dealing on the part of the petitioning creditors. They have proved the necessary facts and have established both the act of insolvency and the inability of the appellant to pay his debts. The appellant has not been able to prove that he is able to pay. In fact, he has admitted that he is unable to pay his debts. 8. The High Courts have taken a similar and uniform view of such cases. These rulings are quite numerous but the following may be seen : Pratapmal Rameshwar v. Chunilal Johuri, AIR 1933 Cal 417 , Lal Chand Chaudhri v. Bogha Ram, AIR 1938 Lah 819 and AIR Mad 306. We do not consider it necessary to examine the facts in those cases because they apply correctly the principles, which we have set out above to the facts in the cases then present. It is, therefore, quite clear that the adjudication of the appellant and the receiving order against him were properly made.
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### Explanation:
The section expressly mentions three circumstances in which the petition made by a creditor must be dismissed namely, (i) the absence of the right of the creditor to make the application; (ii) failure to serve the debtor with the notice of the admission of the petition; and (iii) the ability of the debtor to pay his debts. In addition, the Court has been given a discretion to dismiss the petition if it is satisfied that there is other sufficient cause for not making the order against the debtor. The last clause of the section need not necessarily be read ejusdem generis with the previous ones but even so there can be no sufficient cause if, after an act of insolvency is established, the debtor is unable to pay his debts. The discretion to dismiss the petition can only be exercised under very different circumstances. What those cases would be it is neither easy nor necessary to specify, but examples of sufficient cause are to be found when the petition is malicious and has been made for some collateral or inequitable purpose such as putting pressure upon the debtor or for extorting money from him, or where the petitioning creditor having refused tender of money, fraudulently and maliciously files the application. An order is sometimes not made when by the receiving order the only asset of the debtor would be destroyed such as a life interest which would cease on his bankruptcy. Cases have also occurred where a receiving order was not made because there were no assets and it would have been a waste of time and money to make a receiving order against the debtor. These examples merely illustrate the grounds on which orders are generally made in the exercise of the discretion conferred by the last clause of S. 25. This case is clearly one which cannot be treated under that clause. There are huge debts and no means to pay even though there are properties which, if realised, may satisfy at least in part the creditors of the appellant. The appellant was clearly guilty of an act of insolvency and an act of insolvency cannot be purged by anything he may have done subsequently. There is no proof of malicious or inequitable dealing on the part of the petitioning creditors. They have proved the necessary facts and have established both the act of insolvency and the inability of the appellant to pay his debts. The appellant has not been able to prove that he is able to pay. In fact, he has admitted that he is unable to pay his debts8. The High Courts have taken a similar and uniform view of such cases. These rulings are quite numerous but the following may be seen : Pratapmal Rameshwar v. Chunilal Johuri, AIR 1933 Cal 417 , Lal Chand Chaudhri v. Bogha Ram, AIR 1938 Lah 819 and AIR Mad 306. We do not consider it necessary to examine the facts in those cases because they apply correctly the principles, which we have set out above to the facts in the cases then present. It is, therefore, quite clear that the adjudication of the appellant and the receiving order against him were properly made.
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Ravinder Parkash & Another Vs. State of Haryana | take us to the next question involved in this appeal that is in regard to identification of the dead body. For this purpose, the prosecution has relied upon the evidence of PWs3 and 4 according to the prosecution case, these witnesses were taken on 18.4.1993 by the investigating officer PW-9 to the place where a dead body was lying and after seeing the dead body, these witnesses alleged to have identified the same as that of their relative Chander Has. 12. If we see the evidence of PW-3, he merely says that he identified the dead body without giving any specific reason for the same. From the medical evidence, it is clear that the dead body was in a highly decomposed state, therefore, it was incumbent on the part of this witness to state how he recognised the body, he has failed to give any cogent reason in this regard, hence, his evidence does not help the prosecution. 13. However PW-4 Jai Bhagwan another relative of Chander Has has gone further and states that he identified the dead body from the artificial jaw (dentures) which Chander Has had got fitted and from his ears and nose. Regarding dentures, he says that he saw them near the dead body. But PW-9, who conducted the inquest, has not supported this version of PW-4. PW-9 has specifically stated that he did not find any such dentures at the place where the dead body was found. So far as the identification of the dead body by this witness from the ears and nose is concerned, we see from the evidence of PW-7 the doctor who conducted the post mortem that the dead body had deteriorated so much that the ears, eye-balls, nose and lips had disfigured. Thus from a total reading of the evidence of the doctor, it is clear that it was not possible for anybody to have identified the dead body from the ears and nose of the deceased because of the condition of decomposition. Therefore, what remains is only the clothes that was found on the dead body of the deceased. It is to be noted neither PW-2 nor PW-5 in their evidence has stated what clothes Chander Has was wearing when he went with the appellants. PW-4 has not given any reason for identifying the clothes of the deceased. PW-3 who is also a relative of Chander Has has not identified the clothes of Chander Has. Therefore, identification of the dead body by PW-4 by the clothes cannot be accepted. Here, we also notice even according to PW-9, the wife of Chander Has, viz. PW-2 had not identified the dead body. Therefore, we find it not safe to reply upon the evidence of PW-4 in regard to identification of the body. That apart it has come in evidence that in the complaint filed on 17.4.1993 before the Police Station it is mentioned that the height of the missing Chander Has was 5.7" while PW-7 the doctor who specifically measured the dead body has in unequivocal terms stated that the height or the length of the dead body was 5.10". This is also a material discrepancy that could be noticed in the identification of the dead body. From the discussion made herein above, we are of the opinion that the prosecution has failed to establish that the dead body found by the Police on 18.4.1993 was that of missing Chander Has. 14. Shri J.P. Dhanda, learned counsel for the State, after referring to the evidence of the prosecution, very vehemently contended that the prosecution has proved beyond reasonable doubt that the dead body was that of Chander Has and Chander Has was taken away by the appellants on 14.4.1993 and from the recovery made from the appellants, it is crystal clear that it is the appellants who committed the murder of the Chander Has. He further pointed out that this Court in an appeal ought not to interfere with the findings of fact concurrently arrived at by the courts below by re-appreciating the evidence on record. It is true normally this Court would not substitute its subjective opinion of the evidence with that of concurrent findings of the two courts below. However, having considered the findings of the courts below, we have noticed that the trial court, though by a lengthy judgment has found the appellants guilty, we have found that finding is not supported by the material on record. Therefore, we have considered the prosecution evidence independently and have disagreed with the same for reasons mentioned in this judgment. We have not done this by merely substituting our subjective satisfaction but we have done the same for reasons based on material on record. We have found that no reliance can be placed on the evidence of PWs. 2, 3 and 4 and the basis for the reasons given by us though available on record have not been considered by the trial court. So far as the High Court is concerned, we need not give any additional reasons for differing from the same because the impugned judgment of the High Court is only a summary of the judgment of the trial court.15. For the reasons stated above, we find that the prosecution case, which is purely based on circumstantial evidence, has not been established beyond all reasonable doubts. Once we discard the evidence of the prosecution in regard to its theory of "last seen together", identification of the dead body, and filing of the complaint on 17.4.1993, the links in the chain of circumstances get broken, hence, the chain of circumstances will not be complete. Then assuming for the sake of argument that the prosecution has been able to establish the recovery of the weapon, which in any case had no blood stains on it, and the motorcycle, by themselves would not complete that chain so as to be consistent with no other hypothesis, except the guilt of the accused. Therefore, we find it unsafe to rely upon the prosecution case. | 1[ds]6. The High Court on appeal, in our opinion, in a very brief discussion of the evidence concurred with the finding of the trial court. In this process it noted that the last seen evidence of PWs.2 and 5 inspires full confidence and the same is fully supported by Daily Entry No. 7 at Sampla Police Station dated 17.4.1993. It also came to the conclusion that the motive put forth by the prosecution stood fully established. According to the High Court, the appellants in the guise of settling their dispute had taken away the deceased on 14.4.1993. The High Court also held that the defence taken by the appellants cannot be relied upon and on this basis dismissed theher evidence before the Court she did not mention who told her this fact in the bazaar. Then she states that after hearing this news she went to house and gave this information to other members of the family and in the company of PWs.3 and 4 she went to the place where the dead body was lying and identified the said dead body as that of her husband. She specifically states that Police came there later and that she had identified the dead body earlier. During the course of examination she further elaborated this aspect of her evidence by stating that "After identifying the dead body I went to the police station and told the Police about the fact". This piece of her evidence runs counter to the evidence ofas noted already. The above evidence ofthe Investigating Officer as to the absence ofat the place where the dead body was found is also supported by the evidence of PWs. 3 and 4, who also did not state anything about the presence ofat the time and place where the dead body was found. As a matter of fact,Raghubir who is the uncle of the deceased specifically states thatwas not called to the place where the dead body was found. From the above evidence, it is clear thatfor reasons better known to her has chosen to give a palpably untrue version as to her going to the place where the dead body was found and identifying the same, then going to the police station and informing the same. Added to this we notice that there is a suggestion made to this witness by the defence, which of course, is denied bythat on 14.4.1993 she was not at home since she was attending to a very close friend of her husband who had undergone an eye operation in a nearby eye camp, therefore, she could not have seen, the going away of her husband with the appellants. From the above discussion of the evidence ofwe find thathas not come out with the true version of the case and the courts below have not examined these discrepancies, improvements and improbabilities in her evidence while accepting the same.It is the prosecution case that in regard to missing of Chander Has PWs 2 and 8 came to the Police Station at Sampla on 17.4.1993 at about 8 a.m. in the morning and lodged a missing persons complaint. The evidence has very strongly questioned this part of the prosecution case. In spite of the same the prosecution has failed to examine ASI Chand Mohammad who according to it had recorded the statements of PWs 2 and 89 and also entered the complaint in the daily register of the station. In our opinion, this entry has not been proved beyond reasonable doubt.has not stated anything about this fact in her evidence. PW.8 who is the other person who accompanied PW.2 to the Police Station on 17.4.1993 has not supported the prosecution case and he was treated as hostile andIn this background, the non examination of ASI Chand Mohammad creates considerable doubt as to the prosecution case. Therefore, we find it difficult to accept the prosecution case as to the complaint of 17.4.1993 which cannot befrom a total reading of the evidence of the doctor, it is clear that it was not possible for anybody to have identified the dead body from the ears and nose of the deceased because of the condition of decomposition. Therefore, what remains is only the clothes that was found on the dead body of the deceased. It is to be noted neitherin their evidence has stated what clothes Chander Has was wearing when he went with the appellants.has not given any reason for identifying the clothes of the deceased.who is also a relative of Chander Has has not identified the clothes of Chander Has. Therefore, identification of the dead body byby the clothes cannot be accepted. Here, we also notice even according tothe wife of Chander Has, viz.had not identified the dead body. Therefore, we find it not safe to reply upon the evidence ofin regard to identification of the body. That apart it has come in evidence that in the complaint filed on 17.4.1993 before the Police Station it is mentioned that the height of the missing Chander Has was 5.7" whilethe doctor who specifically measured the dead body has in unequivocal terms stated that the height or the length of the dead body was 5.10". This is also a material discrepancy that could be noticed in the identification of the dead body. From the discussion made herein above, we are of the opinion that the prosecution has failed to establish that the dead body found by the Police on 18.4.1993 was that of missing Chanderis true normally this Court would not substitute its subjective opinion of the evidence with that of concurrent findings of the two courts below. However, having considered the findings of the courts below, we have noticed that the trial court, though by a lengthy judgment has found the appellants guilty, we have found that finding is not supported by the material on record. Therefore, we have considered the prosecution evidence independently and have disagreed with the same for reasons mentioned in this judgment. We have not done this by merely substituting our subjective satisfaction but we have done the same for reasons based on material on record. We have found that no reliance can be placed on the evidence of PWs. 2, 3 and 4 and the basis for the reasons given by us though available on record have not been considered by the trial court. So far as the High Court is concerned, we need not give any additional reasons for differing from the same because the impugned judgment of the High Court is only a summary of the judgment of the trial court.15. For the reasons stated above,we find thatthe prosecution case, which is purely based on circumstantial evidence, has not been established beyond all reasonable doubts. Once we discard the evidence of the prosecution in regard to its theory of "last seen together", identification of the dead body, and filing of the complaint on 17.4.1993, the links in the chain of circumstances get broken, hence, the chain of circumstances will not be complete. Then assuming for the sake of argument that the prosecution has been able to establish the recovery of the weapon, which in any case had no blood stains on it, and the motorcycle, by themselves would not complete that chain so as to be consistent with no other hypothesis, except the guilt of the accused. Therefore, we find it unsafe to rely upon the prosecution case. | 1 | 4,128 | 1,332 | ### 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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take us to the next question involved in this appeal that is in regard to identification of the dead body. For this purpose, the prosecution has relied upon the evidence of PWs3 and 4 according to the prosecution case, these witnesses were taken on 18.4.1993 by the investigating officer PW-9 to the place where a dead body was lying and after seeing the dead body, these witnesses alleged to have identified the same as that of their relative Chander Has. 12. If we see the evidence of PW-3, he merely says that he identified the dead body without giving any specific reason for the same. From the medical evidence, it is clear that the dead body was in a highly decomposed state, therefore, it was incumbent on the part of this witness to state how he recognised the body, he has failed to give any cogent reason in this regard, hence, his evidence does not help the prosecution. 13. However PW-4 Jai Bhagwan another relative of Chander Has has gone further and states that he identified the dead body from the artificial jaw (dentures) which Chander Has had got fitted and from his ears and nose. Regarding dentures, he says that he saw them near the dead body. But PW-9, who conducted the inquest, has not supported this version of PW-4. PW-9 has specifically stated that he did not find any such dentures at the place where the dead body was found. So far as the identification of the dead body by this witness from the ears and nose is concerned, we see from the evidence of PW-7 the doctor who conducted the post mortem that the dead body had deteriorated so much that the ears, eye-balls, nose and lips had disfigured. Thus from a total reading of the evidence of the doctor, it is clear that it was not possible for anybody to have identified the dead body from the ears and nose of the deceased because of the condition of decomposition. Therefore, what remains is only the clothes that was found on the dead body of the deceased. It is to be noted neither PW-2 nor PW-5 in their evidence has stated what clothes Chander Has was wearing when he went with the appellants. PW-4 has not given any reason for identifying the clothes of the deceased. PW-3 who is also a relative of Chander Has has not identified the clothes of Chander Has. Therefore, identification of the dead body by PW-4 by the clothes cannot be accepted. Here, we also notice even according to PW-9, the wife of Chander Has, viz. PW-2 had not identified the dead body. Therefore, we find it not safe to reply upon the evidence of PW-4 in regard to identification of the body. That apart it has come in evidence that in the complaint filed on 17.4.1993 before the Police Station it is mentioned that the height of the missing Chander Has was 5.7" while PW-7 the doctor who specifically measured the dead body has in unequivocal terms stated that the height or the length of the dead body was 5.10". This is also a material discrepancy that could be noticed in the identification of the dead body. From the discussion made herein above, we are of the opinion that the prosecution has failed to establish that the dead body found by the Police on 18.4.1993 was that of missing Chander Has. 14. Shri J.P. Dhanda, learned counsel for the State, after referring to the evidence of the prosecution, very vehemently contended that the prosecution has proved beyond reasonable doubt that the dead body was that of Chander Has and Chander Has was taken away by the appellants on 14.4.1993 and from the recovery made from the appellants, it is crystal clear that it is the appellants who committed the murder of the Chander Has. He further pointed out that this Court in an appeal ought not to interfere with the findings of fact concurrently arrived at by the courts below by re-appreciating the evidence on record. It is true normally this Court would not substitute its subjective opinion of the evidence with that of concurrent findings of the two courts below. However, having considered the findings of the courts below, we have noticed that the trial court, though by a lengthy judgment has found the appellants guilty, we have found that finding is not supported by the material on record. Therefore, we have considered the prosecution evidence independently and have disagreed with the same for reasons mentioned in this judgment. We have not done this by merely substituting our subjective satisfaction but we have done the same for reasons based on material on record. We have found that no reliance can be placed on the evidence of PWs. 2, 3 and 4 and the basis for the reasons given by us though available on record have not been considered by the trial court. So far as the High Court is concerned, we need not give any additional reasons for differing from the same because the impugned judgment of the High Court is only a summary of the judgment of the trial court.15. For the reasons stated above, we find that the prosecution case, which is purely based on circumstantial evidence, has not been established beyond all reasonable doubts. Once we discard the evidence of the prosecution in regard to its theory of "last seen together", identification of the dead body, and filing of the complaint on 17.4.1993, the links in the chain of circumstances get broken, hence, the chain of circumstances will not be complete. Then assuming for the sake of argument that the prosecution has been able to establish the recovery of the weapon, which in any case had no blood stains on it, and the motorcycle, by themselves would not complete that chain so as to be consistent with no other hypothesis, except the guilt of the accused. Therefore, we find it unsafe to rely upon the prosecution case.
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Police about the fact". This piece of her evidence runs counter to the evidence ofas noted already. The above evidence ofthe Investigating Officer as to the absence ofat the place where the dead body was found is also supported by the evidence of PWs. 3 and 4, who also did not state anything about the presence ofat the time and place where the dead body was found. As a matter of fact,Raghubir who is the uncle of the deceased specifically states thatwas not called to the place where the dead body was found. From the above evidence, it is clear thatfor reasons better known to her has chosen to give a palpably untrue version as to her going to the place where the dead body was found and identifying the same, then going to the police station and informing the same. Added to this we notice that there is a suggestion made to this witness by the defence, which of course, is denied bythat on 14.4.1993 she was not at home since she was attending to a very close friend of her husband who had undergone an eye operation in a nearby eye camp, therefore, she could not have seen, the going away of her husband with the appellants. From the above discussion of the evidence ofwe find thathas not come out with the true version of the case and the courts below have not examined these discrepancies, improvements and improbabilities in her evidence while accepting the same.It is the prosecution case that in regard to missing of Chander Has PWs 2 and 8 came to the Police Station at Sampla on 17.4.1993 at about 8 a.m. in the morning and lodged a missing persons complaint. The evidence has very strongly questioned this part of the prosecution case. In spite of the same the prosecution has failed to examine ASI Chand Mohammad who according to it had recorded the statements of PWs 2 and 89 and also entered the complaint in the daily register of the station. In our opinion, this entry has not been proved beyond reasonable doubt.has not stated anything about this fact in her evidence. PW.8 who is the other person who accompanied PW.2 to the Police Station on 17.4.1993 has not supported the prosecution case and he was treated as hostile andIn this background, the non examination of ASI Chand Mohammad creates considerable doubt as to the prosecution case. Therefore, we find it difficult to accept the prosecution case as to the complaint of 17.4.1993 which cannot befrom a total reading of the evidence of the doctor, it is clear that it was not possible for anybody to have identified the dead body from the ears and nose of the deceased because of the condition of decomposition. Therefore, what remains is only the clothes that was found on the dead body of the deceased. It is to be noted neitherin their evidence has stated what clothes Chander Has was wearing when he went with the appellants.has not given any reason for identifying the clothes of the deceased.who is also a relative of Chander Has has not identified the clothes of Chander Has. Therefore, identification of the dead body byby the clothes cannot be accepted. Here, we also notice even according tothe wife of Chander Has, viz.had not identified the dead body. Therefore, we find it not safe to reply upon the evidence ofin regard to identification of the body. That apart it has come in evidence that in the complaint filed on 17.4.1993 before the Police Station it is mentioned that the height of the missing Chander Has was 5.7" whilethe doctor who specifically measured the dead body has in unequivocal terms stated that the height or the length of the dead body was 5.10". This is also a material discrepancy that could be noticed in the identification of the dead body. From the discussion made herein above, we are of the opinion that the prosecution has failed to establish that the dead body found by the Police on 18.4.1993 was that of missing Chanderis true normally this Court would not substitute its subjective opinion of the evidence with that of concurrent findings of the two courts below. However, having considered the findings of the courts below, we have noticed that the trial court, though by a lengthy judgment has found the appellants guilty, we have found that finding is not supported by the material on record. Therefore, we have considered the prosecution evidence independently and have disagreed with the same for reasons mentioned in this judgment. We have not done this by merely substituting our subjective satisfaction but we have done the same for reasons based on material on record. We have found that no reliance can be placed on the evidence of PWs. 2, 3 and 4 and the basis for the reasons given by us though available on record have not been considered by the trial court. So far as the High Court is concerned, we need not give any additional reasons for differing from the same because the impugned judgment of the High Court is only a summary of the judgment of the trial court.15. For the reasons stated above,we find thatthe prosecution case, which is purely based on circumstantial evidence, has not been established beyond all reasonable doubts. Once we discard the evidence of the prosecution in regard to its theory of "last seen together", identification of the dead body, and filing of the complaint on 17.4.1993, the links in the chain of circumstances get broken, hence, the chain of circumstances will not be complete. Then assuming for the sake of argument that the prosecution has been able to establish the recovery of the weapon, which in any case had no blood stains on it, and the motorcycle, by themselves would not complete that chain so as to be consistent with no other hypothesis, except the guilt of the accused. Therefore, we find it unsafe to rely upon the prosecution case.
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M/S. Siemens Aktiengeselischaft & S.Ltd Vs. Dmrc Ltd. | upon the validity of the procedures adopted by the DMRC and the matter reached this Court. Continuance of the process of review even after the High Court had delivered its judgment amounted to subjecting the judicial pronouncement to an administrative review. There was no question of any such judicial determination or adjudication being subjected to any administrative review albeit in the name of a Committee constituted for the purpose. 28. Mr. Parasaran argued that the Committee’s proceedings did not amount to sitting in appeal over the judgment of the High Court. The Committee may have not said anything adverse to view taken by the High Court but if the Committee were to find fault with the evaluation process which the High Court has held to be valid it indirectly amounted to putting a question mark on the judgment of the High Court itself. Suffice it to say what the Government ought to have stayed its hands once the matter landed in the Court. Inasmuch as the Government did nothing of this kind, it did not act properly. Beyond that we do not consider it necessary or proper to say anything at this stage. 29. It was contended by Mr. Lalit that the report submitted by the Committee appointed by the Government ought to be taken as expert opinion on the subject and given due weight. That position was disputed by Mr. Andhyarujina appearing for DMRC and Mr. Venugopal appearing for HR. That the Committee comprised a former Finance Secretary to the Government of India and a Civil Engineer, none of whom could claim to be expert in the field relevant to the achievability of the GEC values, was not disputed by Mr. Parasaran who urged that the Committee may have taken the opinion of some experts on the subject. Even assuming that the Committee has taken expert advice regarding the tenability of the GEC values offered by HR, it would simply mean that there is a conflict between the views taken by the experts of DMRC and those consulted by the Committee. Any such conflict cannot be resolved by this Court in exercise of its powers of judicial review. So long as the view taken by the experts of the authority competent to take a final decision is a possible view the very fact that some other experts have expressed doubts about the sustainability of the GEC values will not be enough for us to declare that the values offered by HR are indeed unachievable. This Court has in Federation of Railway Officers Association v. Union of India (2003) 2 SCR 1085 , stated the wholesome principle applicable in such situations in the following words: “Further, when technical questions arise and experts in the field have expressed various views and all those aspects have been taken into consideration by the Government in deciding the matter, could it still be said that this Court should re-examine to interfere with the same. The wholesome rule in regard to judicial interference in administrative decisions is that if the Government takes into consideration all relevant factors, eschews from considering irrelevant factors and acts reasonably within the parameters of the law, courts would keep off the same.” 30. Reference may also be made to the decision of this Court in N.D. Jayal v. Union of India (2004) 9 SCC 362 where this Court observed: “This Court cannot sit in judgment over the cutting edge of scientific analysis relating to the safety of any project. Experts in science may themselves differ in their opinions while taking decisions on matters related to safety and allied aspects. The opposing viewpoints of the experts will also have to be given due consideration after full application of mind. When the Government or the authorities concerned after due consideration of all viewpoints and full application of mind took a decision, then it is not appropriate for the court to interfere.” 31. Reliance by the appellant upon the report of the Committee is misplaced also for the reason that the same was ex parte. It is common ground that HR was never associated with the process of evaluation or verification if any conducted by the Committee. In the absence of any such opportunity to the party whose GEC values were being test checked for their achievability, the report can hardly provide a sound basis for a writ court to upset a decision which the competent authority has taken after due deliberations by not one but four different Committees including experts in the field. That apart, Mr. Parasaran fairly submitted that even the Government have not accepted the report submitted by the Committee so far. He urged that since the matter was pending in this Court, the Government has simply placed the report of the Committee in a sealed cover for the Court to decide as to what value has to be attached to it. That being the position, the preparation and submission of a report that does not even take the view point of the party affected by it into consideration can hardly provide to this Court a good reason to scuttle the entire process at this stage when HR, the successful bidder, has already taken substantial steps in the direction of executing the works allotted to it.32. Last but not the least, if the note submitted by the Director in the MoUD is an indication of what the Committee may have said, the difference in the GEC values pointed out in the report of the Director, may have led to CAF which was also an eligible bidder emerging as L-1 and not the appellant. In terms of cost of the project it would hardly make a sizable difference so as to justify a reversal of the steps that have already been taken for execution of a project that is of utmost importance for the people living in the national capital execution whereof can brook no delay especially when the same is being financed by an agency from outside the country. 33. | 0[ds]23. The High Court has, in the case at hand, undertaken that exercise and concluded that there was neither any illegality nor any irregularity in the process of evaluation of the bids or the final allotment of the contract. That view has come to be assailed by the appellant on what is essentially a short point raised by Mr. Lalit in support of the appeal. The contention, as noticed earlier, is that while no malafide or extraneous considerations have prevailed to vitiate the decision of the DMRC allotting the contractin favour ofthe process of evaluation of the bids offered by the eligible bidders should have in the facts and circumstances of the case included validation of the GEC values offered by HR to determine whether they were achievable having regard to the ground realities and the laws of physics relevant to the consumption of energy. That contention does not suggest any illegality in the process of allotment of the contractin favour offor no violation of any law, rule or regulation governing the process of invitation of tenders by the DMRC or its evaluation and acceptance has been alleged or argued before us. No such statutory or other provision has been brought to our notice which could possibly provide to the appellant a reason to contend that the allotment of the contract was itself illegal or in breach of any such provision or procedure prescribed thereunder. It is nocase that the decision-making authority had not understood the law that regulates its decision making power or failed to give effect to it. We have, therefore, no hesitation in holding that the allotment of contract did not suffer from any illegality as it is understood in the matter of judicial review of administrative action and as that expression has been used by this Court in Tatacase (supra). It is also not the case of the petitioner that the decision taken by the DMRC is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind could have arrived at the same. Perversity or irrationality in the decision or the decision making process is also not a ground that can be invoked in the case athave, therefore, no hesitation in holding that the allotment of contract did not suffer from any illegality as it is understood in the matter of judicial review of administrative action and as that expression has been used by this Court in Tatae (supra). It is also not the case of the petitioner that the decision taken by the DMRC is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind could have arrived at the same. Perversity or irrationality in the decision or the decision making process is also not a ground that can be invoked in the case attherefore, do not see any real basis for the contention that the DMRC was supposed to go any further than it did in protecting its interest. In the absence of any specific stipulation or requirement for validation of the GEC values by the DMRC and its experts or by any outside agency such a requirement could not be implied into the tender process. Inasmuch as the DMRC found the bid offered by HR to be acceptable, keeping in view the GEC values offered by it, the former had committed no illegality in the evaluation of the bids or in making its choice of thedo not see any illegality or irregularity in the process of verification conducted by the DMRC to test the achievability of the GEC values. It is true that DMRC had conducted the simulation in regard to the GEC values offered by HR only but then in the absence of any condition in the tender notice requiring DMRC to conduct such verification even in regard to other GEC values, there was no need for it to undertake any such exercise. DMRC was, in our opinion, entitled to adopt such methods as were reasonable to satisfy itself above about the GEC values and their achievability offered by lowest tenderer in whose favour it was considering the award of the contract. The upshot of the above discussion, therefore, is that the process by which the bids were evaluated and eventually accepted was transparent, fair and reasonable and does not, therefore, call for any interference from thishave no hesitation in rejecting that submission. The Reference Order extracted above speaks for itself. It no where states that the Committee has to look at anything beyond the process of evaluation of tenders received by DMRC. It does not even remotely suggest that the Government is concerned about the procedures that may be followed in the future or anxious to devise transparent methods by which such contract should be allotted. What is notable is that thehands were not stayed by the Government even when the High Court had pronounced upon the validity of the procedures adopted by the DMRC and the matter reached this Court. Continuance of the process of review even after the High Court had delivered its judgment amounted to subjecting the judicial pronouncement to an administrative review. There was no question of any such judicial determination or adjudication being subjected to any administrative review albeit in the name of a Committee constituted for the purpose.Reliance by the appellant upon the report of the Committee is misplaced also for the reason that the same was ex parte. It is common ground that HR was never associated with the process of evaluation or verification if any conducted by the Committee. In the absence of any such opportunity to the party whose GEC values were being test checked for their achievability, the report can hardly provide a sound basis for a writ court to upset a decision which the competent authority has taken after due deliberations by not one but four different Committees including experts in the field. That apart, Mr. Parasaran fairly submitted that even the Government have not accepted the report submitted by the Committee so far. He urged that since the matter was pending in this Court, the Government has simply placed the report of the Committee in a sealed cover for the Court to decide as to what value has to be attached to it. That being the position, the preparation and submission of a report that does not even take the view point of the party affected by it into consideration can hardly provide to this Court a good reason to scuttle the entire process at this stage when HR, the successful bidder, has already taken substantial steps in the direction of executing the works allotted to it.32. Last but not the least, if the note submitted by the Director in the MoUD is an indication of what the Committee may have said, thethe GEC values pointed out in the report of the Director, may have led to CAF which was also an eligible bidder emerging as L-1 and not the appellant. In terms of cost of the project it would hardly make a sizable difference so as to justify a reversal of the steps that have already been taken for execution of a project that is of utmost importance for the people living in the national capital execution whereof can brook no delay especially when the same is being financed by an agency from outside the country. | 0 | 7,509 | 1,305 | ### Instruction:
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upon the validity of the procedures adopted by the DMRC and the matter reached this Court. Continuance of the process of review even after the High Court had delivered its judgment amounted to subjecting the judicial pronouncement to an administrative review. There was no question of any such judicial determination or adjudication being subjected to any administrative review albeit in the name of a Committee constituted for the purpose. 28. Mr. Parasaran argued that the Committee’s proceedings did not amount to sitting in appeal over the judgment of the High Court. The Committee may have not said anything adverse to view taken by the High Court but if the Committee were to find fault with the evaluation process which the High Court has held to be valid it indirectly amounted to putting a question mark on the judgment of the High Court itself. Suffice it to say what the Government ought to have stayed its hands once the matter landed in the Court. Inasmuch as the Government did nothing of this kind, it did not act properly. Beyond that we do not consider it necessary or proper to say anything at this stage. 29. It was contended by Mr. Lalit that the report submitted by the Committee appointed by the Government ought to be taken as expert opinion on the subject and given due weight. That position was disputed by Mr. Andhyarujina appearing for DMRC and Mr. Venugopal appearing for HR. That the Committee comprised a former Finance Secretary to the Government of India and a Civil Engineer, none of whom could claim to be expert in the field relevant to the achievability of the GEC values, was not disputed by Mr. Parasaran who urged that the Committee may have taken the opinion of some experts on the subject. Even assuming that the Committee has taken expert advice regarding the tenability of the GEC values offered by HR, it would simply mean that there is a conflict between the views taken by the experts of DMRC and those consulted by the Committee. Any such conflict cannot be resolved by this Court in exercise of its powers of judicial review. So long as the view taken by the experts of the authority competent to take a final decision is a possible view the very fact that some other experts have expressed doubts about the sustainability of the GEC values will not be enough for us to declare that the values offered by HR are indeed unachievable. This Court has in Federation of Railway Officers Association v. Union of India (2003) 2 SCR 1085 , stated the wholesome principle applicable in such situations in the following words: “Further, when technical questions arise and experts in the field have expressed various views and all those aspects have been taken into consideration by the Government in deciding the matter, could it still be said that this Court should re-examine to interfere with the same. The wholesome rule in regard to judicial interference in administrative decisions is that if the Government takes into consideration all relevant factors, eschews from considering irrelevant factors and acts reasonably within the parameters of the law, courts would keep off the same.” 30. Reference may also be made to the decision of this Court in N.D. Jayal v. Union of India (2004) 9 SCC 362 where this Court observed: “This Court cannot sit in judgment over the cutting edge of scientific analysis relating to the safety of any project. Experts in science may themselves differ in their opinions while taking decisions on matters related to safety and allied aspects. The opposing viewpoints of the experts will also have to be given due consideration after full application of mind. When the Government or the authorities concerned after due consideration of all viewpoints and full application of mind took a decision, then it is not appropriate for the court to interfere.” 31. Reliance by the appellant upon the report of the Committee is misplaced also for the reason that the same was ex parte. It is common ground that HR was never associated with the process of evaluation or verification if any conducted by the Committee. In the absence of any such opportunity to the party whose GEC values were being test checked for their achievability, the report can hardly provide a sound basis for a writ court to upset a decision which the competent authority has taken after due deliberations by not one but four different Committees including experts in the field. That apart, Mr. Parasaran fairly submitted that even the Government have not accepted the report submitted by the Committee so far. He urged that since the matter was pending in this Court, the Government has simply placed the report of the Committee in a sealed cover for the Court to decide as to what value has to be attached to it. That being the position, the preparation and submission of a report that does not even take the view point of the party affected by it into consideration can hardly provide to this Court a good reason to scuttle the entire process at this stage when HR, the successful bidder, has already taken substantial steps in the direction of executing the works allotted to it.32. Last but not the least, if the note submitted by the Director in the MoUD is an indication of what the Committee may have said, the difference in the GEC values pointed out in the report of the Director, may have led to CAF which was also an eligible bidder emerging as L-1 and not the appellant. In terms of cost of the project it would hardly make a sizable difference so as to justify a reversal of the steps that have already been taken for execution of a project that is of utmost importance for the people living in the national capital execution whereof can brook no delay especially when the same is being financed by an agency from outside the country. 33.
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that the decision-making authority had not understood the law that regulates its decision making power or failed to give effect to it. We have, therefore, no hesitation in holding that the allotment of contract did not suffer from any illegality as it is understood in the matter of judicial review of administrative action and as that expression has been used by this Court in Tatacase (supra). It is also not the case of the petitioner that the decision taken by the DMRC is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind could have arrived at the same. Perversity or irrationality in the decision or the decision making process is also not a ground that can be invoked in the case athave, therefore, no hesitation in holding that the allotment of contract did not suffer from any illegality as it is understood in the matter of judicial review of administrative action and as that expression has been used by this Court in Tatae (supra). It is also not the case of the petitioner that the decision taken by the DMRC is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind could have arrived at the same. Perversity or irrationality in the decision or the decision making process is also not a ground that can be invoked in the case attherefore, do not see any real basis for the contention that the DMRC was supposed to go any further than it did in protecting its interest. In the absence of any specific stipulation or requirement for validation of the GEC values by the DMRC and its experts or by any outside agency such a requirement could not be implied into the tender process. Inasmuch as the DMRC found the bid offered by HR to be acceptable, keeping in view the GEC values offered by it, the former had committed no illegality in the evaluation of the bids or in making its choice of thedo not see any illegality or irregularity in the process of verification conducted by the DMRC to test the achievability of the GEC values. It is true that DMRC had conducted the simulation in regard to the GEC values offered by HR only but then in the absence of any condition in the tender notice requiring DMRC to conduct such verification even in regard to other GEC values, there was no need for it to undertake any such exercise. DMRC was, in our opinion, entitled to adopt such methods as were reasonable to satisfy itself above about the GEC values and their achievability offered by lowest tenderer in whose favour it was considering the award of the contract. The upshot of the above discussion, therefore, is that the process by which the bids were evaluated and eventually accepted was transparent, fair and reasonable and does not, therefore, call for any interference from thishave no hesitation in rejecting that submission. The Reference Order extracted above speaks for itself. It no where states that the Committee has to look at anything beyond the process of evaluation of tenders received by DMRC. It does not even remotely suggest that the Government is concerned about the procedures that may be followed in the future or anxious to devise transparent methods by which such contract should be allotted. What is notable is that thehands were not stayed by the Government even when the High Court had pronounced upon the validity of the procedures adopted by the DMRC and the matter reached this Court. Continuance of the process of review even after the High Court had delivered its judgment amounted to subjecting the judicial pronouncement to an administrative review. There was no question of any such judicial determination or adjudication being subjected to any administrative review albeit in the name of a Committee constituted for the purpose.Reliance by the appellant upon the report of the Committee is misplaced also for the reason that the same was ex parte. It is common ground that HR was never associated with the process of evaluation or verification if any conducted by the Committee. In the absence of any such opportunity to the party whose GEC values were being test checked for their achievability, the report can hardly provide a sound basis for a writ court to upset a decision which the competent authority has taken after due deliberations by not one but four different Committees including experts in the field. That apart, Mr. Parasaran fairly submitted that even the Government have not accepted the report submitted by the Committee so far. He urged that since the matter was pending in this Court, the Government has simply placed the report of the Committee in a sealed cover for the Court to decide as to what value has to be attached to it. That being the position, the preparation and submission of a report that does not even take the view point of the party affected by it into consideration can hardly provide to this Court a good reason to scuttle the entire process at this stage when HR, the successful bidder, has already taken substantial steps in the direction of executing the works allotted to it.32. Last but not the least, if the note submitted by the Director in the MoUD is an indication of what the Committee may have said, thethe GEC values pointed out in the report of the Director, may have led to CAF which was also an eligible bidder emerging as L-1 and not the appellant. In terms of cost of the project it would hardly make a sizable difference so as to justify a reversal of the steps that have already been taken for execution of a project that is of utmost importance for the people living in the national capital execution whereof can brook no delay especially when the same is being financed by an agency from outside the country.
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Reliance Energy Limited Vs. Maharashtra State Road Devt.Corp.Ld.&Ors | current operating assets and liabilities. (See Stage II).Depreciation: This item of expense reduces the profit since it is a charge made against revenue for the use of tangible fixed assets. The likely journal entry to record the depreciation expense is:(i) Depreciation Account Dr.To Provision for Depreciation Account(or Accumulated Depreciation)AlternativelyDepreciation Account Dr.To Fixed Asset AccountIn either case the depreciation account would be closed be transfer to Profit and Loss Account. The net affect would be:EitherProfit and Loss Account Dr.To Provision for Depreciation AccountOrProfit and Loss Account Dr.To Fixed Asset AccountIt is clear that cash is not affected in the above journal entries. The depreciation does not require any expenditure in cash. Thus, the amount of depreciation charge must be added to be reported net income in order to arrive at the total increase in cash provided from the operations.Amortization of intangibles-goodwill, patents, etc.: The amortization of (i.e., writing off) goodwill, trade marks, patents copyrights, etc., has the same effect as the depreciation expense. The amount of amortization reduces the profit but does not involve any flow of cash as is evident from the following entry:Profit and Loss Account Dr.To Goodwill etc. AccountThere is no change in cash. Thus amount of intangibles so written off must also be added back to the reported net profit (income).”“12.20.Stage-2 : Adjustments in respect of current assets and current liabilities : The adjustments made in the net profit (income) figure as per profit and loss account as outlined in Stage-I above, gives As Operating Profit before Working Capital Changes. Several other adjustments are made in respect of current (Operating) assets (e.g., debtors, bills receivable, inventories, prepayments etc.) and current (Operating) liabilities (e.g., creditors bills payable, outstanding liabilities etc.) to obtain the final net cash from operating activities. There is an intimate relationship between the revenue and expense items of income statement and current assets and current liabilities items of the balance sheet. Since the income statement is prepared on the accrual basis, the resultant net income figure is affected by cash and non-cash items. But the net income on a cash basis considers only cash receipts as revenue and subtracts from cash receipts only cash spent for purchase of goods or raw materials) and expenses.The following general rules, as an aid to analysis of current assets and current liabilities affecting cash, may be noted :(i) An increase in an item of current asset causes a decrease in cash inflow because cash is blocked in current assets.(ii) A decrease in an item of current asset causes an increase in cash inflow because cash is released from the sale or recovery from current asset.(iii) An increase in an item of current liability causes a decrease in cash outflow because cash is saved.(iv) A decrease in an item of current liability causes increases in cash outflow because of payment of liability.Some of the adjustments are discussed below:(i) Debtors and Bills Receivable (Credit Sales) : It needs no explanation that the major source of cash from operations is cash sales. But it is not uncommon to find a significant amount of credit sales in the form of debtors and bills receivable representing current assets. This indicates that the sales were made both for cash and credit. Consequently the net income (or profit) figure does not disclose the cash from operations. The following adjustment, however, enables to overcome this difficulty:Cash from Operations = Operating Profit before Working Capital Changes + Net Decrease in Debtors and Bills Receivable.”(Emphasis supplied) 35. Taking into account the above principles, it is clear that there are two methods of “cash flow reporting” i.e. direct and indirect. Both give identical results in the matter of the final total. They differ only in presentation of the data. They differ only in presentation of the data contained in the cash flows from operational activities. No reason has been given by the Consultants of MSRDC for rejecting the indirect method invoked by KPMG, Chartered Accountants of REL/HDEC in their letter dated 12.8.2005. The said method is known as “reconciliation method”. In this case, as stated above, the only reason given by the Consultants of MSRDC to exclude REL/HDEC was the negative impact on the future cash flows on account of the provisioning for doubtful debts in the accounts of HDEC for the FY 2001. If future cash impact was the basis to exclude REL/HDEC, then the Consultants for MSRDC should have considered cash flow reporting methods, which includes Reconciliation Method. There is no question of difference of opinion or different views as far as the application of cash flow reporting, which also falls in AS 3. There is nothing to show whether indirect method has at all been considered by Crisil, particularly when KPMG had invoked that method. There is no reason given for rejecting it. Lastly, in the PQ document, the referral years were three years. The criteria was that there should be NCP of not less than Rs.200 crores. However, the opinion of the Consultants proceeds on the basis that if “add back” is allowed it may have future cash impact. In the evaluation process, the Consultants were entitled to take into account future cash impact but in order to do so they had to say why the indirect method of “cash flow reporting” should not be accepted and if at all the impact of the provisioning was to be seen then there was no reason for not examining the audited accounts of 2004. There is a mix-up of two concepts here. The concept of non-compliance of financial criteria and the impact in future years on cash flow. As stated above, the very purpose of “cash flow reporting” is to find out the ability of HDEC to generate cash flow in future and if an important method of cash flow reporting is kept out, without any reason, then the decision to exclude REL/HDEC, is arbitrary, whimsical and unreasonable. In our view, for non-consideration of the Reconciliation Method, under cash flow reporting system, the impugned decision-making process stood vitiated. | 1[ds]At this stage, we need to clarify that HDEC had undertaken construction contracts in Iraq. That, large receivables had arisen prior to 1999 on account of war in Iraq. The Iraq contract receivables had nothing whatsoever to do with the three accounting years 2001, 2002 and 2003, therefore, there were no Iraq contract receivables nor was there anyas and by way of bad debt in any of the above three accounting years. Further, according to REL/HDEC, HDEC had incurredng to US $ 686.310 million in 2001, US $ 200.753 million in 2002 and US $ 199.084 million in 2003 which did not involve direct cash outflow and, therefore, the saidht to have been added back to NCP and if so added then the Consortium had NCP of Rs.2,000 million (Rs.200 crores) as mentioned in Clause 7.2.2.On 22.8.2005, a committee by the nameas constituted by MSRDC to review the draft evaluation report submitted by the consultants, M/s. Jean Muller Consortium, relating toof bidders to suggest process of evaluation and to provide recommendations to MSRDC. The said Committee met on 21.9.2005. The consultants M/s. Jean Muller Consortium and M/s. Crisil were both called to give clarifications. The said Committee was headed by Mr. Justice R.J. Kochar, Judge of Bombay High Court (retired), Shri A.K. Banerjee (Technical Member) in NHAI, Mr. R.S. Agarwal, Executive Director of IDBI (retired), Mr. V. Giriraj, Joint Managing Director of MSRDC etc. The Committee noted thatbids were received only from six Applicants, one of them was REL/HDEC. The Committee noted that while Indian companies could submit their audited accounts up to 31.3.2004 as their FY ended on 31st March the foreign companies could submit their audited accounts only up to 31.12.2003 as their FY ended on 31st December. The Committee further observed that although thedate was 10.1.2005, clarifications onsh expenses were sought from REL/HDEC up to 22.8.2005 and since in the mean time audited accounting statements were furnished by HDEC up to 31.12.2004, the same could be considered for evaluation. The Peer Committee did not agree with the opinion expressed bys that the loss incurred by HDEC for the financial year ending 31.12.2001 would have a cash impact in future. At this stage, we may reiterate that even according to the Consultants of MSRDC,provision for baddebt may not involve cash outflow in the year of incidence but it would have cash impact at a future date and, therefore, out of abundant caution they decided to exclude REL/HDEC. However, the Peer Committee did not concur with this accounting interpretation. According to the Peer Committee the majorprovision for baddebt was in the accounts for the year 2001 and it related to receivables from their contract in Iraq affected by war and since it was only aprovision for baddebt and not athe Committee came to the conclusion that there would be no cash impact in future. The Committee took the view that even without taking into account the audited accounts for the year 2004, REL/HDEC fulfilled the financial criteria in Clause 7.2.2. Accordingly, the Peer Committee opined that REL/HDEC should not be excluded from the second stage of the bidding process. At this stage, it may be noted that after receipt of the said report, made by the Peer Committee dated 1.10.2005, MSRDC placed the report of the Peer Committee before their Consultants. Needless to add that the Consultants of MSRDC retained their original position, namely, that since the audited accounts for the year ending 31.12.2004 could not have been submitted after 10.1.2005, the said accounts of HDEC could not have been taken into account as it would violate the tender conditions and, therefore, REL/HDEC should be excluded from the second stage of the bidding process.We find merit in this civil appeal. Standards applied by Courts in judicial review must be justified by constitutional principles which govern the proper exercise of public power in a democracy. Article 14 of the Constitution embodies the principle ofHowever, it is not aprovision. It has to be read in conjunction with rights conferred by other Articles like Article 21 of the Constitution. The said Article 21 refers toIt includesIn our view, as held in the latest judgment of the Constitution Bench ofin the case of I.R. Coelho (Dead) by Lrs. v. State of Tamil Nadu & Ors., I (2007) SLT 696=(2007) 2 SCC 1 , Article 21/14 is the heart of the chapter on fundamental rights. It covers various aspects of life.is an important concept while construing Article 19(1)(g) of the Constitution. It is this doctrine which is invoked by REL/HDEC in the present case. When Article 19(1)(g) confers fundamental right to carry on business to a company, it is entitled to invoke the said doctrine ofWe may clarify that this doctrine is, however, subject to public interest. In the world of globalization, competition is an important factor to be kept in mind. The doctrine ofis an important doctrine which is embodied in Article 19(1)(g) of the Constitution. This is because the said doctrine provides space within whichcompetitors are allowed to bid so as to subserve the larger public interest.in essence, is liberalization of trade. Today India has dismantledThe economic reforms introduced after 1992 have brought in the concept ofDecisions or acts which results in unequal and discriminatory treatment, would violate the doctrine ofembodied in Article 19(1)(g). Time has come, therefore, to say that Article 14 which refers to the principle ofshould not be read as a stand alone item but it should be read in conjunction with Article 21 which embodies several aspects of life. There is one more aspect which needs to be mentioned in the matter of implementation of the aforestated doctrine ofAccording to Lord Goldsmith — commitment tois the heart of parliamentary democracy. One of the important elements of theis legal certainty. Article 14 applies to Government policies and if the policy or act of the Government, even in contractual matters, fails to satisfy the test ofthen such an act or decision would be unconstitutional.is a matter of estimation. ASs are policy documents. Accounting interpretation depends on application of several ASs simultaneously. The concept ofis not restricted only to AS 26. Similarly, the concept ofis not restricted to AS 3. Therefore, different methods are prescribed for estimating net profits and/or net cash profits. There are no two views on this point. Provisioning for doubtful debts cannot be equated toIn the case of provisioning there is no. This proposition is undisputed. What is being argued is that once there isdoes not get routed through the P&L account and, therefore, there will be cash impact in future. This argument amounts to begging the question. If this argument is to be accepted then we are obliterating the difference betweenThe question ofin future is a separate question. It has to be answered in terms ofwhich falls in AS 3 which has been invoked by the chartered accountants of REL/HDEC.Applying the tests laid down in the aforesaid two judgments [Jwala Prasad (supra) and Metal Box (supra)] it is clear that the concept ofis different from the concept ofThe effect of the two is quite different. Provisions made against anticipated losses are charges against profits and, therefore, to be taken into account against gross receipts in the P&L account and there usually shown in theby way of deduction from the assets whereasare shown as part of the interest of the proprietor. In the present case, there is no dispute regarding the aforestated concepts. However, according to the consultants for MSRDC though provision for doubtful debt is aexpense it has to be treated as a cash expense because once a provisionhas been made, thecannot be routed through P&L account and, therefore, what is conceptually aexpense is being treated as a cash expense. As stated above, this is begging the question. If the aforestated argument is to be accepted it would obliterate the conceptual difference betweenThe above reasoning shows that the only reason for excluding REL/HDEC is the future cash impact of the provision made in the accounts of HDEC for the FY 2001. This aspect has been discussed by us in the following paragraphs.32.On the second question of future cash impact it may be reiterated that KPMG, the chartered accountants for REL/HDEC has invoked the principle ofwhich also finds place in AS 3.According to the said principle ofwhen P&L accounts andare prepared on accrual basis, revenues and expenses are recognized on accrual basis, i.e., when the transaction or event occurs. However, timing of cash flow is not reckoned in such system of accounting. Similarly, in cases where accounts are based on accrual system of accounting, recognition of assets and liabilities is not dependent on the actual timing of cash spent on capital expenditure and cash inflow on account of capital receipt. Thus the financial statements prepared on accrual basis do not reflect the timing of the cash flow and amount of cash flow. The object of the cash flow statement is to assess theability to generate the cash flow in future and to assess reasons for difference betweent cashing cashcan be derived by eitherin which cash items of cash inflow are listed like cash received from customers, payment of interest etc. asws like payment to supplier, payment for taxes etc. or bych is also known asin which theis derived by adding to the net profititems like provision for taxes, provision for doubtful debts, loss on sale of fixed assets and investments, depreciation, amortization of intangibles etc. because these items do not. Similarly, profit on the sale of fixed assets and investments are deducted from the net income figure as these items also do not. Similarly, adjustments in respect of current assets and liabilities are also required to make to net income (loss) figure to arrives. Both the methods give the same results in respect of the finalof the major items of information in the cash flow statement is theow provided by (or used in) operating activities. In fact it is the regular source of cash in any enterprise that determines whether or not an enterprise will continue to exist in the long run. The logic for determining theflow from operating activities is to understand why net profit (loss) as reported in the profit and loss account must be converted. As we know that financial statements are generally prepared on accrual basis of accounting which requires that revenues be recorded when earned and the expenses be recorded when incurred. Earned revenues more often include credit sales that have not been collected in cash and expenses incurred that may not have been paid in cash during the accounting period. Thus under accrual basis of accounting net income will not indicate thecash provided byoperating activities or net loss will not indicate theed in operating activities. In order to calculate thecash provided by(or used in) operating activities, it is necessary to replace revenues and expenses on accrual basis with actual receipts and actual payments in cash. This is done by eliminating theash expenses from the given earned revenues and incurred expenses in the profit and loss account. In addition to regularash expense items, the profit and loss account is also debited and credited with purelyitems which reduce and increase the profits respectively but do not affect the cash at all e.g. depreciation, loss (or profit) on the sale of fixed assets, amortization of intangible assets like goodwill, patents trademarks etc. deferred revenue expenditures like preliminary expenses, discount on the issue of shares and debentures and so on. Sincecash provided byoperations is to be calculated, certainitems like rent income, interest income, dividend income, refund of tax etc. should also be adjusted although these items may have been recorded on cash basis. Such items are analysed separately in the cash flow statement as operating, investing and investing activities.Taking into account the above principles, it is clear that there are two methods ofi.e. direct and indirect. Both give identical results in the matter of the final total. They differ only in presentation of the data. They differ only in presentation of the data contained in the cash flows from operational activities. No reason has been given by the Consultants of MSRDC for rejecting the indirect method invoked by KPMG, Chartered Accountants of REL/HDEC in their letter dated 12.8.2005. The said method is known as. In this case, as stated above, the only reason given by the Consultants of MSRDC to exclude REL/HDEC was the negative impact on the future cash flows on account of the provisioning for doubtful debts in the accounts of HDEC for the FY 2001. If future cash impact was the basis to exclude REL/HDEC, then the Consultants for MSRDC should have considered cash flow reporting methods, which includes Reconciliation Method. There is no question of difference of opinion or different views as far as the application of cash flow reporting, which also falls in AS 3. There is nothing to show whether indirect method has at all been considered by Crisil, particularly when KPMG had invoked that method. There is no reason given for rejecting it. Lastly, in the PQ document, the referral years were three years. The criteria was that there should be NCP of not less than Rs.200 crores. However, the opinion of the Consultants proceeds on the basis that ifis allowed it may have future cash impact. In the evaluation process, the Consultants were entitled to take into account future cash impact but in order to do so they had to say why the indirect method ofshould not be accepted and if at all the impact of the provisioning was to be seen then there was no reason for not examining the audited accounts of 2004. There is aof two concepts here. The concept ofof financial criteria and the impact in future years on cash flow. As stated above, the very purpose ofis to find out the ability of HDEC to generate cash flow in future and if an important method of cash flow reporting is kept out, without any reason, then the decision to exclude REL/HDEC, is arbitrary, whimsical and unreasonable. In our view, forof the Reconciliation Method, under cash flow reporting system, the impugnedprocess stood vitiated. | 1 | 12,145 | 2,628 | ### 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:
current operating assets and liabilities. (See Stage II).Depreciation: This item of expense reduces the profit since it is a charge made against revenue for the use of tangible fixed assets. The likely journal entry to record the depreciation expense is:(i) Depreciation Account Dr.To Provision for Depreciation Account(or Accumulated Depreciation)AlternativelyDepreciation Account Dr.To Fixed Asset AccountIn either case the depreciation account would be closed be transfer to Profit and Loss Account. The net affect would be:EitherProfit and Loss Account Dr.To Provision for Depreciation AccountOrProfit and Loss Account Dr.To Fixed Asset AccountIt is clear that cash is not affected in the above journal entries. The depreciation does not require any expenditure in cash. Thus, the amount of depreciation charge must be added to be reported net income in order to arrive at the total increase in cash provided from the operations.Amortization of intangibles-goodwill, patents, etc.: The amortization of (i.e., writing off) goodwill, trade marks, patents copyrights, etc., has the same effect as the depreciation expense. The amount of amortization reduces the profit but does not involve any flow of cash as is evident from the following entry:Profit and Loss Account Dr.To Goodwill etc. AccountThere is no change in cash. Thus amount of intangibles so written off must also be added back to the reported net profit (income).”“12.20.Stage-2 : Adjustments in respect of current assets and current liabilities : The adjustments made in the net profit (income) figure as per profit and loss account as outlined in Stage-I above, gives As Operating Profit before Working Capital Changes. Several other adjustments are made in respect of current (Operating) assets (e.g., debtors, bills receivable, inventories, prepayments etc.) and current (Operating) liabilities (e.g., creditors bills payable, outstanding liabilities etc.) to obtain the final net cash from operating activities. There is an intimate relationship between the revenue and expense items of income statement and current assets and current liabilities items of the balance sheet. Since the income statement is prepared on the accrual basis, the resultant net income figure is affected by cash and non-cash items. But the net income on a cash basis considers only cash receipts as revenue and subtracts from cash receipts only cash spent for purchase of goods or raw materials) and expenses.The following general rules, as an aid to analysis of current assets and current liabilities affecting cash, may be noted :(i) An increase in an item of current asset causes a decrease in cash inflow because cash is blocked in current assets.(ii) A decrease in an item of current asset causes an increase in cash inflow because cash is released from the sale or recovery from current asset.(iii) An increase in an item of current liability causes a decrease in cash outflow because cash is saved.(iv) A decrease in an item of current liability causes increases in cash outflow because of payment of liability.Some of the adjustments are discussed below:(i) Debtors and Bills Receivable (Credit Sales) : It needs no explanation that the major source of cash from operations is cash sales. But it is not uncommon to find a significant amount of credit sales in the form of debtors and bills receivable representing current assets. This indicates that the sales were made both for cash and credit. Consequently the net income (or profit) figure does not disclose the cash from operations. The following adjustment, however, enables to overcome this difficulty:Cash from Operations = Operating Profit before Working Capital Changes + Net Decrease in Debtors and Bills Receivable.”(Emphasis supplied) 35. Taking into account the above principles, it is clear that there are two methods of “cash flow reporting” i.e. direct and indirect. Both give identical results in the matter of the final total. They differ only in presentation of the data. They differ only in presentation of the data contained in the cash flows from operational activities. No reason has been given by the Consultants of MSRDC for rejecting the indirect method invoked by KPMG, Chartered Accountants of REL/HDEC in their letter dated 12.8.2005. The said method is known as “reconciliation method”. In this case, as stated above, the only reason given by the Consultants of MSRDC to exclude REL/HDEC was the negative impact on the future cash flows on account of the provisioning for doubtful debts in the accounts of HDEC for the FY 2001. If future cash impact was the basis to exclude REL/HDEC, then the Consultants for MSRDC should have considered cash flow reporting methods, which includes Reconciliation Method. There is no question of difference of opinion or different views as far as the application of cash flow reporting, which also falls in AS 3. There is nothing to show whether indirect method has at all been considered by Crisil, particularly when KPMG had invoked that method. There is no reason given for rejecting it. Lastly, in the PQ document, the referral years were three years. The criteria was that there should be NCP of not less than Rs.200 crores. However, the opinion of the Consultants proceeds on the basis that if “add back” is allowed it may have future cash impact. In the evaluation process, the Consultants were entitled to take into account future cash impact but in order to do so they had to say why the indirect method of “cash flow reporting” should not be accepted and if at all the impact of the provisioning was to be seen then there was no reason for not examining the audited accounts of 2004. There is a mix-up of two concepts here. The concept of non-compliance of financial criteria and the impact in future years on cash flow. As stated above, the very purpose of “cash flow reporting” is to find out the ability of HDEC to generate cash flow in future and if an important method of cash flow reporting is kept out, without any reason, then the decision to exclude REL/HDEC, is arbitrary, whimsical and unreasonable. In our view, for non-consideration of the Reconciliation Method, under cash flow reporting system, the impugned decision-making process stood vitiated.
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### Explanation:
future cash impact it may be reiterated that KPMG, the chartered accountants for REL/HDEC has invoked the principle ofwhich also finds place in AS 3.According to the said principle ofwhen P&L accounts andare prepared on accrual basis, revenues and expenses are recognized on accrual basis, i.e., when the transaction or event occurs. However, timing of cash flow is not reckoned in such system of accounting. Similarly, in cases where accounts are based on accrual system of accounting, recognition of assets and liabilities is not dependent on the actual timing of cash spent on capital expenditure and cash inflow on account of capital receipt. Thus the financial statements prepared on accrual basis do not reflect the timing of the cash flow and amount of cash flow. The object of the cash flow statement is to assess theability to generate the cash flow in future and to assess reasons for difference betweent cashing cashcan be derived by eitherin which cash items of cash inflow are listed like cash received from customers, payment of interest etc. asws like payment to supplier, payment for taxes etc. or bych is also known asin which theis derived by adding to the net profititems like provision for taxes, provision for doubtful debts, loss on sale of fixed assets and investments, depreciation, amortization of intangibles etc. because these items do not. Similarly, profit on the sale of fixed assets and investments are deducted from the net income figure as these items also do not. Similarly, adjustments in respect of current assets and liabilities are also required to make to net income (loss) figure to arrives. Both the methods give the same results in respect of the finalof the major items of information in the cash flow statement is theow provided by (or used in) operating activities. In fact it is the regular source of cash in any enterprise that determines whether or not an enterprise will continue to exist in the long run. The logic for determining theflow from operating activities is to understand why net profit (loss) as reported in the profit and loss account must be converted. As we know that financial statements are generally prepared on accrual basis of accounting which requires that revenues be recorded when earned and the expenses be recorded when incurred. Earned revenues more often include credit sales that have not been collected in cash and expenses incurred that may not have been paid in cash during the accounting period. Thus under accrual basis of accounting net income will not indicate thecash provided byoperating activities or net loss will not indicate theed in operating activities. In order to calculate thecash provided by(or used in) operating activities, it is necessary to replace revenues and expenses on accrual basis with actual receipts and actual payments in cash. This is done by eliminating theash expenses from the given earned revenues and incurred expenses in the profit and loss account. In addition to regularash expense items, the profit and loss account is also debited and credited with purelyitems which reduce and increase the profits respectively but do not affect the cash at all e.g. depreciation, loss (or profit) on the sale of fixed assets, amortization of intangible assets like goodwill, patents trademarks etc. deferred revenue expenditures like preliminary expenses, discount on the issue of shares and debentures and so on. Sincecash provided byoperations is to be calculated, certainitems like rent income, interest income, dividend income, refund of tax etc. should also be adjusted although these items may have been recorded on cash basis. Such items are analysed separately in the cash flow statement as operating, investing and investing activities.Taking into account the above principles, it is clear that there are two methods ofi.e. direct and indirect. Both give identical results in the matter of the final total. They differ only in presentation of the data. They differ only in presentation of the data contained in the cash flows from operational activities. No reason has been given by the Consultants of MSRDC for rejecting the indirect method invoked by KPMG, Chartered Accountants of REL/HDEC in their letter dated 12.8.2005. The said method is known as. In this case, as stated above, the only reason given by the Consultants of MSRDC to exclude REL/HDEC was the negative impact on the future cash flows on account of the provisioning for doubtful debts in the accounts of HDEC for the FY 2001. If future cash impact was the basis to exclude REL/HDEC, then the Consultants for MSRDC should have considered cash flow reporting methods, which includes Reconciliation Method. There is no question of difference of opinion or different views as far as the application of cash flow reporting, which also falls in AS 3. There is nothing to show whether indirect method has at all been considered by Crisil, particularly when KPMG had invoked that method. There is no reason given for rejecting it. Lastly, in the PQ document, the referral years were three years. The criteria was that there should be NCP of not less than Rs.200 crores. However, the opinion of the Consultants proceeds on the basis that ifis allowed it may have future cash impact. In the evaluation process, the Consultants were entitled to take into account future cash impact but in order to do so they had to say why the indirect method ofshould not be accepted and if at all the impact of the provisioning was to be seen then there was no reason for not examining the audited accounts of 2004. There is aof two concepts here. The concept ofof financial criteria and the impact in future years on cash flow. As stated above, the very purpose ofis to find out the ability of HDEC to generate cash flow in future and if an important method of cash flow reporting is kept out, without any reason, then the decision to exclude REL/HDEC, is arbitrary, whimsical and unreasonable. In our view, forof the Reconciliation Method, under cash flow reporting system, the impugnedprocess stood vitiated.
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Sentinel Rolling Shutters and Engineering Company Ltd Vs. The Commissioner of Sales Tax | being. The manufacturer would undoubtedly be the owner or the component parts when he fabricates them, but at no stages does he become the owner or the rolling shutter as a unit so as to transfer the property in it to the customer. The rolling shutter comes into existence as a unit when the component parts are fixed in position on the premises and it becomes the property of the customer as soon as it comes into being. There is no transfer of property in the rolling shutter by the manufacturer to the customer as a chattel. It is essentially a transaction for fabricating component parts and fixing them on the premises so as to constitute a rolling shutter. The contract is thus clearly and indisputably a contract for work and labour and not a contract for sale.The revenue leaned heavily on the provision in the contract that the delivery of the goods shall be ex works and once the delivery of the goods is effected, no claim for rejection shall be entertained and relying on this provision, the revenue contended that under the contract the rolling shutters were to be delivered by the assessee to the company ex works, that is, at the works of the assessee and the property in the rolling shutters passed to the company as soon as they were delivered and hence it was a contract for sale. We do not think this contention of the revenue has any force and it must be rejected. It is clear from the above discussion that a rolling shutter as a complete unit is not fabricated by the manufacturer in his factory but he manufactures only the component parts and it is only when the component parts are fitted into position and fixed on the premises that a rolling shutter comes into being as a commercial article and, therefore, when the contract provides that the delivery of the goods shall be ex works, what is obviously meant is that the component parts shall be delivered to the company at the works of the assessee and once they are delivered, they shall not be liable to be rejected by the company. But that does not mean that as soon as the component parts are delivered to the company, the contract is fully executed. The component parts do not constitute a rolling shutter and it is the obligation of the assessee under the contract to fix the component parts in position on the premises and erect and install a rolling shutter. The execution of the contract is not completed until the assessee carries out this obligation imposed upon it under the contract and a rolling shutter is erected and installed at the premises. It is true that clause 12 of the printed terms and conditions provides that 50 per cent of the amount under the contract shall be paid as advance and the balance against delivery of the goods ex works, but this clause is clearly overridden by the special terms specifically written out in the contract that 25 per cent of the amount shall be paid by way of advance, 65 per cent against delivery and the remaining 10 per cent after completion of erection and handing over of the rolling shutters to the satisfaction of the company. This provision undoubtedly stipulates that 90 per cent of the amount due under the contract would be paid before erection and installation of the rolling shutters has commenced, but that would not make it a contract for sale of rolling shutters. The true nature of the contract cannot depend on the mode of payment of the amount provided in the contract. The parties may provide by mutual agreement that the amount stipulated in the contract may be paid at different stages of the execution of the contract, but that cannot make the contract one for sale of goods if it is otherwise a contract for work and labour. It may be noted that the contract in State of Madras v. Richardson & Cruddas Ltd. ([1968] 21 S.T.C. 245 (S.C.)). contained a provision that the full amount due under the contract shall be paid in advance even before the execution of the work has started and yet the Madras High Court held, and that view was affirmed by this Court, that the contract was a works contract. The payment of the amount due under the contract may be spread over the entire period of the execution of the contract with a view either to put the manufacturer or contractor in possession of funds for the execution of the contract or to secure him against any risk of non-payment by the customer. That cannot have any bearing on the determination of the question whether the contract is one for sale or for work and labour.Here the last portion of the special term in regard to payment of the amount due under the contract also makes it clear that it is only when the component parts are fitted into position in the premises that a rolling shutter would be complete and this rolling shutter has to be to the satisfaction of the company and it is then to be handed over by the assessee to the company and then, and then alone, would the remaining 10 per cent be payable by the company to the assessee. It is, therefore, clear that the contract is one single and indivisible contract and the erection and installation of the rolling shutter is as much a fundamental part of the contract as the fabrication and supply. We must, in the circumstances, hold, driven by the compulsion of this logic, that the contract was a contract for work and labour and not a contract for sale. This view which we are taking is completely supported by the decision of this Court in Vanguard Rolling Shutters & Steel Works v. Commissioner of Sales Tax, U.P. ([1977] 39 S.T.C. 372 (S.C.)), to which one of us (Bhagwati, J.) was a party.10. | 1[ds]This has always been a difficult question, because most of the cases which come before the courts arecases and the decisions given by courts are by no means uniform. But so far as the present case is concerned, it does not present any serious difficulty and is comparatively free from complexity or doubt, for there is a decision of this Court which is directly applicable and is determinative of the controversy between thedifficulty, however, lies not in the formulation of the tests for determining when a contract can be said to be a contract for sale or a contract for work and labour, but in the application of the tests to the facts of the case before the court. The distinction between a contract for sale and a contract for work and labour has been pointed out by this Court in a number of decisions and some tests have also been indicated by this Court, but it is necessary to point out that these tests are not exhaustive and do not lay down any rigid or inflexible rule applicable alike to all transactions. They do not give any magic formula by the application of which we can say in every case whether a contract is a contract for sale or a contract for work and labour. They merely focus on one or the other aspect of the transaction and afford some guidance in determining the question, but basically and primarily, whether particular contract is one for sale of goods or for work and labour depends upon the main object of the parties gathered from the terms of the contract, the circumstances of the transaction and the custom of the trade.It may be pointed out that a contract where not only work is to done but the execution of such work requires goods to be used may take one of three forms. The contract may be for work to be done for remuneration and for supply of materials used in the execution of the work for a price; it may be a contract for work in which the use of materials is accessory or incidental to the execution of the work; or it may be a contract for supply of goods where some work is required to be done as incidental to the sale. Where a contract is of the first type, it is a composite contract consisting essentially of two contracts, one for the sale of goods and the other for work and labour. The second type of contract is clearly a contract for work and labour not involving sale of goods, while the third type is a contract for sale where the goods are sold as chattels and some work is undoubtedly done, but it is done only as incidental to the sale. No difficulty arises where a contract is of the first type, because it is divisible and the contract sale can be separated from the contract for work and labour and the amount payable under the composite contract can be apportioned between the two. The real difficulty arises where the contract is of the second or third type, because in such a case it is always a difficult and intriguing problem to decided in which category the contract falls. The dividing line between the two types of contracts is somewhat hazy and "thin partitions do their bounds divide". But even so the distinction is there and it is very much real and the court has to perform at times the ingenious exercise of distinguishing one form theclear case of the former category would be a contract for supply of air-conditioner where the contract may provide that the supplier will fix up the air-conditioner in the premises. Ordinarily a separate charge is provided in such contract for the work of fixing up but in a given case it may be included in the total price. Such a contract would plainly be a contract for sale because the work of fixing up the air-conditioner would be incidental to the sale. Then take a contract for constructing a building where considerable quantity of materials is required to be used in the execution of the work. This would clearly be a contract for work and labour and fall within the latter category. But, as we pointed out earlier, there may be, and indeed as the decided cases show, there are a large number of case which are on the border-line and it is here that difficulty is often experienced in the application of this primary test. To resolve this difficulty, the courts have evolved some subsidiary tests. One such test is that formulated by this Court in Commissioner of Sales Tax, Madhya Pradesh v. Purshottam Premji ([1970] 26 S.T.C. 38 (S.C.)), where it has beenprimary difference between a contract for work or service and a contract for sale of goods is that in the former there is in the person performing work or rendering service no property in the thing produced as a whole ........ In the case of a contract for sale, the thing produced as a whole has individual existence as the sole property of the party who produced it, at some time before delivery, and the property therein passes only under the contract relating thereto to the other party forcontract was not for transfer of property in the window-leaves as window-leaves. It was a contract for providing and fixing windows and windows could come into existence only when the window-leaves were fixed to the building by bestowing labour and skill. It was, therefore, held to be a works contract. The same reasoning was applied by this Court in State of Rajasthan v. Nenu Ram ([1970] 26 S.T.C. 268 (S.C.)) for holding that a contract for supply and fixing of wooden doors and windows with sashes and frames and wooden chawkhats in the Police Lines building was a contract for work and labour. Let us, therefore, apply this test in order to determine what is the nature of the contract in the present case : is it a contract for sale or a contract for work and labour ?Now, it is clear that the contract is for fabrication, supply, erection and installation of two types of rolling shutters and not only are the rolling shutters to be manufactured according the specifications, designs, drawings and instructions provided in the contract, but they are also to be erected and installed at the premises of the company. The price stipulated in the contract is inclusive of erection and installation charges and the contract does not recognise any dichotomy between fabrication and supply of the rolling shutters and their erection and installation so far as the price is concerned. The erection and installation of the rolling shutters is as much an essential part of the contract as the fabrication and supply and supply and it is only on the erection and installation of the rolling shutters that the contract would be fully executed. It is necessary, in order to understand the true nature of the contract, to know what is a rolling shutter and how it is erected and installed in the premises. It is clear from the statement exhibit C to the petition for special leave, which statement was submitted before the Sales Tax Tribunal and the correctness of which was at no time disputed before us, that a rolling shutter consists of five component parts, namely, two brackets welded with U type clamps, one pipe shafting with high tension springs, shutter screen made out of 20G/18G thickness of metal as required by the customer, side guides or guide channels welded with iron clamps to the bottom with provision of locking arrangements with welded handles and top cover. These component parts are fabricated by the manufacturer and taken to the site and fixed on the premises and then comes into existence a rolling shutter as an identifiable commercial article.The method of fixing the component parts in position the premises so as to bring into existence the commercial article known as a rolling shutter is fully described in the statement exhibit C. First of all, certain masonry work is required to be done by the customer and that has to be carried out by the customer at his own cost. Then the brackets are fixed on either side on the top portion of the opening by grouting holes on the masonry walls and inserting the bolts. Thereafter the holes are filled with cement and the pipe shafting with high tension springs is inserted into the U clamps of the brackets. Then the iron curtain of the rolling shutter is hoisted over the high tension springs and tightened by means of nut bolts, and guide channels are then fixed. by grouting masonry walls where side guide clamps are to be fixed. After fixing the clamps to the grouted portion of the wall, the same is plastered and then the iron curtain of the shutter is lowered through the guide channels to operate the shutter manually up and down. The rolling shutter is then "born" and it becomes a permanent fixture to the premises. The Indian Standards Specification Book for Metal Rolling Shutters and Rolling Grills also gives a similar procedure for fixing the component parts of the rolling shutter on the premises. It clearly shows that a rolling shutter consists of curtain, lock plates, guide channels, bracket plated, rollers, hood covers, gears, worms, fixing bolts, safety devices, anchoring rods, central hasp and staple. Each guide channel has to be provided with a minimum of three fixing cleats or supports for attachment to the walls or column by means of bolts or screws. The guide channels are further attached to the jambs, plumb either in the overlapping fashion, projecting fashion or embedded in grooves, depending on the method of fixing. All these operations take place at the site after despatch of the component parts of the rolling shutter. Hood cover is fixed in a neat manner and supported at the top at suitable intervals. This also has to be done at the site. Item 11.1 of the specification shows that the rolling shutter curtain and bottom lock plate are interlocked together and rolled in one piece, but the other parts like guide channels, bracket plates, rollers, etc., are despatched separately. Item 12.1 shows that "all the rolling shutters are erected by the manufacturer or his authorised representative in a sound manner, so as to afford trouble-free and easy operation, long life and neat appearance". It will thus, be seen that the component parts do not constitute a rolling shutter until they are fixed and erected on the premises. It is only when the component parts are fixed on the premises and fitted into one another that they constitute a rolling shutter as a commercial article and till then they are merely component parts and cannot be said to constitute a rolling shutter. The erection and installation of the rolling shutter cannot, therefore, be said to be incidental to its manufacture and supply. It is a fundamental and integral part of the contract because without it the rolling shutter does not come into being. The manufacturer would undoubtedly be the owner or the component parts when he fabricates them, but at no stages does he become the owner or the rolling shutter as a unit so as to transfer the property in it to the customer. The rolling shutter comes into existence as a unit when the component parts are fixed in position on the premises and it becomes the property of the customer as soon as it comes into being. There is no transfer of property in the rolling shutter by the manufacturer to the customer as a chattel. It is essentially a transaction for fabricating component parts and fixing them on the premises so as to constitute a rolling shutter. The contract is thus clearly and indisputably a contract for work and labour and not a contract for sale.The revenue leaned heavily on the provision in the contract that the delivery of the goods shall be ex works and once the delivery of the goods is effected, no claim for rejection shall be entertained and relying on this provision, the revenue contended that under the contract the rolling shutters were to be delivered by the assessee to the company ex works, that is, at the works of the assessee and the property in the rolling shutters passed to the company as soon as they were delivered and hence it was a contract for sale. We do not think this contention of the revenue has any force and it must be rejected. It is clear from the above discussion that a rolling shutter as a complete unit is not fabricated by the manufacturer in his factory but he manufactures only the component parts and it is only when the component parts are fitted into position and fixed on the premises that a rolling shutter comes into being as a commercial article and, therefore, when the contract provides that the delivery of the goods shall be ex works, what is obviously meant is that the component parts shall be delivered to the company at the works of the assessee and once they are delivered, they shall not be liable to be rejected by the company. But that does not mean that as soon as the component parts are delivered to the company, the contract is fully executed. The component parts do not constitute a rolling shutter and it is the obligation of the assessee under the contract to fix the component parts in position on the premises and erect and install a rolling shutter. The execution of the contract is not completed until the assessee carries out this obligation imposed upon it under the contract and a rolling shutter is erected and installed at the premises. It is true that clause 12 of the printed terms and conditions provides that 50 per cent of the amount under the contract shall be paid as advance and the balance against delivery of the goods ex works, but this clause is clearly overridden by the special terms specifically written out in the contract that 25 per cent of the amount shall be paid by way of advance, 65 per cent against delivery and the remaining 10 per cent after completion of erection and handing over of the rolling shutters to the satisfaction of the company. This provision undoubtedly stipulates that 90 per cent of the amount due under the contract would be paid before erection and installation of the rolling shutters has commenced, but that would not make it a contract for sale of rolling shutters. The true nature of the contract cannot depend on the mode of payment of the amount provided in the contract. The parties may provide by mutual agreement that the amount stipulated in the contract may be paid at different stages of the execution of the contract, but that cannot make the contract one for sale of goods if it is otherwise a contract for work and labour. It may be noted that the contract in State of Madras v. Richardson & Cruddas Ltd. ([1968] 21 S.T.C. 245 (S.C.)). contained a provision that the full amount due under the contract shall be paid in advance even before the execution of the work has started and yet the Madras High Court held, and that view was affirmed by this Court, that the contract was a works contract. The payment of the amount due under the contract may be spread over the entire period of the execution of the contract with a view either to put the manufacturer or contractor in possession of funds for the execution of the contract or to secure him against any risk of non-payment by the customer. That cannot have any bearing on the determination of the question whether the contract is one for sale or for work and labour.Here the last portion of the special term in regard to payment of the amount due under the contract also makes it clear that it is only when the component parts are fitted into position in the premises that a rolling shutter would be complete and this rolling shutter has to be to the satisfaction of the company and it is then to be handed over by the assessee to the company and then, and then alone, would the remaining 10 per cent be payable by the company to the assessee. It is, therefore, clear that the contract is one single and indivisible contract and the erection and installation of the rolling shutter is as much a fundamental part of the contract as the fabrication and supply. We must, in the circumstances, hold, driven by the compulsion of this logic, that the contract was a contract for work and labour and not a contract for sale. This view which we are taking is completely supported by the decision of this Court in Vanguard Rolling Shutters & Steel Works v. Commissioner of Sales Tax, U.P. ([1977] 39 S.T.C. 372 (S.C.)), to which one of us (Bhagwati, J.) was a party. | 1 | 4,745 | 3,074 | ### 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:
being. The manufacturer would undoubtedly be the owner or the component parts when he fabricates them, but at no stages does he become the owner or the rolling shutter as a unit so as to transfer the property in it to the customer. The rolling shutter comes into existence as a unit when the component parts are fixed in position on the premises and it becomes the property of the customer as soon as it comes into being. There is no transfer of property in the rolling shutter by the manufacturer to the customer as a chattel. It is essentially a transaction for fabricating component parts and fixing them on the premises so as to constitute a rolling shutter. The contract is thus clearly and indisputably a contract for work and labour and not a contract for sale.The revenue leaned heavily on the provision in the contract that the delivery of the goods shall be ex works and once the delivery of the goods is effected, no claim for rejection shall be entertained and relying on this provision, the revenue contended that under the contract the rolling shutters were to be delivered by the assessee to the company ex works, that is, at the works of the assessee and the property in the rolling shutters passed to the company as soon as they were delivered and hence it was a contract for sale. We do not think this contention of the revenue has any force and it must be rejected. It is clear from the above discussion that a rolling shutter as a complete unit is not fabricated by the manufacturer in his factory but he manufactures only the component parts and it is only when the component parts are fitted into position and fixed on the premises that a rolling shutter comes into being as a commercial article and, therefore, when the contract provides that the delivery of the goods shall be ex works, what is obviously meant is that the component parts shall be delivered to the company at the works of the assessee and once they are delivered, they shall not be liable to be rejected by the company. But that does not mean that as soon as the component parts are delivered to the company, the contract is fully executed. The component parts do not constitute a rolling shutter and it is the obligation of the assessee under the contract to fix the component parts in position on the premises and erect and install a rolling shutter. The execution of the contract is not completed until the assessee carries out this obligation imposed upon it under the contract and a rolling shutter is erected and installed at the premises. It is true that clause 12 of the printed terms and conditions provides that 50 per cent of the amount under the contract shall be paid as advance and the balance against delivery of the goods ex works, but this clause is clearly overridden by the special terms specifically written out in the contract that 25 per cent of the amount shall be paid by way of advance, 65 per cent against delivery and the remaining 10 per cent after completion of erection and handing over of the rolling shutters to the satisfaction of the company. This provision undoubtedly stipulates that 90 per cent of the amount due under the contract would be paid before erection and installation of the rolling shutters has commenced, but that would not make it a contract for sale of rolling shutters. The true nature of the contract cannot depend on the mode of payment of the amount provided in the contract. The parties may provide by mutual agreement that the amount stipulated in the contract may be paid at different stages of the execution of the contract, but that cannot make the contract one for sale of goods if it is otherwise a contract for work and labour. It may be noted that the contract in State of Madras v. Richardson & Cruddas Ltd. ([1968] 21 S.T.C. 245 (S.C.)). contained a provision that the full amount due under the contract shall be paid in advance even before the execution of the work has started and yet the Madras High Court held, and that view was affirmed by this Court, that the contract was a works contract. The payment of the amount due under the contract may be spread over the entire period of the execution of the contract with a view either to put the manufacturer or contractor in possession of funds for the execution of the contract or to secure him against any risk of non-payment by the customer. That cannot have any bearing on the determination of the question whether the contract is one for sale or for work and labour.Here the last portion of the special term in regard to payment of the amount due under the contract also makes it clear that it is only when the component parts are fitted into position in the premises that a rolling shutter would be complete and this rolling shutter has to be to the satisfaction of the company and it is then to be handed over by the assessee to the company and then, and then alone, would the remaining 10 per cent be payable by the company to the assessee. It is, therefore, clear that the contract is one single and indivisible contract and the erection and installation of the rolling shutter is as much a fundamental part of the contract as the fabrication and supply. We must, in the circumstances, hold, driven by the compulsion of this logic, that the contract was a contract for work and labour and not a contract for sale. This view which we are taking is completely supported by the decision of this Court in Vanguard Rolling Shutters & Steel Works v. Commissioner of Sales Tax, U.P. ([1977] 39 S.T.C. 372 (S.C.)), to which one of us (Bhagwati, J.) was a party.10.
### Response:
1
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being. The manufacturer would undoubtedly be the owner or the component parts when he fabricates them, but at no stages does he become the owner or the rolling shutter as a unit so as to transfer the property in it to the customer. The rolling shutter comes into existence as a unit when the component parts are fixed in position on the premises and it becomes the property of the customer as soon as it comes into being. There is no transfer of property in the rolling shutter by the manufacturer to the customer as a chattel. It is essentially a transaction for fabricating component parts and fixing them on the premises so as to constitute a rolling shutter. The contract is thus clearly and indisputably a contract for work and labour and not a contract for sale.The revenue leaned heavily on the provision in the contract that the delivery of the goods shall be ex works and once the delivery of the goods is effected, no claim for rejection shall be entertained and relying on this provision, the revenue contended that under the contract the rolling shutters were to be delivered by the assessee to the company ex works, that is, at the works of the assessee and the property in the rolling shutters passed to the company as soon as they were delivered and hence it was a contract for sale. We do not think this contention of the revenue has any force and it must be rejected. It is clear from the above discussion that a rolling shutter as a complete unit is not fabricated by the manufacturer in his factory but he manufactures only the component parts and it is only when the component parts are fitted into position and fixed on the premises that a rolling shutter comes into being as a commercial article and, therefore, when the contract provides that the delivery of the goods shall be ex works, what is obviously meant is that the component parts shall be delivered to the company at the works of the assessee and once they are delivered, they shall not be liable to be rejected by the company. But that does not mean that as soon as the component parts are delivered to the company, the contract is fully executed. The component parts do not constitute a rolling shutter and it is the obligation of the assessee under the contract to fix the component parts in position on the premises and erect and install a rolling shutter. The execution of the contract is not completed until the assessee carries out this obligation imposed upon it under the contract and a rolling shutter is erected and installed at the premises. It is true that clause 12 of the printed terms and conditions provides that 50 per cent of the amount under the contract shall be paid as advance and the balance against delivery of the goods ex works, but this clause is clearly overridden by the special terms specifically written out in the contract that 25 per cent of the amount shall be paid by way of advance, 65 per cent against delivery and the remaining 10 per cent after completion of erection and handing over of the rolling shutters to the satisfaction of the company. This provision undoubtedly stipulates that 90 per cent of the amount due under the contract would be paid before erection and installation of the rolling shutters has commenced, but that would not make it a contract for sale of rolling shutters. The true nature of the contract cannot depend on the mode of payment of the amount provided in the contract. The parties may provide by mutual agreement that the amount stipulated in the contract may be paid at different stages of the execution of the contract, but that cannot make the contract one for sale of goods if it is otherwise a contract for work and labour. It may be noted that the contract in State of Madras v. Richardson & Cruddas Ltd. ([1968] 21 S.T.C. 245 (S.C.)). contained a provision that the full amount due under the contract shall be paid in advance even before the execution of the work has started and yet the Madras High Court held, and that view was affirmed by this Court, that the contract was a works contract. The payment of the amount due under the contract may be spread over the entire period of the execution of the contract with a view either to put the manufacturer or contractor in possession of funds for the execution of the contract or to secure him against any risk of non-payment by the customer. That cannot have any bearing on the determination of the question whether the contract is one for sale or for work and labour.Here the last portion of the special term in regard to payment of the amount due under the contract also makes it clear that it is only when the component parts are fitted into position in the premises that a rolling shutter would be complete and this rolling shutter has to be to the satisfaction of the company and it is then to be handed over by the assessee to the company and then, and then alone, would the remaining 10 per cent be payable by the company to the assessee. It is, therefore, clear that the contract is one single and indivisible contract and the erection and installation of the rolling shutter is as much a fundamental part of the contract as the fabrication and supply. We must, in the circumstances, hold, driven by the compulsion of this logic, that the contract was a contract for work and labour and not a contract for sale. This view which we are taking is completely supported by the decision of this Court in Vanguard Rolling Shutters & Steel Works v. Commissioner of Sales Tax, U.P. ([1977] 39 S.T.C. 372 (S.C.)), to which one of us (Bhagwati, J.) was a party.
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M/S. Shree Mahavir Carbon Ltd Vs. Om Prakash Jalan (Financer) | of these allegations. However, there is no discussion worth the name, in the impugned judgment, as to how and on what basis the High Court accepted such a plea of the respondents herein, in recording its conclusion that it was a case of rendition of accounts simplicitor. 10. After all the High Court was setting aside the order of the Subordinate Court by which Subordinate Court had taken cognizance in the matter. This could be done after appropriately dealing with the contentions of both the parties, more specially when it was first judicial review of the orders of the Court below. In Hindustan Times Ltd. Vs. Union of India; (1998) 2 SCC 242 , this Court made pertinent observation in the context: “In an article on Writing Judgments, Justice Michael Kirby (1990) 64 Austr L.J p.691) of Australia, has approached the problem from the point of the litigant, the legal profession, the subordinate Courts/tribunals, the brother Judges and the Judge’s own conscience. To the litigant, the duty of the Judge is to uphold his own integrity and let the losing party know why he lost the case. The legal profession is entitled to have it demonstrated that the Judge had the correct principles in mind, had properly applied them and is entitled to examine the body of the judgment for the learning and precedent that they provide and for the reassurance of the quality of the judiciary which is still the centre-piece of our administration of justice. It does not take long for the profession to come to know, including through - the written pages of published judgments, the lazy Judge, the Judge prone to errors of fact, etc. The reputational considerations are important for the exercise of appellate rights, for the Judge’s own self discipline, for attempts at improvement and the maintenance of the integrity and quality of our judiciary. From the point of view of other Judges, the benefit that accrues to the lower hierarchy of Judges and tribunals is of utmost importance. Justice Asprey of Australia has even said in Petit v. Dankley (1971) (1) NSWLR 376 (CA) that the failure of a Court to give reasons is an encroachment upon the right of appeal given to a litigant.It was finally stated:“In our view, the satisfaction which a reasoned judgment gives to the losing party or his lawyer is the test of a good judgment. Disposal of cases is no doubt important but quality of the judgment is equally, if not more, important. There is no point in shifting the burden to the higher Court either to support the judgment by reasons or to consider the evidence or law for the first time to see if the judgment needs a reversal.In that case, the order of dismissal of the writ petition by the High Court was affirmed by us but the task fell on the Supreme Court, to inform the appellant why it had lost the case in the High Court.” 11. In the present case, we have avoided to do this exercise and have not gone into the merits of the case to find out whether the conclusion of the High Court is correct or not, as the counsel for both the parties have agreed for remand of the matter. 12. It is no where suggested by us that the judgment should be too lengthy or prolix and disproportionate to the issue involved. However, it is to be borne in mind that the principal objective in giving judgment is to make an effective, practical and workable decision. The court resolves conflict by determining the merits of conflicting cases, and by choosing between notions of justice, convenience, public policy, morality, analogy, and takes into account the opinions of other courts or writers (Precedents). Since the Court is to come to a workable decision, its reasoning and conclusion must be practical, suit the facts as found and provide and effective, workable remedy to the winner. 13. We are of the opinion that while recording the decision with clarity, the Court is also supposed to record sufficient reasons in taking a particular decision or arriving at a particular conclusion. The reasons should be such that they demonstrate that the decision has been arrived at on a objective consideration. 14. When we talk of giving “reasons” in support of a judgment, what is meant by “reasons”? In the context of legal decision making, the focus is to what makes something a legal valid reason. Thus, “reason would mean a justifying reason, or more simply a justification for a decision is a consideration, in a non-arbitrary ways in favour of making or accepting that - decision. If there is no justification in support of a decision, such a decision is without any reason or justifying reason. 15. We are not entering into a jurisprudential debate on the appropriate theory of legal reasoning. It is not even a discourse on how to write judgments. Our intention is to simply demonstrate the importance of legal reasoning in support of a particular decision. What we have highlighted is that instant is a case or arriving at a conclusion, in complete absence of reasons, what to talk of adequate or good reasons that justifying that conclusion. 16. In the given case, it was required by the High Court to take note of the arguments of the complainant on the basis of which complainant insist that ingredients of the particular offences alleged are prime facie established justifying the cognizance of the complaint and the arguments of the respondents herein on the basis of which respondents made an endeavour to demonstrate that it was a pure civil dispute with no elements of criminality attached. Thereafter, the conclusion should have been backed by reasons as to why the arguments of the complainant are merit less and what is the rationale basis for accepting the case of accused persons. We hope that this aspect would be kept in mind by the High Court while deciding the case afresh. 17. | 1[ds]We are of the opinion that while recording the decision with clarity, the Court is also supposed to record sufficient reasons in taking a particular decision or arriving at a particular conclusion. The reasons should be such that they demonstrate that the decision has been arrived at on a objectiveare not entering into a jurisprudential debate on the appropriate theory of legal reasoning. It is not even a discourse on how to write judgments. Our intention is to simply demonstrate the importance of legal reasoning in support of a particular decision. What we have highlighted is that instant is a case or arriving at a conclusion, in complete absence of reasons, what to talk of adequate or good reasons that justifying thatwas required by the High Court to take note of the arguments of the complainant on the basis of which complainant insist that ingredients of the particular offences alleged are prime facie established justifying the cognizance of the complaint and the arguments of the respondents herein on the basis of which respondents made an endeavour to demonstrate that it was a pure civil dispute with no elements of criminality attached. Thereafter, the conclusion should have been backed by reasons as to why the arguments of the complainant are merit less and what is the rationale basis for accepting the case of accused persons. We hope that this aspect would be kept in mind by the High Court while deciding the case afresh. | 1 | 2,462 | 258 | ### 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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of these allegations. However, there is no discussion worth the name, in the impugned judgment, as to how and on what basis the High Court accepted such a plea of the respondents herein, in recording its conclusion that it was a case of rendition of accounts simplicitor. 10. After all the High Court was setting aside the order of the Subordinate Court by which Subordinate Court had taken cognizance in the matter. This could be done after appropriately dealing with the contentions of both the parties, more specially when it was first judicial review of the orders of the Court below. In Hindustan Times Ltd. Vs. Union of India; (1998) 2 SCC 242 , this Court made pertinent observation in the context: “In an article on Writing Judgments, Justice Michael Kirby (1990) 64 Austr L.J p.691) of Australia, has approached the problem from the point of the litigant, the legal profession, the subordinate Courts/tribunals, the brother Judges and the Judge’s own conscience. To the litigant, the duty of the Judge is to uphold his own integrity and let the losing party know why he lost the case. The legal profession is entitled to have it demonstrated that the Judge had the correct principles in mind, had properly applied them and is entitled to examine the body of the judgment for the learning and precedent that they provide and for the reassurance of the quality of the judiciary which is still the centre-piece of our administration of justice. It does not take long for the profession to come to know, including through - the written pages of published judgments, the lazy Judge, the Judge prone to errors of fact, etc. The reputational considerations are important for the exercise of appellate rights, for the Judge’s own self discipline, for attempts at improvement and the maintenance of the integrity and quality of our judiciary. From the point of view of other Judges, the benefit that accrues to the lower hierarchy of Judges and tribunals is of utmost importance. Justice Asprey of Australia has even said in Petit v. Dankley (1971) (1) NSWLR 376 (CA) that the failure of a Court to give reasons is an encroachment upon the right of appeal given to a litigant.It was finally stated:“In our view, the satisfaction which a reasoned judgment gives to the losing party or his lawyer is the test of a good judgment. Disposal of cases is no doubt important but quality of the judgment is equally, if not more, important. There is no point in shifting the burden to the higher Court either to support the judgment by reasons or to consider the evidence or law for the first time to see if the judgment needs a reversal.In that case, the order of dismissal of the writ petition by the High Court was affirmed by us but the task fell on the Supreme Court, to inform the appellant why it had lost the case in the High Court.” 11. In the present case, we have avoided to do this exercise and have not gone into the merits of the case to find out whether the conclusion of the High Court is correct or not, as the counsel for both the parties have agreed for remand of the matter. 12. It is no where suggested by us that the judgment should be too lengthy or prolix and disproportionate to the issue involved. However, it is to be borne in mind that the principal objective in giving judgment is to make an effective, practical and workable decision. The court resolves conflict by determining the merits of conflicting cases, and by choosing between notions of justice, convenience, public policy, morality, analogy, and takes into account the opinions of other courts or writers (Precedents). Since the Court is to come to a workable decision, its reasoning and conclusion must be practical, suit the facts as found and provide and effective, workable remedy to the winner. 13. We are of the opinion that while recording the decision with clarity, the Court is also supposed to record sufficient reasons in taking a particular decision or arriving at a particular conclusion. The reasons should be such that they demonstrate that the decision has been arrived at on a objective consideration. 14. When we talk of giving “reasons” in support of a judgment, what is meant by “reasons”? In the context of legal decision making, the focus is to what makes something a legal valid reason. Thus, “reason would mean a justifying reason, or more simply a justification for a decision is a consideration, in a non-arbitrary ways in favour of making or accepting that - decision. If there is no justification in support of a decision, such a decision is without any reason or justifying reason. 15. We are not entering into a jurisprudential debate on the appropriate theory of legal reasoning. It is not even a discourse on how to write judgments. Our intention is to simply demonstrate the importance of legal reasoning in support of a particular decision. What we have highlighted is that instant is a case or arriving at a conclusion, in complete absence of reasons, what to talk of adequate or good reasons that justifying that conclusion. 16. In the given case, it was required by the High Court to take note of the arguments of the complainant on the basis of which complainant insist that ingredients of the particular offences alleged are prime facie established justifying the cognizance of the complaint and the arguments of the respondents herein on the basis of which respondents made an endeavour to demonstrate that it was a pure civil dispute with no elements of criminality attached. Thereafter, the conclusion should have been backed by reasons as to why the arguments of the complainant are merit less and what is the rationale basis for accepting the case of accused persons. We hope that this aspect would be kept in mind by the High Court while deciding the case afresh. 17.
### Response:
1
### Explanation:
We are of the opinion that while recording the decision with clarity, the Court is also supposed to record sufficient reasons in taking a particular decision or arriving at a particular conclusion. The reasons should be such that they demonstrate that the decision has been arrived at on a objectiveare not entering into a jurisprudential debate on the appropriate theory of legal reasoning. It is not even a discourse on how to write judgments. Our intention is to simply demonstrate the importance of legal reasoning in support of a particular decision. What we have highlighted is that instant is a case or arriving at a conclusion, in complete absence of reasons, what to talk of adequate or good reasons that justifying thatwas required by the High Court to take note of the arguments of the complainant on the basis of which complainant insist that ingredients of the particular offences alleged are prime facie established justifying the cognizance of the complaint and the arguments of the respondents herein on the basis of which respondents made an endeavour to demonstrate that it was a pure civil dispute with no elements of criminality attached. Thereafter, the conclusion should have been backed by reasons as to why the arguments of the complainant are merit less and what is the rationale basis for accepting the case of accused persons. We hope that this aspect would be kept in mind by the High Court while deciding the case afresh.
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Krishna Kumar Narula & Another Vs. State of Jammu and Kashmir & Others | under the East Bengal and Assam Excise Act 1910. There incidentally two decisions of this Court, namely, 1954 SCR 873 : (AIR 1954 SC 220 ) and State of Assam v. A. N. Kidwai, Commissioner of Hills Division and Appeals, Shillong, 1957 SCR 295 : (AIR 1957 SC 414 ) were noticed and it was observed that there was no inherent right to the settlement of liquor shops. No question of fundamental right under Art. 19(1) arose in that case.14. This Court in State of Bombay v. R. M.. D. Chamarbaugwala, 1957 SCR 874 at p. 925 (AIR 1957 SC 699 at p. 720) upheld the validity of the Bombay Lotteries and Prize Competition Control Tax Act, 1948 (Bom LIV of 1948), as amended by the Bombay Lotteries and Prize Competition Control and Tax (Amendment ) Act(Bombay Act XXX of 1952). One of the questions raised was whether gambling was business or trade or commerce within the meaning of Art. 19 (1) (g) of the Constitution or Art. 301 thereof. Das, C.J., after considering the various decisions, observed thus:"We find it difficult to accept the contention that those activities which encourage a spirit of reckless propensity for making easy gain by lot or chance, which lead to the loss of the hard earned money of the undiscerning and improvident common man and thereby lower his standard of living and drive him into a chronic state of indebtedness and eventually disrupt the peace and happiness of his humble home could possibly have been intended by our Constitution makers to be raised to the status of trade, commerce or intercourse and to be made the subject-matter of a fundamental right guaranteed by Art. 19 (1) (g)."This decision only lays down that gambling is not business or trade. We are not concerned in this case with gambling.15. A Division Bench of the Orissa High Court in Ranchorlalji v. Revenue Divisional Commissioner, Northern Division, Sambalpur, AIR 1960 Orissa 88 at p. 92 maintained the validity of the provisions of the Orissa Cinema (Regulation) Act, 1954, on the ground that it did not infringe the fundamental right guaranteed under Art. 19(1) (g), read with Art. 19 (6) of the Constitution. The learned Judges observed:"It is only when no policy or principle has been laid down either in the Preamble or in the other provisions of the statute or statutory rules, and the impugned provision confers arbitrary or excessive powers on the authority, that it is liable of the restrictions imposed will necessarily vary with the nature of the business. Restrictions on the carrying on of business in respect of "normally available” commodities should not be as drastic as those in respect of a business or occupation which is likely to cause nuisance or danger to the public."This decision also does not say that there is no fundamental right to do business which is likely to cause nuisance or danger to the public, but stated that the nature of the restrictions would depend upon the nature of the trade.16. A scrutiny of these decisions does not support the contention that the courts held that dealing in liquor was not business or trade. They were only considering the provisions of the various Acts which conferred a restricted right to do business. None of them held that a right to do business in liquor was not a fundamental right.17. We, therefore, hold that clearing in liquor is business and a citizen has a right to do business in that commodity, but the State can make a law imposing reasonable restrictions on the said right, in public interests.18. The next question is whether S. 20 of the Act infringes the fundamental right under Art. 19 of the Constitution. This question, as we have said earlier, was not raised before the High Court. We do not therefore, allow the learned counsel to raise this question before us for the first time We assume, therefore, without deciding that S. 20 of the Act does not infringe Art. 19 (1) (g) . of the Constitution,19. Even so it was contended that the order of the Commissioner of Excise and Taxation was arbitrary and in violation of the principles of natural justice and, therefore, it operated as an unreasonable restriction on the appellants fundamental right to do business.20. This argument was sought to be sustained on the following grounds: (1) Though under the Act yearly leases were issued, in practice renewal was a matter of course. (2) On the basis of the issuance of a licence heavy expenditure had been incurred by the appellants. (3) No opportunity was given to the appellants to establish that locality was suitable for carrying on the said business and that the complaints made against them were false. And (4) even the High Court held that in regard to license against whom there were no complaints a further inquiry should be held. In support of the contention we were taken through all the necessary correspondence. The learned judges on a consideration of the entire material placed before them, held that the Commissioner of Excise and Taxation made bona fide enquiry and found that the locality was not suitable for carrying on business in liquor in view of the various circumstances mentioned in the counter-affidavit. We do not think we are justified in inferring with the finding of fact arrived at by the High Court on the material placed before it. On the said finding it cannot be held that the order of the Commissioner was arbitrary or unreasonable.21. We cannot agree with the learned counsel that S. 22 controls S. 20 of the Act for the former deals with the cancellation of a licence and the latter with the issuance of a fresh licence: they deal with two different subject-matters.22. Lastly, the learned counsel for the appellants contended that the order was mala fide. But this point was not pressed before the High Court and we cannot allow it to be raised for the first time before us.23. | 0[ds]9. The first point, namely, the constitutional validity of S. 20 of the Act was not raised in the High Court. We cannot permit the appellant to raise that question for the first time before us. But we should not be understood to have expressed our view one way or other on the said question.A scrutiny of these decisions does not support the contention that the courts held that dealing in liquor was not business or trade. They were only considering the provisions of the various Acts which conferred a restricted right to do business. None of them held that a right to do business in liquor was not a fundamental right.We, therefore, hold that clearing in liquor is business and a citizen has a right to do business in that commodity, but the State can make a law imposing reasonable restrictions on the said right, in publicquestion, as we have said earlier, was not raised before the High Court. We do not therefore, allow the learned counsel to raise this question before us for the first time We assume, therefore, without deciding that S. 20 of the Act does not infringe Art. 19 (1) (g) . of theEven so it was contended that the order of the Commissioner of Excise and Taxation was arbitrary and in violation of the principles of natural justice and, therefore, it operated as an unreasonable restriction on the appellants fundamental right to do business.This argument was sought to be sustained on the following grounds: (1) Though under the Act yearly leases were issued, in practice renewal was a matter of course. (2) On the basis of the issuance of a licence heavy expenditure had been incurred by the appellants. (3) No opportunity was given to the appellants to establish that locality was suitable for carrying on the said business and that the complaints made against them were false. And (4) even the High Court held that in regard to license against whom there were no complaints a further inquiry should be held. In support of the contention we were taken through all the necessary correspondence. The learned judges on a consideration of the entire material placed before them, held that the Commissioner of Excise and Taxation made bona fide enquiry and found that the locality was not suitable for carrying on business in liquor in view of the various circumstances mentioned in the counter-affidavit. We do not think we are justified in inferring with the finding of fact arrived at by the High Court on the material placed before it. On the said finding it cannot be held that the order of the Commissioner was arbitrary or unreasonable.We cannot agree with the learned counsel that S. 22 controls S. 20 of the Act for the former deals with the cancellation of a licence and the latter with the issuance of a fresh licence: they deal with two different subject-matters.Lastly, the learned counsel for the appellants contended that the order was mala fide. But this point was not pressed before the High Court and we cannot allow it to be raised for the first time before us. | 0 | 3,704 | 576 | ### 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:
under the East Bengal and Assam Excise Act 1910. There incidentally two decisions of this Court, namely, 1954 SCR 873 : (AIR 1954 SC 220 ) and State of Assam v. A. N. Kidwai, Commissioner of Hills Division and Appeals, Shillong, 1957 SCR 295 : (AIR 1957 SC 414 ) were noticed and it was observed that there was no inherent right to the settlement of liquor shops. No question of fundamental right under Art. 19(1) arose in that case.14. This Court in State of Bombay v. R. M.. D. Chamarbaugwala, 1957 SCR 874 at p. 925 (AIR 1957 SC 699 at p. 720) upheld the validity of the Bombay Lotteries and Prize Competition Control Tax Act, 1948 (Bom LIV of 1948), as amended by the Bombay Lotteries and Prize Competition Control and Tax (Amendment ) Act(Bombay Act XXX of 1952). One of the questions raised was whether gambling was business or trade or commerce within the meaning of Art. 19 (1) (g) of the Constitution or Art. 301 thereof. Das, C.J., after considering the various decisions, observed thus:"We find it difficult to accept the contention that those activities which encourage a spirit of reckless propensity for making easy gain by lot or chance, which lead to the loss of the hard earned money of the undiscerning and improvident common man and thereby lower his standard of living and drive him into a chronic state of indebtedness and eventually disrupt the peace and happiness of his humble home could possibly have been intended by our Constitution makers to be raised to the status of trade, commerce or intercourse and to be made the subject-matter of a fundamental right guaranteed by Art. 19 (1) (g)."This decision only lays down that gambling is not business or trade. We are not concerned in this case with gambling.15. A Division Bench of the Orissa High Court in Ranchorlalji v. Revenue Divisional Commissioner, Northern Division, Sambalpur, AIR 1960 Orissa 88 at p. 92 maintained the validity of the provisions of the Orissa Cinema (Regulation) Act, 1954, on the ground that it did not infringe the fundamental right guaranteed under Art. 19(1) (g), read with Art. 19 (6) of the Constitution. The learned Judges observed:"It is only when no policy or principle has been laid down either in the Preamble or in the other provisions of the statute or statutory rules, and the impugned provision confers arbitrary or excessive powers on the authority, that it is liable of the restrictions imposed will necessarily vary with the nature of the business. Restrictions on the carrying on of business in respect of "normally available” commodities should not be as drastic as those in respect of a business or occupation which is likely to cause nuisance or danger to the public."This decision also does not say that there is no fundamental right to do business which is likely to cause nuisance or danger to the public, but stated that the nature of the restrictions would depend upon the nature of the trade.16. A scrutiny of these decisions does not support the contention that the courts held that dealing in liquor was not business or trade. They were only considering the provisions of the various Acts which conferred a restricted right to do business. None of them held that a right to do business in liquor was not a fundamental right.17. We, therefore, hold that clearing in liquor is business and a citizen has a right to do business in that commodity, but the State can make a law imposing reasonable restrictions on the said right, in public interests.18. The next question is whether S. 20 of the Act infringes the fundamental right under Art. 19 of the Constitution. This question, as we have said earlier, was not raised before the High Court. We do not therefore, allow the learned counsel to raise this question before us for the first time We assume, therefore, without deciding that S. 20 of the Act does not infringe Art. 19 (1) (g) . of the Constitution,19. Even so it was contended that the order of the Commissioner of Excise and Taxation was arbitrary and in violation of the principles of natural justice and, therefore, it operated as an unreasonable restriction on the appellants fundamental right to do business.20. This argument was sought to be sustained on the following grounds: (1) Though under the Act yearly leases were issued, in practice renewal was a matter of course. (2) On the basis of the issuance of a licence heavy expenditure had been incurred by the appellants. (3) No opportunity was given to the appellants to establish that locality was suitable for carrying on the said business and that the complaints made against them were false. And (4) even the High Court held that in regard to license against whom there were no complaints a further inquiry should be held. In support of the contention we were taken through all the necessary correspondence. The learned judges on a consideration of the entire material placed before them, held that the Commissioner of Excise and Taxation made bona fide enquiry and found that the locality was not suitable for carrying on business in liquor in view of the various circumstances mentioned in the counter-affidavit. We do not think we are justified in inferring with the finding of fact arrived at by the High Court on the material placed before it. On the said finding it cannot be held that the order of the Commissioner was arbitrary or unreasonable.21. We cannot agree with the learned counsel that S. 22 controls S. 20 of the Act for the former deals with the cancellation of a licence and the latter with the issuance of a fresh licence: they deal with two different subject-matters.22. Lastly, the learned counsel for the appellants contended that the order was mala fide. But this point was not pressed before the High Court and we cannot allow it to be raised for the first time before us.23.
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### Explanation:
9. The first point, namely, the constitutional validity of S. 20 of the Act was not raised in the High Court. We cannot permit the appellant to raise that question for the first time before us. But we should not be understood to have expressed our view one way or other on the said question.A scrutiny of these decisions does not support the contention that the courts held that dealing in liquor was not business or trade. They were only considering the provisions of the various Acts which conferred a restricted right to do business. None of them held that a right to do business in liquor was not a fundamental right.We, therefore, hold that clearing in liquor is business and a citizen has a right to do business in that commodity, but the State can make a law imposing reasonable restrictions on the said right, in publicquestion, as we have said earlier, was not raised before the High Court. We do not therefore, allow the learned counsel to raise this question before us for the first time We assume, therefore, without deciding that S. 20 of the Act does not infringe Art. 19 (1) (g) . of theEven so it was contended that the order of the Commissioner of Excise and Taxation was arbitrary and in violation of the principles of natural justice and, therefore, it operated as an unreasonable restriction on the appellants fundamental right to do business.This argument was sought to be sustained on the following grounds: (1) Though under the Act yearly leases were issued, in practice renewal was a matter of course. (2) On the basis of the issuance of a licence heavy expenditure had been incurred by the appellants. (3) No opportunity was given to the appellants to establish that locality was suitable for carrying on the said business and that the complaints made against them were false. And (4) even the High Court held that in regard to license against whom there were no complaints a further inquiry should be held. In support of the contention we were taken through all the necessary correspondence. The learned judges on a consideration of the entire material placed before them, held that the Commissioner of Excise and Taxation made bona fide enquiry and found that the locality was not suitable for carrying on business in liquor in view of the various circumstances mentioned in the counter-affidavit. We do not think we are justified in inferring with the finding of fact arrived at by the High Court on the material placed before it. On the said finding it cannot be held that the order of the Commissioner was arbitrary or unreasonable.We cannot agree with the learned counsel that S. 22 controls S. 20 of the Act for the former deals with the cancellation of a licence and the latter with the issuance of a fresh licence: they deal with two different subject-matters.Lastly, the learned counsel for the appellants contended that the order was mala fide. But this point was not pressed before the High Court and we cannot allow it to be raised for the first time before us.
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Gurgaon Gramin Bank Vs. Khazani | Forum be complied within one month”. 6. The bank, dissatisfied with the order by the District Forum, filed Appeal No.2404/2007 before State Consumer Disputes Redressal Commission, Haryana, Panchkula. Rejecting the appeal, the appellate forum held as follows: “Admittedly, the complainant had got her buffalo insured with the opposite party no.1 with Tag bearing No.NIA03170. The post mortem report Annexure C-2 which was conducted by the vet. surgeon is a cogent proof with respect to the death of buffalo and in the said report the vet. surgeon had mentioned the Tag number of buffalo as 03170. However, the opposite party No.1 insurance company has denied having received of any Tag with the claim form submitted by the complainant. As per noting given by the field officer of the opposite party No.1, the buffalo was lying dead and there was no Tag in the ear of the dead buffalo. Thus, the burden shift on the opposite party No.2 that the Tag was not sent to the appellant – opposite Party No.1 for settling the claim in respect of the buffalo.” 7. The matter did not end there. The bank again moved the National Consumer Disputes Redressal Commission, New Delhi against the order dated 21.07.2009 passed by the State Commission, Haryana by filing a Revision Petition No. 4098 of 2009. The National Commission dismissed the Revision on 25.11.2009 stating as follows: “Finding recorded by the State Commission is a finding of fact, which cannot be interfered with in exercise of Revisional jurisdiction. Under Section 21 of the Consumer Protection Act, 1986, the National Commission, in revision, can interfere with the orders only if it appears that the Authority below has exercised a jurisdiction not vested in it by law or has failed to exercise a jurisdiction so vested or has acted in the exercise of its jurisdiction illegally or with material irregularity.We find no error/irregularity in the exercise of jurisdiction by the State Commission in its impugned order. Dismissed.” 8. The bank, still not satisfied, thought of bringing Smt. Khazani to the Supreme Court and filed the present Special Leave Petition against the order of the National Commission. Luckily, they got notice on the Special Leave Petition and Smt. Khazani has been brought to this Court. May be due to the ill-luck of the bank, the matter is before us. When the matter came up for hearing on 09.07.2012, we asked the counsel for the bank as to how much amount they had spent till date on this dispute which relates to the death of a buffalo, stake of which is only 15,000/-. We passed an order on 09.07.2012 which reads as follows: “We find that the dispute is only with regard to Rs.15,000/- and the matter has still been brought to Supreme Court.Bank will file affidavit within four weeks with regard to the amount spent for this litigation.List after four weeks.” 9. The Chief Manager of the bank in compliance with this order filed an affidavit with regard to the amount spent for litigation so far in a chart form which is reproduced hereunder:S.No.Forum/CourtsAmount of Legal FeesMisc. expensesTotal1.In District Forum2,200/-200/-2,400/-2.In State Forum1,750/-300/-2,050/-3.In Supreme Court of India7,500/-1000/-8,500/-Total???12,950/-10. The Chief Manager stated in the affidavit that no bill was raised by the counsel for the bank for conducting the matter before the National Consumer Dispute Redressal Commission. We have not been told how much money has been spent by the bank officers for their to and fro journeys to the lawyers’ office, to the District Forum, State Forum, National Commission and to the Supreme Court. For a paltry amount of Rs.15000/-, even according to the affidavit, bank has already spent a total amount of Rs.12,950/- leaving aside the time spent and other miscellaneous expenses spent by the officers of the bank for to and fro expenses etc. Further, it may be noted that the District Forum had awarded Rs.3,000/- towards cost of litigation and compensation for the harassment caused to Smt. Khazani. Adding this amount, the cost goes up to Rs.15,950/-. Remember, the buffalo had died 10 years back, but the litigation is not over, fight is still on for Rs.15,000/-.11. Learned counsel appearing for the bank, Shri Amit Grover, submitted that though the amount involved is not very high but the claim was fake and on inspection by the insurance company, no tag was found on the dead body of the buffalo and hence the insurer was not bound to make good the loss, consequently the bank had to proceed against Smt. Khazani.12. We are of the view that issues raised before us are purely questions of facts examined by the three forums including the National Disputes Redressal Commission and we fail to see what is the important question of law to be decided by the Supreme Court. In our view, these types of litigation should be discouraged and message should also go, otherwise for all trivial and silly matters people will rush to this court. 13. Gramin Bank like the appellant should stand for the benefit of the gramins who sometimes avail of loan for buying buffaloes, to purchase agricultural implements, manure, seeds and so on. Repayment, to a large extent, depends upon the income which they get out of that. Crop failure, due to drought or natural calamities, disease to cattle or their death may cause difficulties to gramins to repay the amount. Rather than coming to their rescue, banks often drive them to litigation leading them extreme penury. Assuming that the bank is right, but once an authority like District Forum takes a view, the bank should graciously accept it rather than going in for further litigation and even to the level of Supreme Court. Driving poor gramins to various litigative forums should be strongly deprecated because they have also to spend large amounts for conducting litigation. We condemn this type of practice, unless the stake is very high or the matter affects large number of persons or affects a general policy of the Bank which has far reaching consequences. | 0[ds]12. We are of the view that issues raised before us are purely questions of facts examined by the three forums including the National Disputes Redressal Commission and we fail to see what is the important question of law to be decided by the Supreme Court. In our view, these types of litigation should be discouraged and message should also go, otherwise for all trivial and silly matters people will rush to this court.Gramin Bank like the appellant should stand for the benefit of the gramins who sometimes avail of loan for buying buffaloes, to purchase agricultural implements, manure, seeds and so on. Repayment, to a large extent, depends upon the income which they get out of that. Crop failure, due to drought or natural calamities, disease to cattle or their death may cause difficulties to gramins to repay the amount. Rather than coming to their rescue, banks often drive them to litigation leading them extreme penury. Assuming that the bank is right, but once an authority like District Forum takes a view, the bank should graciously accept it rather than going in for further litigation and even to the level of Supreme Court. Driving poor gramins to various litigative forums should be strongly deprecated because they have also to spend large amounts for conducting litigation. We condemn this type of practice, unless the stake is very high or the matter affects large number of persons or affects a general policy of the Bank which has far reaching consequences. | 0 | 1,677 | 275 | ### 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:
Forum be complied within one month”. 6. The bank, dissatisfied with the order by the District Forum, filed Appeal No.2404/2007 before State Consumer Disputes Redressal Commission, Haryana, Panchkula. Rejecting the appeal, the appellate forum held as follows: “Admittedly, the complainant had got her buffalo insured with the opposite party no.1 with Tag bearing No.NIA03170. The post mortem report Annexure C-2 which was conducted by the vet. surgeon is a cogent proof with respect to the death of buffalo and in the said report the vet. surgeon had mentioned the Tag number of buffalo as 03170. However, the opposite party No.1 insurance company has denied having received of any Tag with the claim form submitted by the complainant. As per noting given by the field officer of the opposite party No.1, the buffalo was lying dead and there was no Tag in the ear of the dead buffalo. Thus, the burden shift on the opposite party No.2 that the Tag was not sent to the appellant – opposite Party No.1 for settling the claim in respect of the buffalo.” 7. The matter did not end there. The bank again moved the National Consumer Disputes Redressal Commission, New Delhi against the order dated 21.07.2009 passed by the State Commission, Haryana by filing a Revision Petition No. 4098 of 2009. The National Commission dismissed the Revision on 25.11.2009 stating as follows: “Finding recorded by the State Commission is a finding of fact, which cannot be interfered with in exercise of Revisional jurisdiction. Under Section 21 of the Consumer Protection Act, 1986, the National Commission, in revision, can interfere with the orders only if it appears that the Authority below has exercised a jurisdiction not vested in it by law or has failed to exercise a jurisdiction so vested or has acted in the exercise of its jurisdiction illegally or with material irregularity.We find no error/irregularity in the exercise of jurisdiction by the State Commission in its impugned order. Dismissed.” 8. The bank, still not satisfied, thought of bringing Smt. Khazani to the Supreme Court and filed the present Special Leave Petition against the order of the National Commission. Luckily, they got notice on the Special Leave Petition and Smt. Khazani has been brought to this Court. May be due to the ill-luck of the bank, the matter is before us. When the matter came up for hearing on 09.07.2012, we asked the counsel for the bank as to how much amount they had spent till date on this dispute which relates to the death of a buffalo, stake of which is only 15,000/-. We passed an order on 09.07.2012 which reads as follows: “We find that the dispute is only with regard to Rs.15,000/- and the matter has still been brought to Supreme Court.Bank will file affidavit within four weeks with regard to the amount spent for this litigation.List after four weeks.” 9. The Chief Manager of the bank in compliance with this order filed an affidavit with regard to the amount spent for litigation so far in a chart form which is reproduced hereunder:S.No.Forum/CourtsAmount of Legal FeesMisc. expensesTotal1.In District Forum2,200/-200/-2,400/-2.In State Forum1,750/-300/-2,050/-3.In Supreme Court of India7,500/-1000/-8,500/-Total???12,950/-10. The Chief Manager stated in the affidavit that no bill was raised by the counsel for the bank for conducting the matter before the National Consumer Dispute Redressal Commission. We have not been told how much money has been spent by the bank officers for their to and fro journeys to the lawyers’ office, to the District Forum, State Forum, National Commission and to the Supreme Court. For a paltry amount of Rs.15000/-, even according to the affidavit, bank has already spent a total amount of Rs.12,950/- leaving aside the time spent and other miscellaneous expenses spent by the officers of the bank for to and fro expenses etc. Further, it may be noted that the District Forum had awarded Rs.3,000/- towards cost of litigation and compensation for the harassment caused to Smt. Khazani. Adding this amount, the cost goes up to Rs.15,950/-. Remember, the buffalo had died 10 years back, but the litigation is not over, fight is still on for Rs.15,000/-.11. Learned counsel appearing for the bank, Shri Amit Grover, submitted that though the amount involved is not very high but the claim was fake and on inspection by the insurance company, no tag was found on the dead body of the buffalo and hence the insurer was not bound to make good the loss, consequently the bank had to proceed against Smt. Khazani.12. We are of the view that issues raised before us are purely questions of facts examined by the three forums including the National Disputes Redressal Commission and we fail to see what is the important question of law to be decided by the Supreme Court. In our view, these types of litigation should be discouraged and message should also go, otherwise for all trivial and silly matters people will rush to this court. 13. Gramin Bank like the appellant should stand for the benefit of the gramins who sometimes avail of loan for buying buffaloes, to purchase agricultural implements, manure, seeds and so on. Repayment, to a large extent, depends upon the income which they get out of that. Crop failure, due to drought or natural calamities, disease to cattle or their death may cause difficulties to gramins to repay the amount. Rather than coming to their rescue, banks often drive them to litigation leading them extreme penury. Assuming that the bank is right, but once an authority like District Forum takes a view, the bank should graciously accept it rather than going in for further litigation and even to the level of Supreme Court. Driving poor gramins to various litigative forums should be strongly deprecated because they have also to spend large amounts for conducting litigation. We condemn this type of practice, unless the stake is very high or the matter affects large number of persons or affects a general policy of the Bank which has far reaching consequences.
### Response:
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### Explanation:
12. We are of the view that issues raised before us are purely questions of facts examined by the three forums including the National Disputes Redressal Commission and we fail to see what is the important question of law to be decided by the Supreme Court. In our view, these types of litigation should be discouraged and message should also go, otherwise for all trivial and silly matters people will rush to this court.Gramin Bank like the appellant should stand for the benefit of the gramins who sometimes avail of loan for buying buffaloes, to purchase agricultural implements, manure, seeds and so on. Repayment, to a large extent, depends upon the income which they get out of that. Crop failure, due to drought or natural calamities, disease to cattle or their death may cause difficulties to gramins to repay the amount. Rather than coming to their rescue, banks often drive them to litigation leading them extreme penury. Assuming that the bank is right, but once an authority like District Forum takes a view, the bank should graciously accept it rather than going in for further litigation and even to the level of Supreme Court. Driving poor gramins to various litigative forums should be strongly deprecated because they have also to spend large amounts for conducting litigation. We condemn this type of practice, unless the stake is very high or the matter affects large number of persons or affects a general policy of the Bank which has far reaching consequences.
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State of Uttar Pradesh Vs. Satya Narain Prasad | Sikri, J.1. This appeal by special leave is directed against the judgment of the High Court of Judicature at Allahabad in Second Appeal No. 81 of 1957, whereby the High Court (S. N. Katju, J.) allowed the appeal, set aside the decree of the court below and decreed the suit in terms of the decree passed by the Trial Court.2. A very short point arises in this appeal and this is whether the notice dated July 22, 1953, which we will reproduce presently, was in compliance with the provisions of Section 10 of the Northern India Ferries Act, 1878-hereinafter referred to as the Act.3. In order to appreciate the points raised before us it is necessary to give a few facts. Satya Narain Prasad, respondent before us, was granted a lease of Qazi Tolla Ferry for the three years on October 18, 1951. The agreed rent was Rs. 46,500/-. Before the date of the expiry of the lease, G. D. Mathur, Executive Engineer, Banaras Provisional Division, gave a notice to the respondent, dated July 22, 1953, in the following terms:"Subject - Lease of Qazitola Ferryn. Notice is hereby given to you under Section 10 of the Northern India Ferries Act and included as Clause 14 of your lease agreement that on expiry of six months notice from today, the lease of the above mentioned ferry in your favour as lessee will be terminated."4. Section 10 of the Act, referred to in the notice, reads as follows:"The State Government may cancel the lease of the tolls of any public ferry on the expiry of six months notice in writing to the lessee of its intention to cancel such lease. When any lease is cancelled under this section, the Magistrate of the District in which such ferry is situate shall pay to the lessee such compensation as such Magistrate may, with the previous sanction of the State Government, award."The notice expired on January 21, 1954, and on February 17, 1954,the notice terminating the lease under Section 10 was given. In the meantime, the respondent had given a notice under Section 80, C. P. C., and on February 18, 1954, he filed a suit challenging the order of termination of the lease. The plaintiff had prayed for a permanent injunction restraining the State from determining the lease and taking over possessing of the Qazitolla Ferry.5. The Trial Court decreed the suit. The State appealed and the Civil Judge, Gazipur, allowed the appeal and dismissed the suit.6. The High Court held that the notice dated July 22, 1953, did not comply with the provisions of Section 10 of the Act. Katju, J. observed:"There must be a notice in writing saying that the lease shall be cancelled after the expiry of six months from the date of the notice. Furthermore, the notice must show that it is the intention of the State Government that lease should be cancelled after the expiry of six months. It is manifest that the notice on the face of it should show that the State Government intends that the lease shall be terminated after the expiry of six months from the date of the notice. In the notice given by the Sri G. D. Mathur, there is nothing to indicate that the State Government had decided that the lease should be cancelled. The notice on the face of it shows that it was given by the Executive Engineer. It was open to the appellant to interpret the notice to mean that the Executive Engineer desired to terminate the lease and it did not show that the State Government also intended that the lease should be terminated."7. In construing Section 10 of the Act it has to be borne in mind that it deals with the cancellation of a lease of tolls of a public ferry. In other words, once the notice is effective valuable rights of a lessee come to an end. This is recognised by the Legislature by providing a six months notice. This period is given so that he can wind up this particular business. In this context the notice of intention to cancel the lease cannot be an empty formality. The notice must be such that the lease can safely act upon it and regulate his affairs.It follows from this that the notice must on the face of it comply with all the requirements of Section 10. The first requisite of a valid notice under Section 10 is that it must express the intention of the Government. The body of the notice in this case does not do so.It is urged that the notice is signed by G. D. Mathur, Executive Engineer, and mentions Section 10 of the Act, and these facts should have led the lessee to conclude that the Executive Engineer was expressing Governments intention.It is not disputed that Government can authorise an officer, either by a general order or a special order to give a notice of Governments intention. But in that event, the officer should say so in the notice. An officer of a Government has no general authority to act on its behalf. Even if he holds out on behalf of the Government that he has the right to do a particular thing, the right must in fact exist. It cannot be that the lessee must speculate at his perils as to what is the true position. It seems to us that in view of these considerations a notice under Section 10 of the Act must on its face show that what is being conveyed is Governments intention to cancel a lease and that it is being conveyed either by Government itself or an officer duly authorised on its behalf.8. It is urged that this particular ground was not mentioned in the plaint. But the validity of the notice was challenged and it is not necessary that every legal ground of challenge should have been stated in the plaint. | 0[ds]7. In construing Section 10 of the Act it has to be borne in mind that it deals with the cancellation of a lease of tolls of a public ferry. In other words, once the notice is effective valuable rights of a lessee come to an end. This is recognised by the Legislature by providing a six months notice. This period is given so that he can wind up this particular business. In this context the notice of intention to cancel the lease cannot be an empty formality. The notice must be such that the lease can safely act upon it and regulate his affairs.It follows from this that the notice must on the face of it comply with all the requirements of Section 10. The first requisite of a valid notice under Section 10 is that it must express the intention of the Government. The body of the notice in this case does not dois not disputed that Government can authorise an officer, either by a general order or a special order to give a notice of Governments intention. But in that event, the officer should say so in the notice. An officer of a Government has no general authority to act on its behalf. Even if he holds out on behalf of the Government that he has the right to do a particular thing, the right must in fact exist. It cannot be that the lessee must speculate at his perils as to what is the true position. It seems to us that in view of these considerations a notice under Section 10 of the Act must on its face show that what is being conveyed is Governments intention to cancel a lease and that it is being conveyed either by Government itself or an officer duly authorised on its behalf.8. It is urged that this particular ground was not mentioned in the plaint. But the validity of the notice was challenged and it is not necessary that every legal ground of challenge should have been stated in the plaint. | 0 | 1,094 | 368 | ### 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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Sikri, J.1. This appeal by special leave is directed against the judgment of the High Court of Judicature at Allahabad in Second Appeal No. 81 of 1957, whereby the High Court (S. N. Katju, J.) allowed the appeal, set aside the decree of the court below and decreed the suit in terms of the decree passed by the Trial Court.2. A very short point arises in this appeal and this is whether the notice dated July 22, 1953, which we will reproduce presently, was in compliance with the provisions of Section 10 of the Northern India Ferries Act, 1878-hereinafter referred to as the Act.3. In order to appreciate the points raised before us it is necessary to give a few facts. Satya Narain Prasad, respondent before us, was granted a lease of Qazi Tolla Ferry for the three years on October 18, 1951. The agreed rent was Rs. 46,500/-. Before the date of the expiry of the lease, G. D. Mathur, Executive Engineer, Banaras Provisional Division, gave a notice to the respondent, dated July 22, 1953, in the following terms:"Subject - Lease of Qazitola Ferryn. Notice is hereby given to you under Section 10 of the Northern India Ferries Act and included as Clause 14 of your lease agreement that on expiry of six months notice from today, the lease of the above mentioned ferry in your favour as lessee will be terminated."4. Section 10 of the Act, referred to in the notice, reads as follows:"The State Government may cancel the lease of the tolls of any public ferry on the expiry of six months notice in writing to the lessee of its intention to cancel such lease. When any lease is cancelled under this section, the Magistrate of the District in which such ferry is situate shall pay to the lessee such compensation as such Magistrate may, with the previous sanction of the State Government, award."The notice expired on January 21, 1954, and on February 17, 1954,the notice terminating the lease under Section 10 was given. In the meantime, the respondent had given a notice under Section 80, C. P. C., and on February 18, 1954, he filed a suit challenging the order of termination of the lease. The plaintiff had prayed for a permanent injunction restraining the State from determining the lease and taking over possessing of the Qazitolla Ferry.5. The Trial Court decreed the suit. The State appealed and the Civil Judge, Gazipur, allowed the appeal and dismissed the suit.6. The High Court held that the notice dated July 22, 1953, did not comply with the provisions of Section 10 of the Act. Katju, J. observed:"There must be a notice in writing saying that the lease shall be cancelled after the expiry of six months from the date of the notice. Furthermore, the notice must show that it is the intention of the State Government that lease should be cancelled after the expiry of six months. It is manifest that the notice on the face of it should show that the State Government intends that the lease shall be terminated after the expiry of six months from the date of the notice. In the notice given by the Sri G. D. Mathur, there is nothing to indicate that the State Government had decided that the lease should be cancelled. The notice on the face of it shows that it was given by the Executive Engineer. It was open to the appellant to interpret the notice to mean that the Executive Engineer desired to terminate the lease and it did not show that the State Government also intended that the lease should be terminated."7. In construing Section 10 of the Act it has to be borne in mind that it deals with the cancellation of a lease of tolls of a public ferry. In other words, once the notice is effective valuable rights of a lessee come to an end. This is recognised by the Legislature by providing a six months notice. This period is given so that he can wind up this particular business. In this context the notice of intention to cancel the lease cannot be an empty formality. The notice must be such that the lease can safely act upon it and regulate his affairs.It follows from this that the notice must on the face of it comply with all the requirements of Section 10. The first requisite of a valid notice under Section 10 is that it must express the intention of the Government. The body of the notice in this case does not do so.It is urged that the notice is signed by G. D. Mathur, Executive Engineer, and mentions Section 10 of the Act, and these facts should have led the lessee to conclude that the Executive Engineer was expressing Governments intention.It is not disputed that Government can authorise an officer, either by a general order or a special order to give a notice of Governments intention. But in that event, the officer should say so in the notice. An officer of a Government has no general authority to act on its behalf. Even if he holds out on behalf of the Government that he has the right to do a particular thing, the right must in fact exist. It cannot be that the lessee must speculate at his perils as to what is the true position. It seems to us that in view of these considerations a notice under Section 10 of the Act must on its face show that what is being conveyed is Governments intention to cancel a lease and that it is being conveyed either by Government itself or an officer duly authorised on its behalf.8. It is urged that this particular ground was not mentioned in the plaint. But the validity of the notice was challenged and it is not necessary that every legal ground of challenge should have been stated in the plaint.
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### Explanation:
7. In construing Section 10 of the Act it has to be borne in mind that it deals with the cancellation of a lease of tolls of a public ferry. In other words, once the notice is effective valuable rights of a lessee come to an end. This is recognised by the Legislature by providing a six months notice. This period is given so that he can wind up this particular business. In this context the notice of intention to cancel the lease cannot be an empty formality. The notice must be such that the lease can safely act upon it and regulate his affairs.It follows from this that the notice must on the face of it comply with all the requirements of Section 10. The first requisite of a valid notice under Section 10 is that it must express the intention of the Government. The body of the notice in this case does not dois not disputed that Government can authorise an officer, either by a general order or a special order to give a notice of Governments intention. But in that event, the officer should say so in the notice. An officer of a Government has no general authority to act on its behalf. Even if he holds out on behalf of the Government that he has the right to do a particular thing, the right must in fact exist. It cannot be that the lessee must speculate at his perils as to what is the true position. It seems to us that in view of these considerations a notice under Section 10 of the Act must on its face show that what is being conveyed is Governments intention to cancel a lease and that it is being conveyed either by Government itself or an officer duly authorised on its behalf.8. It is urged that this particular ground was not mentioned in the plaint. But the validity of the notice was challenged and it is not necessary that every legal ground of challenge should have been stated in the plaint.
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M/s. Bejoy Lakshmi Cotton Mills Ltd Vs. State of West Bengal & Others | a development scheme, and at subsequent stages. The Land Planning Committee set up under the Act, does not come into the picture, at the stage when the Government issues a notification, under S. 4 of the Act. In this connection, it is necessary to note that the expression notified area, under S. 2 (c) of the Act, means an area declared, under sub-s. (1) of S. 4, to be a notified area. The State Government is given power under S. 4, by issue of a notification in the Gazette, to declare any area, specified in the notification, to be a notified area, if it is satisfied that any land, in such area, is needed or is likely to be needed, for any public purpose. There is no provision, either under the Act or the rules framed thereunder, making it obligatory on the part of the State Government to consult the Land Planning Committee at this stage. Nor are we able to find any provision, in the Act or the Rules, which gives a right to the Land Planning Committee to be consulted, or to propose any case, before a notification is issued by the Government, under S. 4 of the Act. There is no duty imposed, or function assigned, to the Land Planning Committee, either under the Act or the Rules, to participate at this stage.25. No doubt, Mr. Bishan Narain, in this connection, referred us to the proceedings, dated January 21, 1955, of the 270th Meeting of the Land Planning Committee, as supporting his contention that it is the Land Planning Committee that has proposed the acquisition of the lands in question under the Act, and, therefore, the matter comes under Item 18 of Standing Order No 2. In the proceedings, referred to by learned counsel, it is stated that the Planning Committee considered a proposal submitted by the third respondent herein, for acquisition and development of 28.59 acres of land, in the villages of Ghola and Natagarh. There is also a recommendation, by the Land Planning Committee, that the land, referred to by the third respondent, is needed for a public purpose and, therefore, it recommended that a notification, under S. 4 of the Act, be issued. No doubt, it is seen that the Land Planning Committee has taken some interest in this matter and supported the proposal of the third respondent regarding the acquisition. But, the question is, as to whether it is one of the duties or functions of the Land Planning Committee, which it is bound to discharge, either under the Act or the Rules. The answer, in our view, must be in the negative.A reference to the Act and the Rules would show that there is no such right given to the Land Planning Committee. It may be that that Committee advises the Government on particular matters or makes suggestions to the Government. The Government may also consult that body and act on its advise or suggestions. But, before Item No. 18 of Standing Order No. 2 can be made applicable, it must be established that there is a duty or an obligation, on the Government to issue a notification, under S. 4 of the Act only in consultation with the Land Planning Committee, in which case, it may be stated that the Committee is discharging a duty under the Act. We do not find any such provision making it obligatory, on the part of the Government, to consult the Land Planning Committee, at that stage. The terms of S. 4 also make it clear that it is really on the satisfaction of the Government, that any land is needed or is likely to be needed for a public purpose, that a notification is issued, declaring that area to be a notified area.26. The Act and the Rules clearly show that from the stage of S.5, when the prescribed authority, viz., the Land Planning Committee, is directed to prepare a development scheme by the State Government, the said Committee is discharging its statutory functions, under the Act.27. To sum up, we are not inclined, to accept the contentions of the appellant, that the issue of a notification, under S.4 of the Act, is a matter which should have been dealt with by the Minister-in-charge himself, on the basis that it is covered by Item 18 of Standing Order No. 2. That item does not as pointed out above, apply. If that is so, it is clear that the issue of a notification, under S. 4 of the Act, and the satisfaction to be arrived at, that the land, in the area in question, is required or is likely to be required for a public purpose, are matters which do not require to be dealt with by the Minister himself. Under Standing Order No.5 the Minister-in charge has authorised the Secretary to permit a Deputy or an Assistant Secretary of the Department, to dispose of certain types of cases and the Secretary has also issued an order, which has been referred to earlier, in conformity with Standing Order No. 5 and it is by virtue of this provision that the notification, under S. 4, was issued by the Assistant Secretary, Land and Revenue Department, Government of West Bengal. We are in entire agreement with the reasons given by the Division Bench of the Calcutta High Court for upholding the validity of the notification, dated February 4, 1955, issued, under S. 4 of the Act.28. Before we conclude, we should also make it clear that, in this case no contention was advanced that matters connected with the issue of a notification, under S. 4 of the Act cannot be delegated by the Minister-in-charge and that they have to be dealt with by the Minister himself. We had, therefore no occasion to consider this aspect of the matter. As pointed out above the entire arguments have proceeded on the basis that there has been no such delegation, by the Minister, under the Standing Orders made by him.29. | 0[ds]We are also in agreement with the views expressed by the High Court that the Governors personal satisfaction was not necessary in this case as, this is not an item of business, with respect to which, the Governor is, by or under the Constitution, required to act in his discretion. Although the executive Government of a State is vested in the Governor, actually it is carried on by Ministers; and, in this particular case, under Rr. 4 and 5 of the Rules of Business, referred to above, the business of Government is to be transacted in the various departments specified in the First Schedule thereof. Item, 5 therein is the Department of Land and Land Revenue and the Governor has allotted the business of that Department to a Minister. We are further in agreement with the views of the High Court that the said Minister-in-charge, has got power to make Standing Orders regarding the disposal of cases, in his Department, under the Rules of Business issued by the Governor on August 25, 1951, under Article 166 (3) of the Constitution. In this case, there is no controversy that the Minister-in-charge, of the Department of Land and Land Revenue, has made Standing Orders on November 29, 1951, by virtue of powers given to him under Rr. 19 and 20 of the Rules ofdue regard to the Act and the Rules, and the matter dealt with by Item No. 18, we are in agreement with the views expressed by the learned Judges of the Division Bench that item No. 18 of Standing Order No. 2, does not apply to proceedings connected with the issue of a notification, under S. 4 of the Act.To sum up, we are not inclined, to accept the contentions of the appellant, that the issue of a notification, under S.4 of the Act, is a matter which should have been dealt with by the Minister-in-charge himself, on the basis that it is covered by Item 18 of Standing Order No. 2. That item does not as pointed out above, apply. If that is so, it is clear that the issue of a notification, under S. 4 of the Act, and the satisfaction to be arrived at, that the land, in the area in question, is required or is likely to be required for a public purpose, are matters which do not require to be dealt with by the Minister himself. Under Standing Order No.5 the Minister-in charge has authorised the Secretary to permit a Deputy or an Assistant Secretary of the Department, to dispose of certain types of cases and the Secretary has also issued an order, which has been referred to earlier, in conformity with Standing Order No. 5 and it is by virtue of this provision that the notification, under S. 4, was issued by the Assistant Secretary, Land and Revenue Department, Government of West Bengal. We are in entire agreement with the reasons given by the Division Bench of the Calcutta High Court for upholding the validity of the notification, dated February 4, 1955, issued, under S. 4 of the Act.Before we conclude, we should also make it clear that, in this case no contention was advanced that matters connected with the issue of a notification, under S. 4 of the Act cannot be delegated by the Minister-in-charge and that they have to be dealt with by the Minister himself. We had, therefore no occasion to consider this aspect of the matter. As pointed out above the entire arguments have proceeded on the basis that there has been no such delegation, by the Minister, under the Standing Orders made by him. | 0 | 7,531 | 688 | ### Instruction:
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a development scheme, and at subsequent stages. The Land Planning Committee set up under the Act, does not come into the picture, at the stage when the Government issues a notification, under S. 4 of the Act. In this connection, it is necessary to note that the expression notified area, under S. 2 (c) of the Act, means an area declared, under sub-s. (1) of S. 4, to be a notified area. The State Government is given power under S. 4, by issue of a notification in the Gazette, to declare any area, specified in the notification, to be a notified area, if it is satisfied that any land, in such area, is needed or is likely to be needed, for any public purpose. There is no provision, either under the Act or the rules framed thereunder, making it obligatory on the part of the State Government to consult the Land Planning Committee at this stage. Nor are we able to find any provision, in the Act or the Rules, which gives a right to the Land Planning Committee to be consulted, or to propose any case, before a notification is issued by the Government, under S. 4 of the Act. There is no duty imposed, or function assigned, to the Land Planning Committee, either under the Act or the Rules, to participate at this stage.25. No doubt, Mr. Bishan Narain, in this connection, referred us to the proceedings, dated January 21, 1955, of the 270th Meeting of the Land Planning Committee, as supporting his contention that it is the Land Planning Committee that has proposed the acquisition of the lands in question under the Act, and, therefore, the matter comes under Item 18 of Standing Order No 2. In the proceedings, referred to by learned counsel, it is stated that the Planning Committee considered a proposal submitted by the third respondent herein, for acquisition and development of 28.59 acres of land, in the villages of Ghola and Natagarh. There is also a recommendation, by the Land Planning Committee, that the land, referred to by the third respondent, is needed for a public purpose and, therefore, it recommended that a notification, under S. 4 of the Act, be issued. No doubt, it is seen that the Land Planning Committee has taken some interest in this matter and supported the proposal of the third respondent regarding the acquisition. But, the question is, as to whether it is one of the duties or functions of the Land Planning Committee, which it is bound to discharge, either under the Act or the Rules. The answer, in our view, must be in the negative.A reference to the Act and the Rules would show that there is no such right given to the Land Planning Committee. It may be that that Committee advises the Government on particular matters or makes suggestions to the Government. The Government may also consult that body and act on its advise or suggestions. But, before Item No. 18 of Standing Order No. 2 can be made applicable, it must be established that there is a duty or an obligation, on the Government to issue a notification, under S. 4 of the Act only in consultation with the Land Planning Committee, in which case, it may be stated that the Committee is discharging a duty under the Act. We do not find any such provision making it obligatory, on the part of the Government, to consult the Land Planning Committee, at that stage. The terms of S. 4 also make it clear that it is really on the satisfaction of the Government, that any land is needed or is likely to be needed for a public purpose, that a notification is issued, declaring that area to be a notified area.26. The Act and the Rules clearly show that from the stage of S.5, when the prescribed authority, viz., the Land Planning Committee, is directed to prepare a development scheme by the State Government, the said Committee is discharging its statutory functions, under the Act.27. To sum up, we are not inclined, to accept the contentions of the appellant, that the issue of a notification, under S.4 of the Act, is a matter which should have been dealt with by the Minister-in-charge himself, on the basis that it is covered by Item 18 of Standing Order No. 2. That item does not as pointed out above, apply. If that is so, it is clear that the issue of a notification, under S. 4 of the Act, and the satisfaction to be arrived at, that the land, in the area in question, is required or is likely to be required for a public purpose, are matters which do not require to be dealt with by the Minister himself. Under Standing Order No.5 the Minister-in charge has authorised the Secretary to permit a Deputy or an Assistant Secretary of the Department, to dispose of certain types of cases and the Secretary has also issued an order, which has been referred to earlier, in conformity with Standing Order No. 5 and it is by virtue of this provision that the notification, under S. 4, was issued by the Assistant Secretary, Land and Revenue Department, Government of West Bengal. We are in entire agreement with the reasons given by the Division Bench of the Calcutta High Court for upholding the validity of the notification, dated February 4, 1955, issued, under S. 4 of the Act.28. Before we conclude, we should also make it clear that, in this case no contention was advanced that matters connected with the issue of a notification, under S. 4 of the Act cannot be delegated by the Minister-in-charge and that they have to be dealt with by the Minister himself. We had, therefore no occasion to consider this aspect of the matter. As pointed out above the entire arguments have proceeded on the basis that there has been no such delegation, by the Minister, under the Standing Orders made by him.29.
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We are also in agreement with the views expressed by the High Court that the Governors personal satisfaction was not necessary in this case as, this is not an item of business, with respect to which, the Governor is, by or under the Constitution, required to act in his discretion. Although the executive Government of a State is vested in the Governor, actually it is carried on by Ministers; and, in this particular case, under Rr. 4 and 5 of the Rules of Business, referred to above, the business of Government is to be transacted in the various departments specified in the First Schedule thereof. Item, 5 therein is the Department of Land and Land Revenue and the Governor has allotted the business of that Department to a Minister. We are further in agreement with the views of the High Court that the said Minister-in-charge, has got power to make Standing Orders regarding the disposal of cases, in his Department, under the Rules of Business issued by the Governor on August 25, 1951, under Article 166 (3) of the Constitution. In this case, there is no controversy that the Minister-in-charge, of the Department of Land and Land Revenue, has made Standing Orders on November 29, 1951, by virtue of powers given to him under Rr. 19 and 20 of the Rules ofdue regard to the Act and the Rules, and the matter dealt with by Item No. 18, we are in agreement with the views expressed by the learned Judges of the Division Bench that item No. 18 of Standing Order No. 2, does not apply to proceedings connected with the issue of a notification, under S. 4 of the Act.To sum up, we are not inclined, to accept the contentions of the appellant, that the issue of a notification, under S.4 of the Act, is a matter which should have been dealt with by the Minister-in-charge himself, on the basis that it is covered by Item 18 of Standing Order No. 2. That item does not as pointed out above, apply. If that is so, it is clear that the issue of a notification, under S. 4 of the Act, and the satisfaction to be arrived at, that the land, in the area in question, is required or is likely to be required for a public purpose, are matters which do not require to be dealt with by the Minister himself. Under Standing Order No.5 the Minister-in charge has authorised the Secretary to permit a Deputy or an Assistant Secretary of the Department, to dispose of certain types of cases and the Secretary has also issued an order, which has been referred to earlier, in conformity with Standing Order No. 5 and it is by virtue of this provision that the notification, under S. 4, was issued by the Assistant Secretary, Land and Revenue Department, Government of West Bengal. We are in entire agreement with the reasons given by the Division Bench of the Calcutta High Court for upholding the validity of the notification, dated February 4, 1955, issued, under S. 4 of the Act.Before we conclude, we should also make it clear that, in this case no contention was advanced that matters connected with the issue of a notification, under S. 4 of the Act cannot be delegated by the Minister-in-charge and that they have to be dealt with by the Minister himself. We had, therefore no occasion to consider this aspect of the matter. As pointed out above the entire arguments have proceeded on the basis that there has been no such delegation, by the Minister, under the Standing Orders made by him.
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Jitendra Bahadur Singh Vs. Krishna Behari & Ors | for any counting table but the returning officer did not accept their appointment.Under S.47 of the Representation of the People Act, 1951, a contesting candidate or his election agent may appoint in the prescribed manner one or more persons but not exceeding such number as may as be prescribed by the rules, to be present as his counting agent or agents at the counting of votes and when any such appointment is made notice of the appointment shall be given in the prescribed manner to the returning officer. Rules framed under that Act prescribe the number of counting agents that a candidate may appoint. The form of the notice required to be given under Section 47 of the Act is given in the rules. The appointment of the counting agents is to be made in the prescribed form in duplicate, one copy of which is to be forwarded to the returning officer while the other copy should be made over to the counting agent. Rules also provide that no counting agent shall be admitted into the place fixed for counting unless he has delivered to the returning officer the second copy of the instrument of his appointment after duly completing and signing the declaration contained therein. The petitioner did not state in the election petition that any of the counting agents appointed by the congress candidate or his election agent in accordance with the rules had been refused admission to the place of counting.Hence the allegation that the returning officer did not permit enough number of counting agents to be appointed is not supported by any statement of facts necessary to be stated. In other words the materials facts relating to the allegations made have not been stated.10. Now coming to the rejection of the votes polled in favour of the congress nominee, under the rules before a vote is rejected the agents of the candidates must be permitted to examine the concerned ballot paper. Therefore it was quite easy for them to note down the serial number of the concerned ballot papers. The election petition is silent as to the inspection of the ballot papers or whether the counting agents had noted down the serial numbers of those ballot papers or whether those agents raised any objection relating to the validity of those ballot papers; if so who those agents are and what are the serial numbers of the ballot papers to which each one of them advanced their objections. These again are the material facts required to be stated.11. As seen earlier the allegations made in the election petition are purported to have been founded on the information given by others. No one takes direct responsibility for those allegations. No oral evidence was given in support of them, not even affidavits were filed in support of the allegation. The scrutiny of ballot papers was sought on the basis of assertions which were neither accompanied by a statement of material facts nor supported by any evidence.12. The trial court correctly came to the conclusion that before an order of inspection of the ballot papers can be made it must be prima facie satisfied that in order to decide the dispute and to do complete justice between the parties, inspection of the ballot papers is necessary. It did say that it was so satisfied but it gave no reasons whatsoever as to how it came to be satisfied. A judge can be satisfied only on the basis of proof and not on the basis of mere allegations. There is absolutely no proof in this case to support the allegations on the basis of which the scrutiny of the ballot papers was prayed for. The trial court did not mention in its order even a single reason in support of its satisfaction as to the need for inspecting the ballot papers. Every judicial order must be based on reasons and those reasons must be disclosed in the order itself. Unfortunately the learned trail judge had overlooked the importance to be attached to the secrecy of the ballot papers.13. We have earlier referred to the principles enunciated by this Court to be followed before ordering the scrutiny of ballot papers. The legal position in England is the same as in this country. In fact our election law is patterned on the basis of the English Election Law. In Halsburys Laws of England (Vol 14 at page 310, paragraph 559), it is observed:"The usual practice is for an application for a recount to be made by summons to a judge on the rota for the trial of parliamentary election petitions before the trial on an affidavit showing the grounds on which the application is based. A recount is not granted as of right, but on evidence of good grounds for believing that there has been a mistake on the part of the returning officer".In Rogers on Elections (Vol. II at p. 199), it is observed that an application for recount should be made by summons supported by affidavits showing grounds. Fraser in his Law of Parliamentary Elections and Election Petitions observes at page 222:"A strong case must be made on affidavit before an order can be obtained for inspection of ballot papers or counterfoils."Even before the Representation of the People Act, 1951 was enacted the law in this country relating to inspection of ballot papers was as stated earlier. The election tribunals in this country have refused to permit the scrutiny of ballot papers unless there was prima facie evidence in support of the allegations made in the election petition - See Tanjore, N. M. R. (Hammonds Election Cases 673); Punjab North Case (Hammonds Election Cases 569). Karnal Mohammadan Constituency Case (2, Doabia 235); Karnal (South) General Constituency Case (2, Doabia 80); Chingleput Case (Hammonds Election Cases 307); See also R. Swaminaths Case, ((1952) 2 E. L. R. 51); Seshaiah v. Koti Reddy, ((1953) 3 E. L. R. 39) and Lakshumanaya v. Rajam Aiyar, 58 Made LJ 118 = (AIR 1930 Mad 195). | 1[ds]7. The importance of maintaining the secrecy of ballot papers and the circumstances under which that secrecy can be violated has been considered by this Court in several cases. In particular we may refer to the decisions of this Court in Ram Sewak Yadav v. Hussain Kamil Kidwai, 1964-6 SCR 238 = (AIR 1964 SC 1249 ) and Dr. Jagjit Singh v. Giani Kartar Singh, AIR 1966 SC 773 .These and other decisions of this Court and of the High Courts have laid down certain basic requirements to be satisfied before an election tribunal can permit the inspection of ballot papers. They are:(1) that the petition for setting aside the election must contain an adequate statement of the material facts on which the petitioner relies in support of his case and(2) the tribunal must be prima facie satisfied that in order to decide the dispute and to do complete justice between the parties, inspection of the ballot papers isthe instant case apart from giving certain figures whether true or imaginary, the petitioner has not disclosed in the petition the basis on which he arrived at those figures. His bald assertion that he got those figures from the counting agents of the congress nominee cannot afford the necessary basis. He did not say in the petition who those workers were and what is the basis of their information. It is not his case that they maintained any notes or that he examined their notes, if there were any. The material facts required to be stated are those facts which can be considered as materials supporting the allegations made. In other words they must be such facts as to afford a basis for the allegations made in the petition.The facts stated in paragraph 13 and 14 of the election petition and in Schedule E are mere allegations and are not material facts supporting those allegations. This Court in insisting that the election petitioner should state in the petition the material facts was referring to a point of substance and not of mere form. Unfortunately the trial court has mistaken the form for the substance. The material facts disclosed by the petitioner must afford an adequate basis for the allegations made.9. The learned trial Judge while deciding the point in issue overlooked certain important circumstances. The election petition is silent as regards certain important aspects. This omission has bearing on the point to be decided. The allegation that the returning officer did not permit the appellant more than one counting agent for each counting table is an extremely vague allegation. It is not the election petitioners case that the congress nominee had appointed more than one counting agent for any counting table but the returning officer did not accept their appointment.Under S.47 of the Representation of the People Act, 1951, a contesting candidate or his election agent may appoint in the prescribed manner one or more persons but not exceeding such number as may as be prescribed by the rules, to be present as his counting agent or agents at the counting of votes and when any such appointment is made notice of the appointment shall be given in the prescribed manner to the returning officer. Rules framed under that Act prescribe the number of counting agents that a candidate may appoint. The form of the notice required to be given under Section 47 of the Act is given in the rules. The appointment of the counting agents is to be made in the prescribed form in duplicate, one copy of which is to be forwarded to the returning officer while the other copy should be made over to the counting agent. Rules also provide that no counting agent shall be admitted into the place fixed for counting unless he has delivered to the returning officer the second copy of the instrument of his appointment after duly completing and signing the declaration contained therein. The petitioner did not state in the election petition that any of the counting agents appointed by the congress candidate or his election agent in accordance with the rules had been refused admission to the place of counting.Hence the allegation that the returning officer did not permit enough number of counting agents to be appointed is not supported by any statement of facts necessary to be stated. In other words the materials facts relating to the allegations made have not been stated.The trial court correctly came to the conclusion that before an order of inspection of the ballot papers can be made it must be prima facie satisfied that in order to decide the dispute and to do complete justice between the parties, inspection of the ballot papers is necessary. It did say that it was so satisfied but it gave no reasons whatsoever as to how it came to be satisfied. A judge can be satisfied only on the basis of proof and not on the basis of mere allegations. There is absolutely no proof in this case to support the allegations on the basis of which the scrutiny of the ballot papers was prayed for. The trial court did not mention in its order even a single reason in support of its satisfaction as to the need for inspecting the ballot papers. Every judicial order must be based on reasons and those reasons must be disclosed in the order itself. Unfortunately the learned trail judge had overlooked the importance to be attached to the secrecy of the ballotbefore the Representation of the People Act, 1951 was enacted the law in this country relating to inspection of ballot papers was as stated earlier. The election tribunals in this country have refused to permit the scrutiny of ballot papers unless there was prima facie evidence in support of the allegations made in the election petition - See Tanjore, N. M. R. (Hammonds Election Cases 673); Punjab North Case (Hammonds Election Cases 569). Karnal Mohammadan Constituency Case (2, Doabia 235); Karnal (South) General Constituency Case (2, Doabia 80); Chingleput Case (Hammonds Election Cases 307); See also R. Swaminaths Case, ((1952) 2 E. L. R. 51); Seshaiah v. Koti Reddy, ((1953) 3 E. L. R. 39) and Lakshumanaya v. Rajam Aiyar, 58 Made LJ 118 = (AIR 1930 Madaffidavit of either the congress nominee or his election agent or any of the persons who could have had personal knowledge of the matter was filed in support of that application. No oral evidence has been taken in the case file now. The returned candidate had denied the allegations referred to earlier. It is true that some of the defeated candidates in their written statements have lent support to the allegations made by the election petitioner. The reason for the same is obvious. But even they have not filed any affidavit in support of the concerned allegations. Solely on the basis of the averments made in the election petition and the facts sworn to in the affidavit filed by the election petitioner in support of his application seeking scrutiny of the ballot papers, the trial Court had issued the impugned direction.The learned trial Judge while deciding the point in issue overlooked certain important circumstances. The election petition is silent as regards certain important aspects. This omission has bearing on the point to be decided. The allegation that the returning officer did not permit the appellant more than one counting agent for each counting table is an extremely vague allegation. It is not the election petitioners case that the congress nominee had appointed more than one counting agent for any counting table but the returning officer did not accept their appointment.Under S.47 of the Representation of the People Act, 1951, a contesting candidate or his election agent may appoint in the prescribed manner one or more persons but not exceeding such number as may as be prescribed by the rules, to be present as his counting agent or agents at the counting of votes and when any such appointment is made notice of the appointment shall be given in the prescribed manner to the returning officer. Rules framed under that Act prescribe the number of counting agents that a candidate may appoint. The form of the notice required to be given under Section 47 of the Act is given in the rules. The appointment of the counting agents is to be made in the prescribed form in duplicate, one copy of which is to be forwarded to the returning officer while the other copy should be made over to the counting agent. Rules also provide that no counting agent shall be admitted into the place fixed for counting unless he has delivered to the returning officer the second copy of the instrument of his appointment after duly completing and signing the declaration contained therein. The petitioner did not state in the election petition that any of the counting agents appointed by the congress candidate or his election agent in accordance with the rules had been refused admission to the place of counting.Hence the allegation that the returning officer did not permit enough number of counting agents to be appointed is not supported by any statement of facts necessary to be stated. In other words the materials facts relating to the allegations made have not been stated.Now coming to the rejection of the votes polled in favour of the congress nominee, under the rules before a vote is rejected the agents of the candidates must be permitted to examine the concerned ballot paper. Therefore it was quite easy for them to note down the serial number of the concerned ballot papers. The election petition is silent as to the inspection of the ballot papers or whether the counting agents had noted down the serial numbers of those ballot papers or whether those agents raised any objection relating to the validity of those ballot papers; if so who those agents are and what are the serial numbers of the ballot papers to which each one of them advanced their objections. These again are the material facts required to be stated. | 1 | 2,669 | 1,787 | ### Instruction:
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for any counting table but the returning officer did not accept their appointment.Under S.47 of the Representation of the People Act, 1951, a contesting candidate or his election agent may appoint in the prescribed manner one or more persons but not exceeding such number as may as be prescribed by the rules, to be present as his counting agent or agents at the counting of votes and when any such appointment is made notice of the appointment shall be given in the prescribed manner to the returning officer. Rules framed under that Act prescribe the number of counting agents that a candidate may appoint. The form of the notice required to be given under Section 47 of the Act is given in the rules. The appointment of the counting agents is to be made in the prescribed form in duplicate, one copy of which is to be forwarded to the returning officer while the other copy should be made over to the counting agent. Rules also provide that no counting agent shall be admitted into the place fixed for counting unless he has delivered to the returning officer the second copy of the instrument of his appointment after duly completing and signing the declaration contained therein. The petitioner did not state in the election petition that any of the counting agents appointed by the congress candidate or his election agent in accordance with the rules had been refused admission to the place of counting.Hence the allegation that the returning officer did not permit enough number of counting agents to be appointed is not supported by any statement of facts necessary to be stated. In other words the materials facts relating to the allegations made have not been stated.10. Now coming to the rejection of the votes polled in favour of the congress nominee, under the rules before a vote is rejected the agents of the candidates must be permitted to examine the concerned ballot paper. Therefore it was quite easy for them to note down the serial number of the concerned ballot papers. The election petition is silent as to the inspection of the ballot papers or whether the counting agents had noted down the serial numbers of those ballot papers or whether those agents raised any objection relating to the validity of those ballot papers; if so who those agents are and what are the serial numbers of the ballot papers to which each one of them advanced their objections. These again are the material facts required to be stated.11. As seen earlier the allegations made in the election petition are purported to have been founded on the information given by others. No one takes direct responsibility for those allegations. No oral evidence was given in support of them, not even affidavits were filed in support of the allegation. The scrutiny of ballot papers was sought on the basis of assertions which were neither accompanied by a statement of material facts nor supported by any evidence.12. The trial court correctly came to the conclusion that before an order of inspection of the ballot papers can be made it must be prima facie satisfied that in order to decide the dispute and to do complete justice between the parties, inspection of the ballot papers is necessary. It did say that it was so satisfied but it gave no reasons whatsoever as to how it came to be satisfied. A judge can be satisfied only on the basis of proof and not on the basis of mere allegations. There is absolutely no proof in this case to support the allegations on the basis of which the scrutiny of the ballot papers was prayed for. The trial court did not mention in its order even a single reason in support of its satisfaction as to the need for inspecting the ballot papers. Every judicial order must be based on reasons and those reasons must be disclosed in the order itself. Unfortunately the learned trail judge had overlooked the importance to be attached to the secrecy of the ballot papers.13. We have earlier referred to the principles enunciated by this Court to be followed before ordering the scrutiny of ballot papers. The legal position in England is the same as in this country. In fact our election law is patterned on the basis of the English Election Law. In Halsburys Laws of England (Vol 14 at page 310, paragraph 559), it is observed:"The usual practice is for an application for a recount to be made by summons to a judge on the rota for the trial of parliamentary election petitions before the trial on an affidavit showing the grounds on which the application is based. A recount is not granted as of right, but on evidence of good grounds for believing that there has been a mistake on the part of the returning officer".In Rogers on Elections (Vol. II at p. 199), it is observed that an application for recount should be made by summons supported by affidavits showing grounds. Fraser in his Law of Parliamentary Elections and Election Petitions observes at page 222:"A strong case must be made on affidavit before an order can be obtained for inspection of ballot papers or counterfoils."Even before the Representation of the People Act, 1951 was enacted the law in this country relating to inspection of ballot papers was as stated earlier. The election tribunals in this country have refused to permit the scrutiny of ballot papers unless there was prima facie evidence in support of the allegations made in the election petition - See Tanjore, N. M. R. (Hammonds Election Cases 673); Punjab North Case (Hammonds Election Cases 569). Karnal Mohammadan Constituency Case (2, Doabia 235); Karnal (South) General Constituency Case (2, Doabia 80); Chingleput Case (Hammonds Election Cases 307); See also R. Swaminaths Case, ((1952) 2 E. L. R. 51); Seshaiah v. Koti Reddy, ((1953) 3 E. L. R. 39) and Lakshumanaya v. Rajam Aiyar, 58 Made LJ 118 = (AIR 1930 Mad 195).
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agent in accordance with the rules had been refused admission to the place of counting.Hence the allegation that the returning officer did not permit enough number of counting agents to be appointed is not supported by any statement of facts necessary to be stated. In other words the materials facts relating to the allegations made have not been stated.The trial court correctly came to the conclusion that before an order of inspection of the ballot papers can be made it must be prima facie satisfied that in order to decide the dispute and to do complete justice between the parties, inspection of the ballot papers is necessary. It did say that it was so satisfied but it gave no reasons whatsoever as to how it came to be satisfied. A judge can be satisfied only on the basis of proof and not on the basis of mere allegations. There is absolutely no proof in this case to support the allegations on the basis of which the scrutiny of the ballot papers was prayed for. The trial court did not mention in its order even a single reason in support of its satisfaction as to the need for inspecting the ballot papers. Every judicial order must be based on reasons and those reasons must be disclosed in the order itself. Unfortunately the learned trail judge had overlooked the importance to be attached to the secrecy of the ballotbefore the Representation of the People Act, 1951 was enacted the law in this country relating to inspection of ballot papers was as stated earlier. The election tribunals in this country have refused to permit the scrutiny of ballot papers unless there was prima facie evidence in support of the allegations made in the election petition - See Tanjore, N. M. R. (Hammonds Election Cases 673); Punjab North Case (Hammonds Election Cases 569). Karnal Mohammadan Constituency Case (2, Doabia 235); Karnal (South) General Constituency Case (2, Doabia 80); Chingleput Case (Hammonds Election Cases 307); See also R. Swaminaths Case, ((1952) 2 E. L. R. 51); Seshaiah v. Koti Reddy, ((1953) 3 E. L. R. 39) and Lakshumanaya v. Rajam Aiyar, 58 Made LJ 118 = (AIR 1930 Madaffidavit of either the congress nominee or his election agent or any of the persons who could have had personal knowledge of the matter was filed in support of that application. No oral evidence has been taken in the case file now. The returned candidate had denied the allegations referred to earlier. It is true that some of the defeated candidates in their written statements have lent support to the allegations made by the election petitioner. The reason for the same is obvious. But even they have not filed any affidavit in support of the concerned allegations. Solely on the basis of the averments made in the election petition and the facts sworn to in the affidavit filed by the election petitioner in support of his application seeking scrutiny of the ballot papers, the trial Court had issued the impugned direction.The learned trial Judge while deciding the point in issue overlooked certain important circumstances. The election petition is silent as regards certain important aspects. This omission has bearing on the point to be decided. The allegation that the returning officer did not permit the appellant more than one counting agent for each counting table is an extremely vague allegation. It is not the election petitioners case that the congress nominee had appointed more than one counting agent for any counting table but the returning officer did not accept their appointment.Under S.47 of the Representation of the People Act, 1951, a contesting candidate or his election agent may appoint in the prescribed manner one or more persons but not exceeding such number as may as be prescribed by the rules, to be present as his counting agent or agents at the counting of votes and when any such appointment is made notice of the appointment shall be given in the prescribed manner to the returning officer. Rules framed under that Act prescribe the number of counting agents that a candidate may appoint. The form of the notice required to be given under Section 47 of the Act is given in the rules. The appointment of the counting agents is to be made in the prescribed form in duplicate, one copy of which is to be forwarded to the returning officer while the other copy should be made over to the counting agent. Rules also provide that no counting agent shall be admitted into the place fixed for counting unless he has delivered to the returning officer the second copy of the instrument of his appointment after duly completing and signing the declaration contained therein. The petitioner did not state in the election petition that any of the counting agents appointed by the congress candidate or his election agent in accordance with the rules had been refused admission to the place of counting.Hence the allegation that the returning officer did not permit enough number of counting agents to be appointed is not supported by any statement of facts necessary to be stated. In other words the materials facts relating to the allegations made have not been stated.Now coming to the rejection of the votes polled in favour of the congress nominee, under the rules before a vote is rejected the agents of the candidates must be permitted to examine the concerned ballot paper. Therefore it was quite easy for them to note down the serial number of the concerned ballot papers. The election petition is silent as to the inspection of the ballot papers or whether the counting agents had noted down the serial numbers of those ballot papers or whether those agents raised any objection relating to the validity of those ballot papers; if so who those agents are and what are the serial numbers of the ballot papers to which each one of them advanced their objections. These again are the material facts required to be stated.
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Reliance Cellulose Products Ltd Vs. Collector Of Central Excise, Hyderabad | Moreover, the Tribunal has referred to several technical dictionaries and has concluded that the product sodium carboxymethyl cellulose is an ether. In the background of all these facts, we are unable to uphold the contention that the Tribunal has wrongly concluded that the product manufactured by the appellant falls under Tariff Item 15-A. There is ample evidence and technical literature to support the conclusion of the Tribunal and we are not inclined to interfere with the finding made by the Tribunal at this stage 15. The next contention of the appellant was that the Tribunal has failed to consider the way the products of the appellants were known in the trade. It is well settled that excisable commodities have to be understood in the sense in which the market understands them and have to be classified accordingly. This proposition may generally be held to be right but when a technical or scientific term has been used by the legislature, it must be presumed that the legislature has used the term in their technical sense. Tariff Entry 15-A as it stood after its amendment made on 1-3-1982 was "Regenerated cellulose, cellulose nitrate, cellulose acetate and ethers and other chemical derivatives of cellulose, plasticide or not (for example collodions, celluloid)." 16. Regenerated cellulose, cellulose nitrate, cellulose acetate and ethers as well as other chemicals which were derivatives of cellulose have to be understood in the technical sense of the terms. Moreover, it has not been shown that there is a special meaning given to the product of the appellant in the market 17. In the case of Dunlop India Ltd. v. Union of India it was laid down that in interpreting words in a taxing statute, meaning must be given as people in trade and commerce, conversant with the subject, generally treat and understand them. It was further observed that technical and scientific tests offer guidance only within limits. Once the articles are in circulation and come to be described and known in common parlance, the court should find no difficulty for statutory classification under a particular entry. In that case, it was pointed out that scope of an entry was a matter essentially for determination by the Department. But when extraneous consideration enters the determination, interference by the court was called for. In that case, the dispute was about classification of V.P. Latex. The question was whether V.P. Latex imported by the tyre companies could be classified as rubber in raw state 18. In the case of Indian Cable Co. Ltd. v. CCE it was held that : (SCC p. 615, para 5) "5 .... in construing the relevant item or entry, in fiscal statutes, if it is one of everyday use, the authority concerned must normally, construe it, as to how it is understood in common parlance or in the commercial world or trade circles. It must be given its popular meaning. The meaning given in the dictionary must not prevail. Nor should the entry be understood in any technical or botanical or scientific sense." * 19. A word of caution was added in that judgment at page 615 of the Report which is of significance, "In the case of technical words, it may call for a different approach." 20. In other words, if the word used in a fiscal statute is understood in common parlance or in the commercial world in a particular sense, it must be taken that the Excise Act has used that word in the commonly understood sense. That sense cannot be taken away by attributing a technical meaning to the word. But if the legislature itself has adopted a technical term, then that technical term has to be understood in the technical sense. In other words, if in the fiscal statute, the article in question falls within the ambit of a technical term used under a particular entry, then that article cannot be taken away from that entry and placed under the residuary entry on the pretext that the article, even though it comes within the ambit of the technical term used in a particular entry, has acquired some other meaning in market parlance. For example, if a type of explosive (RDX) is known in the market as Kala Sabun by a section of the people who uses these explosives, the manufacturer or importer of these explosives cannot claim that the explosives must be classified as soap and not as explosive 21. In the case of Chemical and Fibres of India Ltd. v. Union of India 1997 (1) JT 432] the question was whether polymer chips manufactured by the assessee could be classified under Entry 15-A as it stood prior to 28-2-1964 under the heading "Plastics, All Sorts". The Court held that "plastics" was a commercial term and was known in the trade and was used in the trade. The court should not go into the technical analysis of composition and character of a product to decide the nature of the product in preference to the sense in which the market understood it. The court should go by the trade parlance. The Court pointed out that the conclusion drawn by the Court was also supported by the technical literature and dictionaries which were cited before the Court 22. The case before us, is not a case where a commonly understood commercial article like "Plastics" is sought to be given a special meaning by reference to its chemical composition. Cellulose ether has been made specifically taxable under Entry 15-A(1). The product manufactured by the appellant is sodium carboxymethyl cellulose which has been tested and found to be cellulose ether. The question is whether this product will come under Entry 15-A(1). It is not the case of the appellant that this product is known in the market by some other name and that name is to be found in some other entry. The Tribunal was right in holding that SCMC manufactured by the appellant answered the description "Cellulose Ether" and as such was assessable under Entry 15-A(1) | 0[ds]20. In other words, if the word used in a fiscal statute is understood in common parlance or in the commercial world in a particular sense, it must be taken that the Excise Act has used that word in the commonly understood sense. That sense cannot be taken away by attributing a technical meaning to the word. But if the legislature itself has adopted a technical term, then that technical term has to be understood in the technical sense. In other words, if in the fiscal statute, the article in question falls within the ambit of a technical term used under a particular entry, then that article cannot be taken away from that entry and placed under the residuary entry on the pretext that the article, even though it comes within the ambit of the technical term used in a particular entry, has acquired some other meaning in market parlance. For example, if a type of explosive (RDX) is known in the market as Kala Sabun by a section of the people who uses these explosives, the manufacturer or importer of these explosives cannot claim that the explosives must be classified as soap and not as explosive21. In the case of Chemical and Fibres of India Ltd. v. Union of India 1997 (1) JT 432] the question was whether polymer chips manufactured by the assessee could be classified under Entry15Aas it stood prior to4 under the heading "Plastics, All Sorts". The Court held that "plastics" was a commercial term and was known in the trade and was used in the trade. The court should not go into the technical analysis of composition and character of a product to decide the nature of the product in preference to the sense in which the market understood it. The court should go by the trade parlance. The Court pointed out that the conclusion drawn by the Court was also supported by the technical literature and dictionaries which were cited before the Court22. The case before us, is not a case where a commonly understood commercial article like "Plastics" is sought to be given a special meaning by reference to its chemical composition. Cellulose ether has been made specifically taxable under Entry. The product manufactured by the appellant is sodium carboxymethyl cellulose which has been tested and found to be cellulose ether.The question is whether this product will come under Entry22. The case before us, is not a case where a commonly understood commercial article like "Plastics" is sought to be given a special meaning by reference to its chemical composition. Cellulose ether has been made specifically taxable under Entry. The product manufactured by the appellant is sodium carboxymethyl cellulose which has been tested and found to be cellulose ether.The question is whether this product will come under Entry. It is not the case of the appellant that this product is known in the market by some other name and that name is to be found in some other entry. The Tribunal was right in holding that SCMC manufactured by the appellant answered the description "Cellulose Ether" and as such was assessable under Entry | 0 | 3,554 | 573 | ### 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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Moreover, the Tribunal has referred to several technical dictionaries and has concluded that the product sodium carboxymethyl cellulose is an ether. In the background of all these facts, we are unable to uphold the contention that the Tribunal has wrongly concluded that the product manufactured by the appellant falls under Tariff Item 15-A. There is ample evidence and technical literature to support the conclusion of the Tribunal and we are not inclined to interfere with the finding made by the Tribunal at this stage 15. The next contention of the appellant was that the Tribunal has failed to consider the way the products of the appellants were known in the trade. It is well settled that excisable commodities have to be understood in the sense in which the market understands them and have to be classified accordingly. This proposition may generally be held to be right but when a technical or scientific term has been used by the legislature, it must be presumed that the legislature has used the term in their technical sense. Tariff Entry 15-A as it stood after its amendment made on 1-3-1982 was "Regenerated cellulose, cellulose nitrate, cellulose acetate and ethers and other chemical derivatives of cellulose, plasticide or not (for example collodions, celluloid)." 16. Regenerated cellulose, cellulose nitrate, cellulose acetate and ethers as well as other chemicals which were derivatives of cellulose have to be understood in the technical sense of the terms. Moreover, it has not been shown that there is a special meaning given to the product of the appellant in the market 17. In the case of Dunlop India Ltd. v. Union of India it was laid down that in interpreting words in a taxing statute, meaning must be given as people in trade and commerce, conversant with the subject, generally treat and understand them. It was further observed that technical and scientific tests offer guidance only within limits. Once the articles are in circulation and come to be described and known in common parlance, the court should find no difficulty for statutory classification under a particular entry. In that case, it was pointed out that scope of an entry was a matter essentially for determination by the Department. But when extraneous consideration enters the determination, interference by the court was called for. In that case, the dispute was about classification of V.P. Latex. The question was whether V.P. Latex imported by the tyre companies could be classified as rubber in raw state 18. In the case of Indian Cable Co. Ltd. v. CCE it was held that : (SCC p. 615, para 5) "5 .... in construing the relevant item or entry, in fiscal statutes, if it is one of everyday use, the authority concerned must normally, construe it, as to how it is understood in common parlance or in the commercial world or trade circles. It must be given its popular meaning. The meaning given in the dictionary must not prevail. Nor should the entry be understood in any technical or botanical or scientific sense." * 19. A word of caution was added in that judgment at page 615 of the Report which is of significance, "In the case of technical words, it may call for a different approach." 20. In other words, if the word used in a fiscal statute is understood in common parlance or in the commercial world in a particular sense, it must be taken that the Excise Act has used that word in the commonly understood sense. That sense cannot be taken away by attributing a technical meaning to the word. But if the legislature itself has adopted a technical term, then that technical term has to be understood in the technical sense. In other words, if in the fiscal statute, the article in question falls within the ambit of a technical term used under a particular entry, then that article cannot be taken away from that entry and placed under the residuary entry on the pretext that the article, even though it comes within the ambit of the technical term used in a particular entry, has acquired some other meaning in market parlance. For example, if a type of explosive (RDX) is known in the market as Kala Sabun by a section of the people who uses these explosives, the manufacturer or importer of these explosives cannot claim that the explosives must be classified as soap and not as explosive 21. In the case of Chemical and Fibres of India Ltd. v. Union of India 1997 (1) JT 432] the question was whether polymer chips manufactured by the assessee could be classified under Entry 15-A as it stood prior to 28-2-1964 under the heading "Plastics, All Sorts". The Court held that "plastics" was a commercial term and was known in the trade and was used in the trade. The court should not go into the technical analysis of composition and character of a product to decide the nature of the product in preference to the sense in which the market understood it. The court should go by the trade parlance. The Court pointed out that the conclusion drawn by the Court was also supported by the technical literature and dictionaries which were cited before the Court 22. The case before us, is not a case where a commonly understood commercial article like "Plastics" is sought to be given a special meaning by reference to its chemical composition. Cellulose ether has been made specifically taxable under Entry 15-A(1). The product manufactured by the appellant is sodium carboxymethyl cellulose which has been tested and found to be cellulose ether. The question is whether this product will come under Entry 15-A(1). It is not the case of the appellant that this product is known in the market by some other name and that name is to be found in some other entry. The Tribunal was right in holding that SCMC manufactured by the appellant answered the description "Cellulose Ether" and as such was assessable under Entry 15-A(1)
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20. In other words, if the word used in a fiscal statute is understood in common parlance or in the commercial world in a particular sense, it must be taken that the Excise Act has used that word in the commonly understood sense. That sense cannot be taken away by attributing a technical meaning to the word. But if the legislature itself has adopted a technical term, then that technical term has to be understood in the technical sense. In other words, if in the fiscal statute, the article in question falls within the ambit of a technical term used under a particular entry, then that article cannot be taken away from that entry and placed under the residuary entry on the pretext that the article, even though it comes within the ambit of the technical term used in a particular entry, has acquired some other meaning in market parlance. For example, if a type of explosive (RDX) is known in the market as Kala Sabun by a section of the people who uses these explosives, the manufacturer or importer of these explosives cannot claim that the explosives must be classified as soap and not as explosive21. In the case of Chemical and Fibres of India Ltd. v. Union of India 1997 (1) JT 432] the question was whether polymer chips manufactured by the assessee could be classified under Entry15Aas it stood prior to4 under the heading "Plastics, All Sorts". The Court held that "plastics" was a commercial term and was known in the trade and was used in the trade. The court should not go into the technical analysis of composition and character of a product to decide the nature of the product in preference to the sense in which the market understood it. The court should go by the trade parlance. The Court pointed out that the conclusion drawn by the Court was also supported by the technical literature and dictionaries which were cited before the Court22. The case before us, is not a case where a commonly understood commercial article like "Plastics" is sought to be given a special meaning by reference to its chemical composition. Cellulose ether has been made specifically taxable under Entry. The product manufactured by the appellant is sodium carboxymethyl cellulose which has been tested and found to be cellulose ether.The question is whether this product will come under Entry22. The case before us, is not a case where a commonly understood commercial article like "Plastics" is sought to be given a special meaning by reference to its chemical composition. Cellulose ether has been made specifically taxable under Entry. The product manufactured by the appellant is sodium carboxymethyl cellulose which has been tested and found to be cellulose ether.The question is whether this product will come under Entry. It is not the case of the appellant that this product is known in the market by some other name and that name is to be found in some other entry. The Tribunal was right in holding that SCMC manufactured by the appellant answered the description "Cellulose Ether" and as such was assessable under Entry
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R. Dalmia Vs. Commissioner Of Income-Tax, New Delhi | contention, it will be appropriate to examine the material part of section 2(6C)(iii) of the 1922 Act, which runs as follows: (iii) the value of any benefit or perquisite, whether convertible into money or not, obtained from a company either by a director or by any other person who has a substantial interest in the company (that is to say, who is concerned in the management of the business of the company, being the beneficial owner of shares, not being shares entitled to a fixed rate of dividend whether with or without a right to participate in profits, carrying not less than twenty per cent. of the voting power), and any sum paid by any such company in respect of any obligation which but for such payment would have been payable by the director or other person aforesaid. 8. From an analysis of clause (iii), it is clear that it falls in two distinct parts. The first part is confined to the obtaining of the value of any benefit or perquisite from a company by a director, even if he has no substantial interest in the company. The second part applies to a person who may not be a director but has a substantial interest in the company. What is substantial interest is further equated by the succeeding expression, that is to say , with the co-existence of two elements, namely, (i) concern in the management of the business of the company, and (ii) beneficial ownership of shares (not being shares entitled to a fixed rate of dividend) carrying not less than twenty per cent. of the voting power. There is no dispute before us that the assessee had obtained the benefit of Rs. 53, 398 from Bharat Union Agencies Pvt. Ltd. It is further admitted that he holds 1, 800 shares out of the total of 3, 000 equity shares in this company carrying a voting power of 60 per cent. Thus, the existence of the second element is more than satisfied. Controversy pivots around the first element onlyThe arguments which have been advanced before us on behalf of the assessee with regard to the construction and application of the expression concerned in the management of the business of the company, were canvassed before the Tribunal also. The Tribunal repelled these arguments. The reasoning of the Tribunal--with which the High Court found itself entirely in agreement is--as under: Shri Sharma conceded the position that the assessee was controlling both the companies in question... To exercise control over a company is something more than to manage the company. A person who manages the company may not necessarily be in a position to control the business or affairs of the company. He may be managing under the instructions of those who are controlling the company. But a person who controls a company also directly or indirectly through the managerial staff manages the business of the company. It is again not necessary that the person who manages the business of the company should be rightfully entitled to do it. A person who is not rightfully entitled to manage the business of the company but usurps the power by virtue of his certain position is, in our opinion, certainly a person covered by this expression. It is also not necessary...that the management should be carried on in an ostensible manner. One who carried on the management indirectly and imperceptibly through the persons who outwardly and ostensibly carry on the management is covered by the expression. It is not necessary, in our opinion, that the management should be both seen and felt ; it is sufficient if it is felt, without being seen. 9. In our opinion, the above is a correct exposition of the law on the point. The word concern is not a term of art, having a precise, fixed meaning. It has several nuances, and is used to convey diverse shades of meaning over a wide spectrum. It may mean to have a relation to, or bearing on, be of interest or importance or to have an anxiety, worry . Concerned as an adjective may mean interested , involved . In one context, it may mean one thing, and in a different context another. The decisions as to the meaning of this word used in a different context in another statute, are scarcely of much value in construing it in the setting of the provision with which we are concerned. The best way, therefore, to construe this word is with reference to the context in which it is used. In sub-clause (iii) of section 2(6C) of the Indian Income-tax Act, 1922, the word concerned takes its colour from the words in the management of the business , in association with which it occurs. In the context of business, manage means to control, to guide, to administer, to conduct or direct affairs ; carry on business (Shorter Oxford Dictionary, Websters New World Dictionary). Management includes the act of managing by direction, or regulation, or administration or control or superintendenceConstrued with reference to the context and the circumstances of a case, the expression person concerned in the management of the business may take in not only a person who directly participates or engages in the management of the business but also one who indirectly controls its management through the managerial staff, from behind the scenes. The assessees admission that he is in control of the company, necessarily includes an admission of his being concerned in the management of the business of the company . We, therefore, agree with the High Court, that the ambit of the term concerned in section 2(6C)(iii) cannot be restricted to a person who is an employee of the business or an office-holder of the company. In the context of management it is wide enough to include every person interested in the management, in the sense of having the direction and control of the managerial staff. On the facts of the case, the assessee was such a person. 10. | 0[ds]From an analysis of clause (iii), it is clear that it falls in two distinct parts. The first part is confined to the obtaining of the value of any benefit or perquisite from a company by a director, even if he has no substantial interest in the company. The second part applies to a person who may not be a director but has a substantial interest in the company. What isis further equated by the succeeding expression,that is to say , with the co-existence of two elements, namely, (i) concern in the management of the business of the company, and (ii) beneficial ownership of shares (not being shares entitled to a fixed rate of dividend) carrying not less than twenty per cent. of the voting power. There is no dispute before us that the assessee had obtained the benefit of Rs. 53, 398 from Bharat Union Agencies Pvt. Ltd. It is further admitted that he holds 1, 800 shares out of the total of 3, 000 equity shares in this company carrying a voting power of 60 per cent. Thus, the existence of the second element is more than satisfied. Controversy pivots around the first element onlyThe arguments which have been advanced before us on behalf of the assessee with regard to the construction and application of the expressionconcerned in the management ofthe business of the company, were canvassed before the Tribunal also. The Tribunal repelled these argumentsIn our opinion, the above is a correct exposition of the law on the point. The wordis not a term of art, having a precise, fixed meaning. It has several nuances, and is used to convey diverse shades of meaning over a wide spectrum. It may meanto have a relation to, or bearing on, be of interest or importance orto have an anxiety, worry .as an adjective may meaninvolved . In one context, it may mean one thing, and in a different context another. The decisions as to the meaning of this word used in a different context in another statute, are scarcely of much value in construing it in the setting of the provision with which we are concerned. The best way, therefore, to construe this word is with reference to the context in which it is used. In sub-clause (iii) of section 2(6C) of the Indian Income-tax Act, 1922, the wordtakes its colour from the wordsin the management of the business , in association with which it occurs. In the context of business,to control, to guide, to administer, to conduct or direct affairs ; carry on business(Shorter Oxford Dictionary, Websters New World Dictionary).includes the act of managing by direction, or regulation, or administration or control or superintendenceConstrued with reference to the context and the circumstances of a case, the expressionconcerned in the management ofmay take in not only a person who directly participates or engages in the management of the business but also one who indirectly controls its management through the managerial staff, from behind the scenes. The assessees admission that he is in control of the company, necessarily includes an admission of his beingconcerned in the management ofthe business of the. We, therefore, agree with the High Court, that the ambit of the termsection 2(6C)(iii) cannot be restricted to a person who is an employee of the business or an office-holder of the company. In the context ofit is wide enough to include every person interested in the management, in the sense of having the direction and control of the managerial staff. On the facts of the case, the assessee was such a person. | 0 | 2,326 | 687 | ### 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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contention, it will be appropriate to examine the material part of section 2(6C)(iii) of the 1922 Act, which runs as follows: (iii) the value of any benefit or perquisite, whether convertible into money or not, obtained from a company either by a director or by any other person who has a substantial interest in the company (that is to say, who is concerned in the management of the business of the company, being the beneficial owner of shares, not being shares entitled to a fixed rate of dividend whether with or without a right to participate in profits, carrying not less than twenty per cent. of the voting power), and any sum paid by any such company in respect of any obligation which but for such payment would have been payable by the director or other person aforesaid. 8. From an analysis of clause (iii), it is clear that it falls in two distinct parts. The first part is confined to the obtaining of the value of any benefit or perquisite from a company by a director, even if he has no substantial interest in the company. The second part applies to a person who may not be a director but has a substantial interest in the company. What is substantial interest is further equated by the succeeding expression, that is to say , with the co-existence of two elements, namely, (i) concern in the management of the business of the company, and (ii) beneficial ownership of shares (not being shares entitled to a fixed rate of dividend) carrying not less than twenty per cent. of the voting power. There is no dispute before us that the assessee had obtained the benefit of Rs. 53, 398 from Bharat Union Agencies Pvt. Ltd. It is further admitted that he holds 1, 800 shares out of the total of 3, 000 equity shares in this company carrying a voting power of 60 per cent. Thus, the existence of the second element is more than satisfied. Controversy pivots around the first element onlyThe arguments which have been advanced before us on behalf of the assessee with regard to the construction and application of the expression concerned in the management of the business of the company, were canvassed before the Tribunal also. The Tribunal repelled these arguments. The reasoning of the Tribunal--with which the High Court found itself entirely in agreement is--as under: Shri Sharma conceded the position that the assessee was controlling both the companies in question... To exercise control over a company is something more than to manage the company. A person who manages the company may not necessarily be in a position to control the business or affairs of the company. He may be managing under the instructions of those who are controlling the company. But a person who controls a company also directly or indirectly through the managerial staff manages the business of the company. It is again not necessary that the person who manages the business of the company should be rightfully entitled to do it. A person who is not rightfully entitled to manage the business of the company but usurps the power by virtue of his certain position is, in our opinion, certainly a person covered by this expression. It is also not necessary...that the management should be carried on in an ostensible manner. One who carried on the management indirectly and imperceptibly through the persons who outwardly and ostensibly carry on the management is covered by the expression. It is not necessary, in our opinion, that the management should be both seen and felt ; it is sufficient if it is felt, without being seen. 9. In our opinion, the above is a correct exposition of the law on the point. The word concern is not a term of art, having a precise, fixed meaning. It has several nuances, and is used to convey diverse shades of meaning over a wide spectrum. It may mean to have a relation to, or bearing on, be of interest or importance or to have an anxiety, worry . Concerned as an adjective may mean interested , involved . In one context, it may mean one thing, and in a different context another. The decisions as to the meaning of this word used in a different context in another statute, are scarcely of much value in construing it in the setting of the provision with which we are concerned. The best way, therefore, to construe this word is with reference to the context in which it is used. In sub-clause (iii) of section 2(6C) of the Indian Income-tax Act, 1922, the word concerned takes its colour from the words in the management of the business , in association with which it occurs. In the context of business, manage means to control, to guide, to administer, to conduct or direct affairs ; carry on business (Shorter Oxford Dictionary, Websters New World Dictionary). Management includes the act of managing by direction, or regulation, or administration or control or superintendenceConstrued with reference to the context and the circumstances of a case, the expression person concerned in the management of the business may take in not only a person who directly participates or engages in the management of the business but also one who indirectly controls its management through the managerial staff, from behind the scenes. The assessees admission that he is in control of the company, necessarily includes an admission of his being concerned in the management of the business of the company . We, therefore, agree with the High Court, that the ambit of the term concerned in section 2(6C)(iii) cannot be restricted to a person who is an employee of the business or an office-holder of the company. In the context of management it is wide enough to include every person interested in the management, in the sense of having the direction and control of the managerial staff. On the facts of the case, the assessee was such a person. 10.
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From an analysis of clause (iii), it is clear that it falls in two distinct parts. The first part is confined to the obtaining of the value of any benefit or perquisite from a company by a director, even if he has no substantial interest in the company. The second part applies to a person who may not be a director but has a substantial interest in the company. What isis further equated by the succeeding expression,that is to say , with the co-existence of two elements, namely, (i) concern in the management of the business of the company, and (ii) beneficial ownership of shares (not being shares entitled to a fixed rate of dividend) carrying not less than twenty per cent. of the voting power. There is no dispute before us that the assessee had obtained the benefit of Rs. 53, 398 from Bharat Union Agencies Pvt. Ltd. It is further admitted that he holds 1, 800 shares out of the total of 3, 000 equity shares in this company carrying a voting power of 60 per cent. Thus, the existence of the second element is more than satisfied. Controversy pivots around the first element onlyThe arguments which have been advanced before us on behalf of the assessee with regard to the construction and application of the expressionconcerned in the management ofthe business of the company, were canvassed before the Tribunal also. The Tribunal repelled these argumentsIn our opinion, the above is a correct exposition of the law on the point. The wordis not a term of art, having a precise, fixed meaning. It has several nuances, and is used to convey diverse shades of meaning over a wide spectrum. It may meanto have a relation to, or bearing on, be of interest or importance orto have an anxiety, worry .as an adjective may meaninvolved . In one context, it may mean one thing, and in a different context another. The decisions as to the meaning of this word used in a different context in another statute, are scarcely of much value in construing it in the setting of the provision with which we are concerned. The best way, therefore, to construe this word is with reference to the context in which it is used. In sub-clause (iii) of section 2(6C) of the Indian Income-tax Act, 1922, the wordtakes its colour from the wordsin the management of the business , in association with which it occurs. In the context of business,to control, to guide, to administer, to conduct or direct affairs ; carry on business(Shorter Oxford Dictionary, Websters New World Dictionary).includes the act of managing by direction, or regulation, or administration or control or superintendenceConstrued with reference to the context and the circumstances of a case, the expressionconcerned in the management ofmay take in not only a person who directly participates or engages in the management of the business but also one who indirectly controls its management through the managerial staff, from behind the scenes. The assessees admission that he is in control of the company, necessarily includes an admission of his beingconcerned in the management ofthe business of the. We, therefore, agree with the High Court, that the ambit of the termsection 2(6C)(iii) cannot be restricted to a person who is an employee of the business or an office-holder of the company. In the context ofit is wide enough to include every person interested in the management, in the sense of having the direction and control of the managerial staff. On the facts of the case, the assessee was such a person.
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Rai Bahadur Gujarmal Modi & Bros. Private Limited Vs. Godfrey Philips India Limited & Another | the definition clause cannot be given the interpretation that whenever there is a dispute relating to a company, it is the company court as defined in section 2(11) that will have the jurisdiction.9. A single Judge of the Gujarat High Court in the case of M.G.Doshit vs. Reliance Petrochemicals Ltd., 1994 (Vol.79) 830, held that the High Court under the Companies Act is a special court with special company jurisdiction and that jurisdiction has to be found from specific provision of the Act. The High Court does not have any general plenary or residuary jurisdiction to deal with all matters and all questions arising under the Companies Act.10. In the case of R.Prakasam vs. Sree Narayan Dharma Paripalana Yogam, 1980 Company Cases (vol.50) 611, the learned single Judge of the Kerala High Court, held that section 10 of the Companies Act does not purport to invest the company court with jurisdiction over every matter arising under the Companies Act.11. Mr.S.H.Doctor, the senior counsel for the Appellant (Applicant Company) relied upon the judgment of the Rajasthan High Court in the case of Maharaj Kumar Mahendra Singh vs. Lake Palace Hotels & Motels Pvt. Ltd.,& others, 1985 (Vol.58) Company Cases 805, in support of his contention that the Application under section 84(4) could be entertained by the High Court in its company jurisdiction. He particularly relied upon the observations made by the learned single Judge of the Rajasthan High Court that all matters arising under the Companies Act can be heard by the High Court which are not covered under the notification issued under sub-section (2) of section 10 of the Companies Act by the Central Government.12. Mr.S.H.Doctor also relied upon the brief order of the Supreme Court in the case of Shripal Jain vs. Torrent Pharmaceuticals Ltd., & others 1995 Supp (4) Supreme Court Cases 590, where, with relation to the Application under section 84(4), it was held that for issuance of duplicate certificates on account of loss of original ones, the proper forum to grant such relief under section 84(4) is not the civil court but the Registrar of Companies.13. In our considered view, section 10 of the Act of 1956 only determines the territorial jurisdiction of the High Court. The said provision cannot be construed to mean that the High Court has jurisdiction with respect to all matters relating to a Company. Wherever a special remedy before the Special Court has been provided, the legislature has made special provisions under the Act of 1956. That the High Court, as a company court is a special court with special company jurisdiction, needs no elaboration. The jurisdiction of the company court has to be found specifically from the provisions of the Act and it cannot be said that even where no special forum is provided under the Act of 1956, yet the High Court as a company court has jurisdiction to deal with all matters under the Companies Act. This will mean conferring a special jurisdiction to the Special Court (read High Court in the present case) when the legislature has not provided that specifically and expressly. The power that has been conferred on the High Court under the Companies Act is not plenary power enabling it to deal with all matters and all questions and all issues arising under the Companies Act. We find ourselves in respectful agreement with the view of the Calcutta High Court, Gujarat High Court and Kerala High Court, referred to hereinabove. Our view is also consistent with the decision of this Court in the case of Santosh Poddar.14. The view of the Rajasthan High Court in the case of Maharaj Kumar Mahendra Singh (supra), that all matters arising under the Companies Act can be heard by the company Court which are not covered under the notification issued under sub-section 2 of Section 10 of the Companies Act by the Central Government, does not seem to us to be expositing the legal proposition that all issues and all questions under the Act of 1956 can be adjudicated and determined by the company Court irrespective of whether such special provision has been made under the Act of 1956 or not.15. In the case of Shripal Jain (supra), the Apex Court observed thus: -"2. The share certificates purchased by the appellant in respect of M/s. Torrent Pharmaceuticals Ltd., were stolen. The appellant approached the Registrar, Respondent No.2 in the appeal herein, for issue of duplicate certificates. The Registrar directed the appellant to have a direction in this respect from the civil court. The civil court rejected the application of the appellant. The High Court dismissed the civil revision filed by the appellant in limine.3. We are of the view that the Registrar of the Company was in patent error in referring the appellant to the civil court in the facts and circumstances of the present case. He should have himself held an enquiry into the matter under Section 84(4) of the Companies Act read with the Companies (Issue of Share Certificates) Rules, 1960 and take a decision himself in the matter.4. We, therefore, set aside the impugned order of the civil court and consequent order of the High Court and remand the case back to the Registrar, Respondent No.2 to decide the matter in accordance with law in the first instance. The appeal is disposed of. No costs."16. Surely, from the aforesaid observations in Shripal Jains case, it cannot be said that the Application under section 84(4) could be maintained before the company Court by invoking section 2(11) read with section 10 of the Companies Act.17. We have no hesitation in holding that a special court viz., "company court" cannot be said to have jurisdiction to decide all issues and all questions under the Act of 1956 until specific provision is made in that regard under that Act.18. With regard to the Application under section 84(4), we find that no specific provision has been made conferring jurisdiction on the company court under section 2(11) read with section 10. | 0[ds]13. In our considered view, section 10 of the Act of 1956 only determines the territorial jurisdiction of the High Court. The said provision cannot be construed to mean that the High Court has jurisdiction with respect to all matters relating to a Company. Wherever a special remedy before the Special Court has been provided, the legislature has made special provisions under the Act of 1956. That the High Court, as a company court is a special court with special company jurisdiction, needs no elaboration. The jurisdiction of the company court has to be found specifically from the provisions of the Act and it cannot be said that even where no special forum is provided under the Act of 1956, yet the High Court as a company court has jurisdiction to deal with all matters under the Companies Act. This will mean conferring a special jurisdiction to the Special Court (read High Court in the present case) when the legislature has not provided that specifically and expressly. The power that has been conferred on the High Court under the Companies Act is not plenary power enabling it to deal with all matters and all questions and all issues arising under the Companies Act. We find ourselves in respectful agreement with the view of the Calcutta High Court, Gujarat High Court and Kerala High Court, referred to hereinabove. Our view is also consistent with the decision of this Court in the case of Santosh Poddar.Surely, from the aforesaid observations in Shripal Jains case, it cannot be said that the Application under section 84(4) could be maintained before the company Court by invoking section 2(11) read with section 10 of the Companies Act.17. We have no hesitation in holding that a special court viz., "company court" cannot be said to have jurisdiction to decide all issues and all questions under the Act of 1956 until specific provision is made in that regard under that Act.18. With regard to the Application under section 84(4), we find that no specific provision has been made conferring jurisdiction on the company court under section 2(11) read with section 10. | 0 | 1,731 | 400 | ### Instruction:
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the definition clause cannot be given the interpretation that whenever there is a dispute relating to a company, it is the company court as defined in section 2(11) that will have the jurisdiction.9. A single Judge of the Gujarat High Court in the case of M.G.Doshit vs. Reliance Petrochemicals Ltd., 1994 (Vol.79) 830, held that the High Court under the Companies Act is a special court with special company jurisdiction and that jurisdiction has to be found from specific provision of the Act. The High Court does not have any general plenary or residuary jurisdiction to deal with all matters and all questions arising under the Companies Act.10. In the case of R.Prakasam vs. Sree Narayan Dharma Paripalana Yogam, 1980 Company Cases (vol.50) 611, the learned single Judge of the Kerala High Court, held that section 10 of the Companies Act does not purport to invest the company court with jurisdiction over every matter arising under the Companies Act.11. Mr.S.H.Doctor, the senior counsel for the Appellant (Applicant Company) relied upon the judgment of the Rajasthan High Court in the case of Maharaj Kumar Mahendra Singh vs. Lake Palace Hotels & Motels Pvt. Ltd.,& others, 1985 (Vol.58) Company Cases 805, in support of his contention that the Application under section 84(4) could be entertained by the High Court in its company jurisdiction. He particularly relied upon the observations made by the learned single Judge of the Rajasthan High Court that all matters arising under the Companies Act can be heard by the High Court which are not covered under the notification issued under sub-section (2) of section 10 of the Companies Act by the Central Government.12. Mr.S.H.Doctor also relied upon the brief order of the Supreme Court in the case of Shripal Jain vs. Torrent Pharmaceuticals Ltd., & others 1995 Supp (4) Supreme Court Cases 590, where, with relation to the Application under section 84(4), it was held that for issuance of duplicate certificates on account of loss of original ones, the proper forum to grant such relief under section 84(4) is not the civil court but the Registrar of Companies.13. In our considered view, section 10 of the Act of 1956 only determines the territorial jurisdiction of the High Court. The said provision cannot be construed to mean that the High Court has jurisdiction with respect to all matters relating to a Company. Wherever a special remedy before the Special Court has been provided, the legislature has made special provisions under the Act of 1956. That the High Court, as a company court is a special court with special company jurisdiction, needs no elaboration. The jurisdiction of the company court has to be found specifically from the provisions of the Act and it cannot be said that even where no special forum is provided under the Act of 1956, yet the High Court as a company court has jurisdiction to deal with all matters under the Companies Act. This will mean conferring a special jurisdiction to the Special Court (read High Court in the present case) when the legislature has not provided that specifically and expressly. The power that has been conferred on the High Court under the Companies Act is not plenary power enabling it to deal with all matters and all questions and all issues arising under the Companies Act. We find ourselves in respectful agreement with the view of the Calcutta High Court, Gujarat High Court and Kerala High Court, referred to hereinabove. Our view is also consistent with the decision of this Court in the case of Santosh Poddar.14. The view of the Rajasthan High Court in the case of Maharaj Kumar Mahendra Singh (supra), that all matters arising under the Companies Act can be heard by the company Court which are not covered under the notification issued under sub-section 2 of Section 10 of the Companies Act by the Central Government, does not seem to us to be expositing the legal proposition that all issues and all questions under the Act of 1956 can be adjudicated and determined by the company Court irrespective of whether such special provision has been made under the Act of 1956 or not.15. In the case of Shripal Jain (supra), the Apex Court observed thus: -"2. The share certificates purchased by the appellant in respect of M/s. Torrent Pharmaceuticals Ltd., were stolen. The appellant approached the Registrar, Respondent No.2 in the appeal herein, for issue of duplicate certificates. The Registrar directed the appellant to have a direction in this respect from the civil court. The civil court rejected the application of the appellant. The High Court dismissed the civil revision filed by the appellant in limine.3. We are of the view that the Registrar of the Company was in patent error in referring the appellant to the civil court in the facts and circumstances of the present case. He should have himself held an enquiry into the matter under Section 84(4) of the Companies Act read with the Companies (Issue of Share Certificates) Rules, 1960 and take a decision himself in the matter.4. We, therefore, set aside the impugned order of the civil court and consequent order of the High Court and remand the case back to the Registrar, Respondent No.2 to decide the matter in accordance with law in the first instance. The appeal is disposed of. No costs."16. Surely, from the aforesaid observations in Shripal Jains case, it cannot be said that the Application under section 84(4) could be maintained before the company Court by invoking section 2(11) read with section 10 of the Companies Act.17. We have no hesitation in holding that a special court viz., "company court" cannot be said to have jurisdiction to decide all issues and all questions under the Act of 1956 until specific provision is made in that regard under that Act.18. With regard to the Application under section 84(4), we find that no specific provision has been made conferring jurisdiction on the company court under section 2(11) read with section 10.
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13. In our considered view, section 10 of the Act of 1956 only determines the territorial jurisdiction of the High Court. The said provision cannot be construed to mean that the High Court has jurisdiction with respect to all matters relating to a Company. Wherever a special remedy before the Special Court has been provided, the legislature has made special provisions under the Act of 1956. That the High Court, as a company court is a special court with special company jurisdiction, needs no elaboration. The jurisdiction of the company court has to be found specifically from the provisions of the Act and it cannot be said that even where no special forum is provided under the Act of 1956, yet the High Court as a company court has jurisdiction to deal with all matters under the Companies Act. This will mean conferring a special jurisdiction to the Special Court (read High Court in the present case) when the legislature has not provided that specifically and expressly. The power that has been conferred on the High Court under the Companies Act is not plenary power enabling it to deal with all matters and all questions and all issues arising under the Companies Act. We find ourselves in respectful agreement with the view of the Calcutta High Court, Gujarat High Court and Kerala High Court, referred to hereinabove. Our view is also consistent with the decision of this Court in the case of Santosh Poddar.Surely, from the aforesaid observations in Shripal Jains case, it cannot be said that the Application under section 84(4) could be maintained before the company Court by invoking section 2(11) read with section 10 of the Companies Act.17. We have no hesitation in holding that a special court viz., "company court" cannot be said to have jurisdiction to decide all issues and all questions under the Act of 1956 until specific provision is made in that regard under that Act.18. With regard to the Application under section 84(4), we find that no specific provision has been made conferring jurisdiction on the company court under section 2(11) read with section 10.
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Harinagar Sugar Mills Ltd Vs. M. W. Pradhan | S. 46 (5) (a) of the Indian Income-tax Act does not in terms prevent the debtor from compounding his claim with the creditor. It only directs him to hold the money for or on account of the assessee to pay to the Income-tax Officer. But, if in contravention of the notice issued to him, the debtor pays the said money to the creditor, he will be personally liable to the extent of the liability discharged or to the extent of the tax and penalties, whichever is less. The Income-tax Officer can also proceed against the debtor, as if the amount in respect whereof the notice was issued was attached by the Collector in exercise of his powers under the proviso to sub-s. (2) of S. 46 of the Indian Income-tax Act. These provisions do not prevent the debtor from compounding his claim with the creditor. If he compounds the claim, any agreement entered into by him with the creditor will not affect his liability to pay the income-tax of the creditor to the extent covered by the notice issued under S. 46 (5) (a) of the Income-tax Act; but the agreement would certainly be binding between the creditor and the debtor. The Income-tax Officer has no concern with it. In either view, therefore, the notice cannot be said to have been issued in contravention of the provisions of S. 434 (1) (a) of the Indian Companies Act. No doubt courts have held, in our view rightly that a statutory notice under S. 434 (1) (a) of the Indian Companies Act shall strictly comply with the provisions of the said section" see Japan Cotton Trading Co. Ltd. v Jajodia Cotton Mills, Ltd., ILR 54 Cal 345 : (AIR 1927 Cal 625 ); Kureshi v. Argus Footwear Ltd., AIR 1931 Rang 306 and W. T. Henleys Telegraph Works Co. Ltd., Calcutta v. Gorakhpur Electric Supply Co. Ltd., Allahabad, AIR 1936 All 840 .But in this case the statutory notice issued by the respondent did not violate any of the requirements of the section. We, therefore, reject this contention.10. The next contention is that the appellant had not neglected to pay the sum to the respondent, as the said amount must be deemed to have been attached by the Collector in exercise of his powers under the proviso to sub-section (2) of S. 46 of the Indian Income-tax Act, 1922. In support of this contention reliance is placed upon In re, European Banking Co.; Ex Parte Baylis, (1866) 2 Eq 521. There, a petition was presented for winding-up of a Banking company for a debt of 65 pounds due to the petitioner; but the said debt was attached in the Lord Mayors Court. The petition was dismissed on the ground that, though the attachment did not absolutely do away with the debt, it seized the debt into the hands of the Lord Mayors Court. In the case the demand was that the debtor should pay the amount to the petitioning creditor and because of the attachment of that amount by Lord Mayors Court the debtor could not pay the amount to the creditor. But that judgment cannot possibly be of any help to the appellant, for in the instant case the Receiver asked the debtor to pay the amount due to the joint family to the Additional Collector, Bombay, towards the income-tax due from the joint family. The debtor was not only (sic) asked to do something which was legally prohibited but was asked to comply with the Collectors requisition under S. 46 of the Indian Income-tax Act, 1922. By not doing so, the Company clearly neglected to pay the amount within the meaning of S. 434 of the Indian Companies Act.11. Lastly it is argued that there was a bona fide dispute in respect of the liability of the Company to the joint family. It is said that the Companys case was that the debt was due to four individuals mentioned in the conveyance, namely, the father and his three sons, whereas the Receivers case was that the amount was due to the joint family and, therefore, in the circumstances it cannot be said that the Company neglected to pay the amount to the Receiver. In AIR 1936 All 840 it was ruled that a mere service of notice of demand of debt by a creditor on a solvent company did not entitle the creditor to a winding-up order if the company bona fide disputed the existence of the debt. In that case it was found that there was a bona fide dispute between the parities and that the notice issued was a vehicle of oppression and an abuse of the process of the Court. But the same cannot be said in the present case. In re Gold Hill Mines, (1883) 23 Ch D 210 also a winding-up petition was dismissed on the finding that it was an abuse if the process of the Court, it being a petition to compel payment of a small debt which was under bona fide dispute.12. In the present case, Narayanlal Bansilal was not only the karta of the joint family but was also the Chairman of the board of Directors of the Company. In the partition suit he filed an affidavit wherein he stated:"Referring to Para 10 (c) of the affidavit I deny there is any manipulation in the balance sheet of Harinagar Sugar Mills Ltd., as falsely sought to be suggested by the 3rd defendant. No loan of Rs. 25,00,000 has been given by me to the said company. The said amount is the balance of the purchase price payable by the said company to the joint family in respect of Harinagar Cane Farm".In view of the said affidavit it is manifest that the alleged dispute was not bona fide but was only a part of a scheme of collusion between the Company and the karta of the joint family. There are, therefore, no merits in any of the contentions raised by the Company. | 0[ds]4. That apart, under O.XL, R. 1 (d), of the Code of Civil Procedure the Court can also confer on the Receiver such of those powers as the Court thinks fit. It is implicit in this apparently wide power that it shall be confined to the scope of the Receivers administration of the estate. If, for the proper and effective management of the estate of which the Receiver has been appointed the Court thinks fit that it shall confer power on the said Receiver to take steps for winding up of the debtor-company, it must be conceded that the Court will have power to give necessary directions to the Receiver in that regard.5. On November 22, 1963, the Receiver obtained the directions of the Court empowering him to file the winding-up petition against the Company. But, it is contended that the learned Judge made that order without prejudice to the contentions of the members of the joint family and that one of the contentions was that a petition for the winding up of the Company was not maintainable at the instance of the Receiver. This reservation, no doubt, entitles the appellant to raise the plea of the maintainability of the petition filed by the Receiver for winding up of the Company. But it does not bear on the question of authorization obtained by the Receiver to file the said petition. The question of the maintainability of the petition will be dealt with by us at a later stage of the judgment. In this view also the Receiver had the power to file the petition before the Court for winding up of the Company. There are, therefore, no merits in the firstcomparison of these two decisions leads to the following legal position: If a receiver could maintain an action at law or in equity for the recovery of a debt, he would be a good petitioning creditor; and, if he could not, he would not be one.In In re Sackers case, (1888) 22 QBD 179 it was not possible for the receiver to bring an action to recover the debt either at law or in equity, whereas in Macouns case, (1904) 2 KB 700, the receiver, having obtained the assignment of the debt, could maintain an action at law for the recovery of the debt. Therefore, even in England a receiver, who can maintain an action to recover a debt, would be a good petitioning creditor.In India, the scope of the receivers power is governed by the express provisions of the Code of Civil Procedure. It is common place that a receiver appointed by Court has no estate or interest himself and the scope of his power is defined by the provisions of O. XL of the said Code and the specific orders made by the Court thereunder. He is frequently spoken to as the "hand of the Court". In exercise of the power under the said Cl. (d) if a Court confers upon the receiver power to bring a suit to realise the assets which are the subject-matter of the suit, it cannot be denied that the said receiver can file suits to recover the debts forming part of the saidcreditor, therefore, under the Indian Companies Act is any person who acquires that character by assignment or otherwise. The expression "otherwise" takes in any person to whom another becomes indebted howsoever the relationship of creditor and debtor is brought about between them. We come back to the meaning of the word "creditor". Strouds Judicial Dictionary, 3rd Edn., Vol. I; defines "creditor" to mean a person to whom a debt is payable. Though this is one of the many definitions given in the said dictionary, this appears to be the appropriate meaning. A receiver appointed by the Court to realise a debt can demand the payment of the debt. If the debtor pays the debt to him, he gets a full discharge; in default of payment, the receiver can file a suit in his own name and obtain a decree. After obtaining the decree he will certainly be a judgment-creditor. Such a receiver is a person to whom a debt is payable by the debtor. In the present case, the respondent was authorised to file suits to realise the assets of the joint family, including the debt. We hold that the respondent is a creditor within the meaning of S. 439 (1) (b) of the Indian companies Act and, therefore, is competent to maintain the petition for winding up of themain defects are pointed out, namely, the notice did not require the appellant to pay the debt to the joint family or the Receiver but to the Additional Collector of Bombay and the said notice put it beyond the reach of the Company to secure or compound for the debt to the reasonable satisfaction of the Court Receiver. Section 434 of the Indian Companies Act has been quoted earlier. Under the section before a company shall be deemed to be unable to pay its debts two conditions must be satisfied, namely, (i) the creditor shall have delivered a demand in the prescribed manner on the company to pay the sum due to him; and (ii) the company has for three weeks thereafter neglected to pay the same, or to secure or compound for it to the reasonable satisfaction of the creditor. We have already held that the Receiver is a creditor within the meaning of Cl. (a) of S. 434 (1) of the Indian Companies Act. In the statutory notice issued by the Receiver he had called upon the Company to make payment of Rs. 25,00,000 to the Additional Collector of Bombay by whom the debt had been attached within the prescribed period of 21 days. He had to do so because the Additional Collector had served a notice, dated July 24, 1956, under S. 46 (5) (a) of the Indian Income-tax Act. 1922, calling upon the Company to pay to him whatever amount was held by the Company on account of the joint family. Section 434 (1) (a) of the Indian Companies Act does not say that the demand made by the creditor on the Company shall be to pay the amount due only to the creditor and not to any other person; nor does it by necessary implication impose any such condition. What is necessary is that the debtor by paying the amount demanded shall be in a position to get full discharge of his liability. In the present case the Receiver directed the amount to be paid to the Additional Collector of Bombay for the purpose of liquidating the income-tax payable by the joint family. Indeed, by paying the said amount, and in view of the notice served on the Company under S. 46 (5) (a) of the Indian Income-tax Act, 1922, the Company will get a full discharge of its liability to the joint family. Section 46 (5) (a) of the Income-tax Act says that any person making any payment in compliance with a notice under S. 46 (5) (a) shall be deemed to have made the payment under the authority of the assessee and the receipt of the Income-tax Officer shall constitute a good and sufficient discharge of the liability of such person to the assessee. The Receiver, therefore, in directing the amount to be paid to the Additional Collector of Bombay did not do anything in derogation of the provisions of S. 434 (1) (a) of the Indian Companies Act.9. Nor are there any merits in the second link of the contention. The question is whether, if proceedings were taken against the Company under S. 46 (5) (a) of the Indian Income-tax Act, the Company was deprived of the opportunity to pay the sum due to the respondent or to secure or compound for it to the reasonable satisfaction of the creditor within the meaning of S. 434 (1) (a) of the Indian Companies Act. After the statutory notice the Company could pay the sum demanded or secure or compound for it to the reasonable satisfaction of the creditor. The section does not confer a right on a debtor but only gives him an opportunity to discharge the debt in one or other of the ways mentioned therein. The debtor could secure or compound for a debt only where the circumstances under which the demand is made permit such a mode of discharge. But whereas in this case both the debtor and the creditor were under an obligation to discharge the income-tax dues and, as the creditor directed the debtor to pay the entire amount due to him towards the income-tax dues, there is no scope for the debtor to approach the creditor for securing or compounding his claim. In this view, no right of the Company is violated, as it has none under S. 434 (1) (a) of the Indian Companies Act. That apart, S. 46 (5) (a) of the Indian Income-tax Act does not in terms prevent the debtor from compounding his claim with the creditor. It only directs him to hold the money for or on account of the assessee to pay to the Income-tax Officer. But, if in contravention of the notice issued to him, the debtor pays the said money to the creditor, he will be personally liable to the extent of the liability discharged or to the extent of the tax and penalties, whichever is less. The Income-tax Officer can also proceed against the debtor, as if the amount in respect whereof the notice was issued was attached by the Collector in exercise of his powers under the proviso to sub-s. (2) of S. 46 of the Indian Income-tax Act. These provisions do not prevent the debtor from compounding his claim with the creditor. If he compounds the claim, any agreement entered into by him with the creditor will not affect his liability to pay the income-tax of the creditor to the extent covered by the notice issued under S. 46 (5) (a) of the Income-tax Act; but the agreement would certainly be binding between the creditor and the debtor. The Income-tax Officer has no concern with it. In either view, therefore, the notice cannot be said to have been issued in contravention of the provisions of S. 434 (1) (a) of the Indian Companies Act. No doubt courts have held, in our view rightly that a statutory notice under S. 434 (1) (a) of the Indian Companies Act shall strictly comply with the provisions of the said section" see Japan Cotton Trading Co. Ltd. v Jajodia Cotton Mills, Ltd., ILR 54 Cal 345 : (AIR 1927 Cal 625 ); Kureshi v. Argus Footwear Ltd., AIR 1931 Rang 306 and W. T. Henleys Telegraph Works Co. Ltd., Calcutta v. Gorakhpur Electric Supply Co. Ltd., Allahabad, AIR 1936 All 840 .But in this case the statutory notice issued by the respondent did not violate any of the requirements of the section. We, therefore, reject thisis said that the Companys case was that the debt was due to four individuals mentioned in the conveyance, namely, the father and his three sons, whereas the Receivers case was that the amount was due to the joint family and, therefore, in the circumstances it cannot be said that the Company neglected to pay the amount to the Receiver. In AIR 1936 All 840 it was ruled that a mere service of notice of demand of debt by a creditor on a solvent company did not entitle the creditor to a winding-up order if the company bona fide disputed the existence of the debt. In that case it was found that there was a bona fide dispute between the parities and that the notice issued was a vehicle of oppression and an abuse of the process of the Court. But the same cannot be said in the present case.In the present case, Narayanlal Bansilal was not only the karta of the joint family but was also the Chairman of the board of Directors of theview of the said affidavit it is manifest that the alleged dispute was not bona fide but was only a part of a scheme of collusion between the Company and the karta of the joint family. There are, therefore, no merits in any of the contentions raised by theview is supported by the decisions in Bowes v. Hope Life Insurance and Guarantee Co., (1865) 11 HLC 389; Re, General Company for Promotion of Land Credit, (1870) 5 Ch A 363 (380) and Re, National Permanent Building Society, (1869) 5 Ch A 309.It is true that a winding up order is not a normal alternative in the case of a company to the ordinary procedure for the realisation of the debts due to it"; but nonetheless it is a form of equitable execution. Propriety does not affect the power but only its exercise. If so, it follows that in terms of Cl. (d) of R. 1 of O. XL of the Code of Civil Procedure, a Receiver can file a petition for winding up of a company for the realisation of the properties, movable and immovable, including debts, of which he was appointed the Receiver. In this view, the respondent had power to file the petition in the Court for winding up of the Company. | 0 | 5,573 | 2,487 | ### Instruction:
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S. 46 (5) (a) of the Indian Income-tax Act does not in terms prevent the debtor from compounding his claim with the creditor. It only directs him to hold the money for or on account of the assessee to pay to the Income-tax Officer. But, if in contravention of the notice issued to him, the debtor pays the said money to the creditor, he will be personally liable to the extent of the liability discharged or to the extent of the tax and penalties, whichever is less. The Income-tax Officer can also proceed against the debtor, as if the amount in respect whereof the notice was issued was attached by the Collector in exercise of his powers under the proviso to sub-s. (2) of S. 46 of the Indian Income-tax Act. These provisions do not prevent the debtor from compounding his claim with the creditor. If he compounds the claim, any agreement entered into by him with the creditor will not affect his liability to pay the income-tax of the creditor to the extent covered by the notice issued under S. 46 (5) (a) of the Income-tax Act; but the agreement would certainly be binding between the creditor and the debtor. The Income-tax Officer has no concern with it. In either view, therefore, the notice cannot be said to have been issued in contravention of the provisions of S. 434 (1) (a) of the Indian Companies Act. No doubt courts have held, in our view rightly that a statutory notice under S. 434 (1) (a) of the Indian Companies Act shall strictly comply with the provisions of the said section" see Japan Cotton Trading Co. Ltd. v Jajodia Cotton Mills, Ltd., ILR 54 Cal 345 : (AIR 1927 Cal 625 ); Kureshi v. Argus Footwear Ltd., AIR 1931 Rang 306 and W. T. Henleys Telegraph Works Co. Ltd., Calcutta v. Gorakhpur Electric Supply Co. Ltd., Allahabad, AIR 1936 All 840 .But in this case the statutory notice issued by the respondent did not violate any of the requirements of the section. We, therefore, reject this contention.10. The next contention is that the appellant had not neglected to pay the sum to the respondent, as the said amount must be deemed to have been attached by the Collector in exercise of his powers under the proviso to sub-section (2) of S. 46 of the Indian Income-tax Act, 1922. In support of this contention reliance is placed upon In re, European Banking Co.; Ex Parte Baylis, (1866) 2 Eq 521. There, a petition was presented for winding-up of a Banking company for a debt of 65 pounds due to the petitioner; but the said debt was attached in the Lord Mayors Court. The petition was dismissed on the ground that, though the attachment did not absolutely do away with the debt, it seized the debt into the hands of the Lord Mayors Court. In the case the demand was that the debtor should pay the amount to the petitioning creditor and because of the attachment of that amount by Lord Mayors Court the debtor could not pay the amount to the creditor. But that judgment cannot possibly be of any help to the appellant, for in the instant case the Receiver asked the debtor to pay the amount due to the joint family to the Additional Collector, Bombay, towards the income-tax due from the joint family. The debtor was not only (sic) asked to do something which was legally prohibited but was asked to comply with the Collectors requisition under S. 46 of the Indian Income-tax Act, 1922. By not doing so, the Company clearly neglected to pay the amount within the meaning of S. 434 of the Indian Companies Act.11. Lastly it is argued that there was a bona fide dispute in respect of the liability of the Company to the joint family. It is said that the Companys case was that the debt was due to four individuals mentioned in the conveyance, namely, the father and his three sons, whereas the Receivers case was that the amount was due to the joint family and, therefore, in the circumstances it cannot be said that the Company neglected to pay the amount to the Receiver. In AIR 1936 All 840 it was ruled that a mere service of notice of demand of debt by a creditor on a solvent company did not entitle the creditor to a winding-up order if the company bona fide disputed the existence of the debt. In that case it was found that there was a bona fide dispute between the parities and that the notice issued was a vehicle of oppression and an abuse of the process of the Court. But the same cannot be said in the present case. In re Gold Hill Mines, (1883) 23 Ch D 210 also a winding-up petition was dismissed on the finding that it was an abuse if the process of the Court, it being a petition to compel payment of a small debt which was under bona fide dispute.12. In the present case, Narayanlal Bansilal was not only the karta of the joint family but was also the Chairman of the board of Directors of the Company. In the partition suit he filed an affidavit wherein he stated:"Referring to Para 10 (c) of the affidavit I deny there is any manipulation in the balance sheet of Harinagar Sugar Mills Ltd., as falsely sought to be suggested by the 3rd defendant. No loan of Rs. 25,00,000 has been given by me to the said company. The said amount is the balance of the purchase price payable by the said company to the joint family in respect of Harinagar Cane Farm".In view of the said affidavit it is manifest that the alleged dispute was not bona fide but was only a part of a scheme of collusion between the Company and the karta of the joint family. There are, therefore, no merits in any of the contentions raised by the Company.
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be paid to the Additional Collector of Bombay did not do anything in derogation of the provisions of S. 434 (1) (a) of the Indian Companies Act.9. Nor are there any merits in the second link of the contention. The question is whether, if proceedings were taken against the Company under S. 46 (5) (a) of the Indian Income-tax Act, the Company was deprived of the opportunity to pay the sum due to the respondent or to secure or compound for it to the reasonable satisfaction of the creditor within the meaning of S. 434 (1) (a) of the Indian Companies Act. After the statutory notice the Company could pay the sum demanded or secure or compound for it to the reasonable satisfaction of the creditor. The section does not confer a right on a debtor but only gives him an opportunity to discharge the debt in one or other of the ways mentioned therein. The debtor could secure or compound for a debt only where the circumstances under which the demand is made permit such a mode of discharge. But whereas in this case both the debtor and the creditor were under an obligation to discharge the income-tax dues and, as the creditor directed the debtor to pay the entire amount due to him towards the income-tax dues, there is no scope for the debtor to approach the creditor for securing or compounding his claim. In this view, no right of the Company is violated, as it has none under S. 434 (1) (a) of the Indian Companies Act. That apart, S. 46 (5) (a) of the Indian Income-tax Act does not in terms prevent the debtor from compounding his claim with the creditor. It only directs him to hold the money for or on account of the assessee to pay to the Income-tax Officer. But, if in contravention of the notice issued to him, the debtor pays the said money to the creditor, he will be personally liable to the extent of the liability discharged or to the extent of the tax and penalties, whichever is less. The Income-tax Officer can also proceed against the debtor, as if the amount in respect whereof the notice was issued was attached by the Collector in exercise of his powers under the proviso to sub-s. (2) of S. 46 of the Indian Income-tax Act. These provisions do not prevent the debtor from compounding his claim with the creditor. If he compounds the claim, any agreement entered into by him with the creditor will not affect his liability to pay the income-tax of the creditor to the extent covered by the notice issued under S. 46 (5) (a) of the Income-tax Act; but the agreement would certainly be binding between the creditor and the debtor. The Income-tax Officer has no concern with it. In either view, therefore, the notice cannot be said to have been issued in contravention of the provisions of S. 434 (1) (a) of the Indian Companies Act. No doubt courts have held, in our view rightly that a statutory notice under S. 434 (1) (a) of the Indian Companies Act shall strictly comply with the provisions of the said section" see Japan Cotton Trading Co. Ltd. v Jajodia Cotton Mills, Ltd., ILR 54 Cal 345 : (AIR 1927 Cal 625 ); Kureshi v. Argus Footwear Ltd., AIR 1931 Rang 306 and W. T. Henleys Telegraph Works Co. Ltd., Calcutta v. Gorakhpur Electric Supply Co. Ltd., Allahabad, AIR 1936 All 840 .But in this case the statutory notice issued by the respondent did not violate any of the requirements of the section. We, therefore, reject thisis said that the Companys case was that the debt was due to four individuals mentioned in the conveyance, namely, the father and his three sons, whereas the Receivers case was that the amount was due to the joint family and, therefore, in the circumstances it cannot be said that the Company neglected to pay the amount to the Receiver. In AIR 1936 All 840 it was ruled that a mere service of notice of demand of debt by a creditor on a solvent company did not entitle the creditor to a winding-up order if the company bona fide disputed the existence of the debt. In that case it was found that there was a bona fide dispute between the parities and that the notice issued was a vehicle of oppression and an abuse of the process of the Court. But the same cannot be said in the present case.In the present case, Narayanlal Bansilal was not only the karta of the joint family but was also the Chairman of the board of Directors of theview of the said affidavit it is manifest that the alleged dispute was not bona fide but was only a part of a scheme of collusion between the Company and the karta of the joint family. There are, therefore, no merits in any of the contentions raised by theview is supported by the decisions in Bowes v. Hope Life Insurance and Guarantee Co., (1865) 11 HLC 389; Re, General Company for Promotion of Land Credit, (1870) 5 Ch A 363 (380) and Re, National Permanent Building Society, (1869) 5 Ch A 309.It is true that a winding up order is not a normal alternative in the case of a company to the ordinary procedure for the realisation of the debts due to it"; but nonetheless it is a form of equitable execution. Propriety does not affect the power but only its exercise. If so, it follows that in terms of Cl. (d) of R. 1 of O. XL of the Code of Civil Procedure, a Receiver can file a petition for winding up of a company for the realisation of the properties, movable and immovable, including debts, of which he was appointed the Receiver. In this view, the respondent had power to file the petition in the Court for winding up of the Company.
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National Sewing Thread Co. Ltd Vs. James Chadwick & Bros. Ltd.(J.& P. Coats Ltd., Assignee)Re | that an appeal shall lie to the High Court from the order of the Registrar and has said nothing more about it. Clearly, therefore, to this case the rule enunciated in 1913 Appeal Cases 546 had application, and the rule stated in Mask case [67 I.A. 222.] had no bearing on this point.As regards the merits of the case we are in entire agreement with the decision of the High Court and with the reasons given in that decision. The relevant part of section 8 of the Trade Marks Act is in these terms :"No trade mark nor part of a trade mark shall be registered which consists of, or contains, any scandalous design, or any matter the use of which would by reason of its being likely to deceive or to cause confusion or otherwise, be disentitled to protection in a court of justice".16. Under this section an application made to register a trade mark which is likely to deceive or to cause confusion has to be refused notwithstanding the fact that the mark might have no identity or close resemblance with any other trade mark. The Registrar has to come to a conclusion on this point independently of making any comparison of the mark with any other registered trade mark. What the Registrar has to see is whether looking at the circumstances of the case a particular trade mark is likely to deceive or to cause confusion.17. The principles of law applicable to such cases are well-settled. The burden of proving that the trade mark which a person seeks to register is not likely to deceive or to cause confusion is upon the applicant. It is for him to satisfy the Registrar that his trade mark does not fall within the prohibition of section 8 and therefore it should be registered. Moreover, in deciding whether a particular trade mark is likely to deceive or cause confusion that duty is not discharged by arriving at the result by merely comparing it with the trade mark which is already registered and whose proprietor is offering opposition to the registration of the mark. The real question to decide in such cases is to see as to how a purchaser, who must be looked upon as an average man of ordinary intelligence, would react to a particular trade mark, what association he would form by looking at the trade mark, and in what respect he would connect the trade mark with the goods which he would be purchasing.So far as the present case is concerned the goods sold under the respondents trade mark are well-known and are commonly asked for as "Eagley" or "Eagle", and the particular feature of the trade mark of the respondents by which the goods are identified and which is associated in the mind of the purchaser is the representation of an Eagle appearing in the trade mark. If the trade mark conveys the idea of an Eagle and if an unwary purchaser is likely to accept the goods of the appellants as answering the requisition for Eagle goods, then undoubtedly the appellants trade mark is one which would be likely to deceive or cause confusion. It is clear to us that the bird in the appellants trade mark is likely to be mistaken by an average man of ordinary intelligence as an Eagle and if he asked for Eagle goods and he got goods bearing this trade mark of the appellants it is not likely that he would reject them by saying that this cannot be an Eagle. Two years prior to be the application for registration, the respondents described this particular bird an Eagle and called their brand Eagle Brand, The same bird was later on described by them a vulture and the explanation offered was that they so described owing to an honest and bona fide mistake. We have no hesitation in holding that the appellants camouflaging an Eagle into a vulture by calling it such is likely to cause confusion. Whatever else may be said about the bird in the appellants trade mark, it certainly does not represent a vulture or look like a vulture of any form or shape. What has been named by the plaintiffs as a vulture is really an eagle seated in a different posture. That being so, the High Court was perfectly right in the view that Mr. Justice Shah was in error in interfering with the discretion possessed and exercised by the Registrar, and that the appellants had failed to discharge the onus that rested heavily on them to prove that the trade mark which they wanted the Registrar to register was not likely to deceive or cause confusion.The learned counsel for the appellants contended that the question whether his clients trade mark was likely to deceive or cause confusion had been concluded by the earlier judgment of the Madras High Court in the passing off action and already referred to in an early part of the judgment. It is quite clear that the onus in a passing off action rests on the plaintiff to prove whether there is likelihood of the defendant goods being passed off as the goods of the plaintiff. It was not denied that the general get up of the appellants trade mark is different from the general get up of the respondents trade mark. That being so, it was held by the Madras High Court in the passing off action that on the meagre material placed on record by the plaintiffs they had failed to prove that the defendants goods could be passed off as the goods of the plaintiffs. The considerations relevant in a passing off action are somewhat different than they are on an application made for registration of a mark under the Trade Marks Act and that being so the decision of the Madras High Court referred to above could not be considered as relevant on the questions that the Registrar had to decide under the provisions of the Act.18. | 0[ds]In our judgment both the questions canvassed in this appeal admit of an easy answer in spite of a number of hurdles and difficulties suggested during the arguments. It is not disputed that the decision of Mr. Justice Shah does constitute a judgment within the meaning of clause 15 of the Letterswas said that the provisions of this clause could not be attracted to an appeal preferred to the High Court under section 76 of the Trade Marks Act and further that the clause would have no application in a case, where the judgment could not be said to have been delivered pursuant to section 108 of the Government of India Act, 1915. Both these objections in our opinion are notTrade Marks Act does not provide or lay down any procedure for the future conduct or career of that appeal in the High Court, indeed section 77 of the Act provides that the High Court can if it likes make rules in the matter. Obviously after the appeal had reached the High Court it has to be determined according to the rules of practice and procedure of that Court and in accordance with the provisions of the charter under which that Court is constituted and which confers on it power in respect to the method and manner of exercising that jurisdiction. The rule is well settled that when a statute directs that an appeal shall lie to a Court already established, then that appeal must be regulated by the practice and procedure of thatthe facts of the cases laying down the above rule were not exactly similar to the facts of the present case, the principle enunciated therein is one of general application and has an apposite application to the facts and circumstances of the present case. Section 76 of the Trade Marks Act confers a right of appeal to the High Court and says noting more about it. That being so, the High Court being seized as such of the appellate jurisdiction conferred by section 76 it has to exercise that jurisdiction in the same manner as it exercises its other appellate jurisdiction and when such jurisdiction is exercised by a single Judge, his judgment becomes subject to appeal under clause 15 of the Letters Patent there being nothing to the contrary in the Trade Marks Act.The objection that Mr. Justice Shah judgment having been delivered on an appeal under section 7 of the Trade Marks Act could not be said to have been delivered pursuant to section 108 of the Government of India Act is also without force and seems to have been based on a very narrow and limited construction of that section and on an erroneous view of its true intent andsection is an enabling enactment and confers power on the High Courts of making rules for the exercise of their jurisdiction by single Judges or by division courts. The power conferred by the section is not circumscribed in any manner whatever and the nature of the power is such that it had to be conferred by the use of words of the widest amplitude. There could be no particular purpose or object while conferring the power in limiting it quo the jurisdiction already possessed by the High Court, when in the other provisions of the Government of India Act it was contemplated that the existing jurisdiction was subject to the legislative power of the Governor-General and the jurisdiction conferred on the High Court was liable to be enlarged, modified and curtailed by the Legislature from time to time. It is thus difficult to accept the argument that the power vested in the High Court under sub-section (1) of section 108 was a limited one, and could only be exercised in respect to such jurisdiction as the High Court possessed on the date when the Act of 1915 came into force. The words of the sub-section "vested in the court" cannot be read as meaning "now vested in the court". It is a well-known rule of construction that when a power is conferred by a statute that power may be exercised from time to time when occasion arises unless a contrary intention appears. This rule has been given statutory recognition in section 32 of the Interpretation Act. the purpose of the reference to section 108 in clause 15 of the Letters Patent was to incorporate that power in the charter of the Court itself, and not to make it moribund at that stage and make it rigid and inflexible. We are therefore of the opinion that section 108 of the Government of India Act, 1915, conferred power on the High Court which that Court could exercise from time to time with reference to its jurisdiction whether existing at the coming into force of the Government of India Act, 1915, or whether conferred on it by any subsequent legislation.It was argued that simultaneously with the repeal of section 108 of the Government of India Act, 1915, and of the enactment of its provisions in section 223 of the Government of India Act of 1935 and later on in article 225 of the Constitution of India, there had not been any corresponding amendment of clause 15 of the Letters Patent and the reference to section 108 in clause 15 of the Letters Patent could not therefore be taken as relating to these provisions, and, that being so, the High Court had no power to make rules in 1940 when the Trade Marks Act was enacted under the repealed section and the decision of Mr. Justice Shah therefore could not be said to have been given pursuant to section 108. This objection also in our opinion is not well-founded as it overlooks the fact that the power that was conferred on the High Court by section 108 still subsists, and it has not been affected in any manner whatever either by the Government of India Act, 1935, or by the new Constitution. On the other hand it has been kept alive and reaffirmed with great vigour by these statutes. The High Courts still enjoy the same unfettered power as they enjoyed under section 108 of the Government of India Act, 1915, of making rules and providing whether an appeal has to be heard by one Judge or more Judges or by Division Courts consisting of two or more Judges of the High Court. It is immaterial by what label or nomenclature that power is described in the different statutes or in the Letters Patent. The power is there and continues to be there and can be exercised in the same manner as it could be exercised when it was originally conferred. As a matter of history the power was not conferred for the first time by section 108 of the Government of India Act, 1915. It had already been conferred by section 13 of the Indian High Courts Act ofWe are further of the opinion that the High Court was right in the view that reference in clause 15 to section 108 should be read as a reference to the corresponding provisions of the 1935 Act and the Constitution. The canon of construction of statutes enunciated in section 38 of the Interpretation Act and reiterated with some modifications in section 8 of the General Clauses Act is one of general application where statutes or Acts have to be construed and there is no reasonable ground for holding that that rule of construction should not be applied in construing the charters of the different High Courts. These charters were granted under statutory powers and are subject to the legislative power of the Indian Legislature. Assuming however, but not conceding, that strictly speaking the provisions of the Interpretation Act and the General Clauses Act do not for any reason apply, we see no justification for holding that the principles of construction enunciated in those provisions have no application for construing these charters. For the reasons given above we hold that the High Court was perfectly justified in overruling the preliminary objection and in holding that an appeal was competent from the judgment of Mr. Justice Shah under clause 15 of the Lettersbeing so the last words of the clause "now in force" on which emphasis was placed in the Calcutta judgment lose all their importance, and do not materially affect the point. The true intent and purpose of clause 44 of the Letters Patent was to supplement the provisions of clause 16 and other clauses of the Letters Patent. By force of this clause appellate jurisdiction conferred by fresh legislation on the High Courts stands included within the appellate jurisdiction of the court conferred by the Letters Patent. A reference to clause 15 of the Letters Patent of 1861, which clause 16 replaced, fully supports thisaddition to the words "lows or regulations now in force". The words above cited were omitted from clause 16 of the later charter and only the words "laws or regulations now in force" were retained, because these words were incorporated in the Letters Patent and were made of general application as governing all the provisions thereof by a separate clause. The Judges who gave the Calcutta decision on the other hand inferred from this change that the appellate jurisdiction of the High Court as specified in clause 16 was confined only to the jurisdiction to hear appeals from the civil Courts mentioned in that clause and appeals under Acts passed and regulations in force up to the year 1865. In our opinion the learned Judges were in error in thinking that the appellate jurisdiction possessed by the High Court under the Letters Patent of 1865 was narrower than the jurisdiction it possessed under clause 15 of the Letters Patent ofWhatever jurisdiction had been conferred on the High Court by clause 15 of the Letters Patent of 1861 was incorporated in the Letters Patent of 1865 (as amended) and in the same measure and to the same extent by the provisions of clauses 16 and 44 of that charter.We are further of the opinion that the Calcutta decision is also erroneous when it expresses the view that the range and ambit of the power conferred on the High Court by section 108 of the Government of India Act of 1915 was limited by the provision of section 106(1) of the Act or by the provisions of clause 16 of the Letters Patent. There is no justification for placing such a construction on the plain and unambiguous words of that section. Section 108 is an enactment by itself and is unrestricted in its scope, and covers a much wider field than is covered by section 106 of the Government of India Act. The only association it has with section 106 is that in sequence is follows that section. It confers a power on the High Court to make rules in respect not only of the jurisdiction that it enjoyed in 1915 but it also conferred power on it to make rules in respect of jurisdiction which may hereafter be conferred on it by the enactments enacted by the Governor-General in Legislativefirst error lies in the assumption that the Gurdwara Act did not create new rights and did not create new appellate jurisdiction in the High Court which it did not possess before. The Gurdwara Act created peculiar rights in religious bodies and negatived the civil rights of large bodies of Mahants and other persons. Such rights were unknown before in civil law. The High Court as an established court of record was constituted a court of appeal from the decisions of the Gurdwara Tribunal. The principle enunciated in 1913 Appeal Cases 546 was applied by Sir George Rankin to appeals heard by the High Court under its newly created appellate jurisdiction, and we speak with great respect, in our opinion, very correctly. We have not been able to appreciate the special peculiarities of the rights created by the Trade Marks Act which place the appellate jurisdiction conferred on the High Court by section 76 on a different level from the jurisdiction created by the special provisions of the Gurdwara Act. The rights created by the Trade Marks Act are civil rights for the protection of persons carrying on trade under marks which have acquired reputation. The statute creates the Registrar a tribunal for safeguarding these rights and for giving effect to the rights created by the Act, and the High Court as such without more has been given appellate jurisdiction over the decisions of this tribunal. It is not easy to understand on what grounds it can be said that the High Court while exercising this appellate jurisdiction has to exercise it in a manner different from its other appellate jurisdiction. It seems to us that this is merely an addition of a new subject matter of appeal to the appellate jurisdiction already exercised by the High Court.The second error lies in the assumption that the appellate jurisdiction exercised by the High Court of Calcutta is much more limited than that possessed by the other High Courts. The matter has been discussed at length in an earlier part of thisour opinion that rule has neither any relevancy in this case nor is it in any manner in conflict with the rule laid down in 1913 Appeal Cases 546 or in the later Privy Council decisions above referred to. There, by section 188 of the Sea Customs Act the jurisdiction of the civil courts was excluded, and an order made by the Collector on an appeal from an order of the Assistant Collector was made final. A suit was filed to challenge the order of the Collector on the ground that the finality declared by section 188 was no bar to such a suit in a civil court. That contention was negatived on the ground that when a liability not existing in common law is created by a statute which at the same time gives a special and particular remedy for enforcing it, with respect to that class it has always been held that the party must adopt the form of remedy given by the statute. The Trade Marks Act has not created any special forum for the hearing of an appeal as had been created by the Sea Customs Act. On the other hand, the Trade Marks Act has conferred appellate jurisdiction on an established court of law. Further, the Sea Customs Act had made the order of the Collector passed on an appeal final. There is no such provision in the Trade Marks Act. It has only declared that an appeal shall lie to the High Court from the order of the Registrar and has said nothing more about it. Clearly, therefore, to this case the rule enunciated in 1913 Appeal Cases 546 had application, and the rule stated in Mask case [67 I.A. 222.] had no bearing on this point.As regards the merits of the case we are in entire agreement with the decision of the High Court and with the reasons given in thatprinciples of law applicable to such cases are well-settled. The burden of proving that the trade mark which a person seeks to register is not likely to deceive or to cause confusion is upon the applicant. It is for him to satisfy the Registrar that his trade mark does not fall within the prohibition of section 8 and therefore it should be registered. Moreover, in deciding whether a particular trade mark is likely to deceive or cause confusion that duty is not discharged by arriving at the result by merely comparing it with the trade mark which is already registered and whose proprietor is offering opposition to the registration of the mark. The real question to decide in such cases is to see as to how a purchaser, who must be looked upon as an average man of ordinary intelligence, would react to a particular trade mark, what association he would form by looking at the trade mark, and in what respect he would connect the trade mark with the goods which he would be purchasing.So far as the present case is concerned the goods sold under the respondents trade mark are well-known and are commonly asked for as "Eagley" or "Eagle", and the particular feature of the trade mark of the respondents by which the goods are identified and which is associated in the mind of the purchaser is the representation of an Eagle appearing in the trade mark. If the trade mark conveys the idea of an Eagle and if an unwary purchaser is likely to accept the goods of the appellants as answering the requisition for Eagle goods, then undoubtedly the appellants trade mark is one which would be likely to deceive or cause confusion. It is clear to us that the bird in the appellants trade mark is likely to be mistaken by an average man of ordinary intelligence as an Eagle and if he asked for Eagle goods and he got goods bearing this trade mark of the appellants it is not likely that he would reject them by saying that this cannot be an Eagle. Two years prior to be the application for registration, the respondents described this particular bird an Eagle and called their brand Eagle Brand, The same bird was later on described by them a vulture and the explanation offered was that they so described owing to an honest and bona fide mistake. We have no hesitation in holding that the appellants camouflaging an Eagle into a vulture by calling it such is likely to cause confusion. Whatever else may be said about the bird in the appellants trade mark, it certainly does not represent a vulture or look like a vulture of any form or shape. What has been named by the plaintiffs as a vulture is really an eagle seated in a different posture. That being so, the High Court was perfectly right in the view that Mr. Justice Shah was in error in interfering with the discretion possessed and exercised by the Registrar, and that the appellants had failed to discharge the onus that rested heavily on them to prove that the trade mark which they wanted the Registrar to register was not likely to deceive or cause confusion.The learned counsel for the appellants contended that the question whether his clients trade mark was likely to deceive or cause confusion had been concluded by the earlier judgment of the Madras High Court in the passing off action and already referred to in an early part of the judgment. It is quite clear that the onus in a passing off action rests on the plaintiff to prove whether there is likelihood of the defendant goods being passed off as the goods of the plaintiff. It was not denied that the general get up of the appellants trade mark is different from the general get up of the respondents trade mark. That being so, it was held by the Madras High Court in the passing off action that on the meagre material placed on record by the plaintiffs they had failed to prove that the defendants goods could be passed off as the goods of the plaintiffs. The considerations relevant in a passing off action are somewhat different than they are on an application made for registration of a mark under the Trade Marks Act and that being so the decision of the Madras High Court referred to above could not be considered as relevant on the questions that the Registrar had to decide under the provisions of the Act. | 0 | 7,094 | 3,429 | ### Instruction:
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that an appeal shall lie to the High Court from the order of the Registrar and has said nothing more about it. Clearly, therefore, to this case the rule enunciated in 1913 Appeal Cases 546 had application, and the rule stated in Mask case [67 I.A. 222.] had no bearing on this point.As regards the merits of the case we are in entire agreement with the decision of the High Court and with the reasons given in that decision. The relevant part of section 8 of the Trade Marks Act is in these terms :"No trade mark nor part of a trade mark shall be registered which consists of, or contains, any scandalous design, or any matter the use of which would by reason of its being likely to deceive or to cause confusion or otherwise, be disentitled to protection in a court of justice".16. Under this section an application made to register a trade mark which is likely to deceive or to cause confusion has to be refused notwithstanding the fact that the mark might have no identity or close resemblance with any other trade mark. The Registrar has to come to a conclusion on this point independently of making any comparison of the mark with any other registered trade mark. What the Registrar has to see is whether looking at the circumstances of the case a particular trade mark is likely to deceive or to cause confusion.17. The principles of law applicable to such cases are well-settled. The burden of proving that the trade mark which a person seeks to register is not likely to deceive or to cause confusion is upon the applicant. It is for him to satisfy the Registrar that his trade mark does not fall within the prohibition of section 8 and therefore it should be registered. Moreover, in deciding whether a particular trade mark is likely to deceive or cause confusion that duty is not discharged by arriving at the result by merely comparing it with the trade mark which is already registered and whose proprietor is offering opposition to the registration of the mark. The real question to decide in such cases is to see as to how a purchaser, who must be looked upon as an average man of ordinary intelligence, would react to a particular trade mark, what association he would form by looking at the trade mark, and in what respect he would connect the trade mark with the goods which he would be purchasing.So far as the present case is concerned the goods sold under the respondents trade mark are well-known and are commonly asked for as "Eagley" or "Eagle", and the particular feature of the trade mark of the respondents by which the goods are identified and which is associated in the mind of the purchaser is the representation of an Eagle appearing in the trade mark. If the trade mark conveys the idea of an Eagle and if an unwary purchaser is likely to accept the goods of the appellants as answering the requisition for Eagle goods, then undoubtedly the appellants trade mark is one which would be likely to deceive or cause confusion. It is clear to us that the bird in the appellants trade mark is likely to be mistaken by an average man of ordinary intelligence as an Eagle and if he asked for Eagle goods and he got goods bearing this trade mark of the appellants it is not likely that he would reject them by saying that this cannot be an Eagle. Two years prior to be the application for registration, the respondents described this particular bird an Eagle and called their brand Eagle Brand, The same bird was later on described by them a vulture and the explanation offered was that they so described owing to an honest and bona fide mistake. We have no hesitation in holding that the appellants camouflaging an Eagle into a vulture by calling it such is likely to cause confusion. Whatever else may be said about the bird in the appellants trade mark, it certainly does not represent a vulture or look like a vulture of any form or shape. What has been named by the plaintiffs as a vulture is really an eagle seated in a different posture. That being so, the High Court was perfectly right in the view that Mr. Justice Shah was in error in interfering with the discretion possessed and exercised by the Registrar, and that the appellants had failed to discharge the onus that rested heavily on them to prove that the trade mark which they wanted the Registrar to register was not likely to deceive or cause confusion.The learned counsel for the appellants contended that the question whether his clients trade mark was likely to deceive or cause confusion had been concluded by the earlier judgment of the Madras High Court in the passing off action and already referred to in an early part of the judgment. It is quite clear that the onus in a passing off action rests on the plaintiff to prove whether there is likelihood of the defendant goods being passed off as the goods of the plaintiff. It was not denied that the general get up of the appellants trade mark is different from the general get up of the respondents trade mark. That being so, it was held by the Madras High Court in the passing off action that on the meagre material placed on record by the plaintiffs they had failed to prove that the defendants goods could be passed off as the goods of the plaintiffs. The considerations relevant in a passing off action are somewhat different than they are on an application made for registration of a mark under the Trade Marks Act and that being so the decision of the Madras High Court referred to above could not be considered as relevant on the questions that the Registrar had to decide under the provisions of the Act.18.
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0
### Explanation:
suit was filed to challenge the order of the Collector on the ground that the finality declared by section 188 was no bar to such a suit in a civil court. That contention was negatived on the ground that when a liability not existing in common law is created by a statute which at the same time gives a special and particular remedy for enforcing it, with respect to that class it has always been held that the party must adopt the form of remedy given by the statute. The Trade Marks Act has not created any special forum for the hearing of an appeal as had been created by the Sea Customs Act. On the other hand, the Trade Marks Act has conferred appellate jurisdiction on an established court of law. Further, the Sea Customs Act had made the order of the Collector passed on an appeal final. There is no such provision in the Trade Marks Act. It has only declared that an appeal shall lie to the High Court from the order of the Registrar and has said nothing more about it. Clearly, therefore, to this case the rule enunciated in 1913 Appeal Cases 546 had application, and the rule stated in Mask case [67 I.A. 222.] had no bearing on this point.As regards the merits of the case we are in entire agreement with the decision of the High Court and with the reasons given in thatprinciples of law applicable to such cases are well-settled. The burden of proving that the trade mark which a person seeks to register is not likely to deceive or to cause confusion is upon the applicant. It is for him to satisfy the Registrar that his trade mark does not fall within the prohibition of section 8 and therefore it should be registered. Moreover, in deciding whether a particular trade mark is likely to deceive or cause confusion that duty is not discharged by arriving at the result by merely comparing it with the trade mark which is already registered and whose proprietor is offering opposition to the registration of the mark. The real question to decide in such cases is to see as to how a purchaser, who must be looked upon as an average man of ordinary intelligence, would react to a particular trade mark, what association he would form by looking at the trade mark, and in what respect he would connect the trade mark with the goods which he would be purchasing.So far as the present case is concerned the goods sold under the respondents trade mark are well-known and are commonly asked for as "Eagley" or "Eagle", and the particular feature of the trade mark of the respondents by which the goods are identified and which is associated in the mind of the purchaser is the representation of an Eagle appearing in the trade mark. If the trade mark conveys the idea of an Eagle and if an unwary purchaser is likely to accept the goods of the appellants as answering the requisition for Eagle goods, then undoubtedly the appellants trade mark is one which would be likely to deceive or cause confusion. It is clear to us that the bird in the appellants trade mark is likely to be mistaken by an average man of ordinary intelligence as an Eagle and if he asked for Eagle goods and he got goods bearing this trade mark of the appellants it is not likely that he would reject them by saying that this cannot be an Eagle. Two years prior to be the application for registration, the respondents described this particular bird an Eagle and called their brand Eagle Brand, The same bird was later on described by them a vulture and the explanation offered was that they so described owing to an honest and bona fide mistake. We have no hesitation in holding that the appellants camouflaging an Eagle into a vulture by calling it such is likely to cause confusion. Whatever else may be said about the bird in the appellants trade mark, it certainly does not represent a vulture or look like a vulture of any form or shape. What has been named by the plaintiffs as a vulture is really an eagle seated in a different posture. That being so, the High Court was perfectly right in the view that Mr. Justice Shah was in error in interfering with the discretion possessed and exercised by the Registrar, and that the appellants had failed to discharge the onus that rested heavily on them to prove that the trade mark which they wanted the Registrar to register was not likely to deceive or cause confusion.The learned counsel for the appellants contended that the question whether his clients trade mark was likely to deceive or cause confusion had been concluded by the earlier judgment of the Madras High Court in the passing off action and already referred to in an early part of the judgment. It is quite clear that the onus in a passing off action rests on the plaintiff to prove whether there is likelihood of the defendant goods being passed off as the goods of the plaintiff. It was not denied that the general get up of the appellants trade mark is different from the general get up of the respondents trade mark. That being so, it was held by the Madras High Court in the passing off action that on the meagre material placed on record by the plaintiffs they had failed to prove that the defendants goods could be passed off as the goods of the plaintiffs. The considerations relevant in a passing off action are somewhat different than they are on an application made for registration of a mark under the Trade Marks Act and that being so the decision of the Madras High Court referred to above could not be considered as relevant on the questions that the Registrar had to decide under the provisions of the Act.
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Branch Manager, Bajaj Allianz Life Insurance Company Ltd and Others Vs. Dalbir Kaur | alcohol abuse and that the facts which were in the knowledge of the proposer had not been disclosed. This brings the ground for repudiation squarely within the principles which have been formulated by this Court in the decisions to which a reference has been made earlier. In Life Insurance Corporation of India v. Asha Goel, this Court held: 12...The contracts of insurance including the contract of life assurance are contracts uberrima fides and every fact of material (sic material fact) must be disclosed, otherwise, there is good ground for rescission of the contract. The duty to disclose material facts continues right up to the conclusion of the contract and also implies any material alteration in the character of risk which may take place between the proposal and its acceptance. If there is any misstatements or suppression of material facts, the policy can be called into question. For determination of the question whether there has been suppression of any material facts it may be necessary to also examine whether the suppression relates to a fact which is in the exclusive knowledge of the person intending to take the policy and it could not be ascertained by reasonable enquiry by a prudent person. 10. This has been reiterated in the judgments in P.C. Chacko v. Chairman, Life Insurance Corporation of India and Satwant Kaur Sandhu v. New India Assurance Co. Limited. In Satwant Kaur Sandhu v. New India Assurance Co. Ltd., at the time of obtaining the Mediclaim policy, the insured suffered from chronic diabetes and renal failure, but failed to disclose the details of these illnesses in the policy proposal form. Upholding the repudiation of liability by the insurance company, this Court held: 25. The upshot of the entire discussion is that in a contract of insurance, any fact which would influence the mind of a prudent insurer in deciding whether to accept or not to accept the risk is a material fact. If the proposer has knowledge of such fact, he is obliged to disclose it particularly while answering questions in the proposal form. Needless to emphasise that any inaccurate answer will entitle the insurer to repudiate his liability because there is clear presumption that any information sought for in the proposal form is material for the purpose of entering into a contract of insurance. 11. Recently, this Court in Reliance Life Insurance Co. Ltd. v. Rekhaben Nareshbhai Rathod (2019) 6 SCC 175 , has set aside the judgment of the NCDRC, whereby the NCDRC had held that the failure of the insured to disclose a previous insurance policy as required under the policy proposal form would not influence the decision of a prudent insurer to issue the policy in question and therefore the insurer was disentitled from repudiating its liability. This Court, while allowing the repudiation of the insurance claim, held: 30. It is standard practice for the insurer to set out in the application a series of specific questions regarding the applicants health history and other matters relevant to insurability. The object of the proposal form is to gather information about a potential client, allowing the insurer to get all information which is material to the insurer to know in order to assess the risk and fix the premium for each potential client. Proposal forms are a significant part of the disclosure procedure and warrant accuracy of statements. Utmost care must be exercised in filling the proposal form. In a proposal form the applicant declares that she/he warrants truth. The contractual duty so imposed is such that any suppression, untruth or inaccuracy in the statement in the proposal form will be considered as a breach of the duty of good faith and will render the policy voidable by the insurer. The system of adequate disclosure helps buyers and sellers of insurance policies to meet at a common point and narrow down the gap of information asymmetries. This allows the parties to serve their interests better and understand the true extent of the contractual agreement. 31. The finding of a material misrepresentation or concealment in insurance has a significant effect upon both the insured and the insurer in the event of a dispute. The fact it would influence the decision of a prudent insurer in deciding as to whether or not to accept a risk is a material fact. As this Court held in Satwant Kaur (supra) there is a clear presumption that any information sought for in the proposal form is material for the purpose of entering into a contract of insurance. Each representation or statement may be material to the risk. The insurance company may still offer insurance protection on altered terms. 12. The decision of this Court in Sulbha Prakash Motegaonkar v. Life Insurance Corporation of India, which has been relied upon by the NCDRC, is clearly distinguishable. In that case, the assured suffered a myocardial infarction and succumbed to it. The claim was repudiated by the insurance company on the ground that there was a suppression of a pre-existing lumbar spondylitis. It was in this background that this Court held that the alleged concealment was of such a nature that would not dis-entitle the deceased from getting his life insured. In other words, the pre-existing ailment was clearly unrelated to the cause of death. This Court had also observed in its decision that the ailment concealed by the deceased was not a life-threatening disease. This decision must, therefore, be distinguished from the factual position as it has emerged before this Court. 13. The medical records which have been obtained during the course of the investigation clearly indicate that the deceased was suffering from a serious preexisting medical condition which was not disclosed to the insurer. In fact, the deceased was hospitalized to undergo treatment for such condition in proximity to the date of his death, which was also not disclosed in spite of the specific queries relating to any ailment, hospitalization or treatment undergone by the proposer in Column 22 of the policy proposal form. | 1[ds]9. A contract of insurance is one of utmost good faith. A proposer who seeks to obtain a policy of life insurance is duty bound to disclose all material facts bearing upon the issue as to whether the insurer would consider it appropriate to assume the risk which is proposed. It is with this principle in view that the proposal form requires a specific disclosure of pre-existing ailments, so as to enable the insurer to arrive at a considered decision based on the actuarial risk. In the present case, as we have indicated, the proposer failed to disclose the vomiting of blood which had taken place barely a month prior to the issuance of the policy of insurance and of the hospitalization which had been occasioned as a consequence. The investigation by the insurer indicated that the assured was suffering from a pre-existing ailment, consequent upon alcohol abuse and that the facts which were in the knowledge of the proposer had not been disclosed. This brings the ground for repudiation squarely within the principles which have been formulated by this Court in the decisions to which a reference has been made earlier. In Life Insurance Corporation of India v. Asha Goel, this Court held:12...The contracts of insurance including the contract of life assurance are contracts uberrima fides and every fact of material (sic material fact) must be disclosed, otherwise, there is good ground for rescission of the contract. The duty to disclose material facts continues right up to the conclusion of the contract and also implies any material alteration in the character of risk which may take place between the proposal and its acceptance. If there is any misstatements or suppression of material facts, the policy can be called into question. For determination of the question whether there has been suppression of any material facts it may be necessary to also examine whether the suppression relates to a fact which is in the exclusive knowledge of the person intending to take the policy and it could not be ascertained by reasonable enquiry by a prudent person.11. Recently, this Court in Reliance Life Insurance Co. Ltd. v. Rekhaben Nareshbhai Rathod(2019) 6 SCC 175 , has set aside the judgment of the NCDRC, whereby the NCDRC had held that the failure of the insured to disclose a previous insurance policy as required under the policy proposal form would not influence the decision of a prudent insurer to issue the policy in question and therefore the insurer was disentitled from repudiating its liability. This Court, while allowing the repudiation of the insurance claim, held:30. It is standard practice for the insurer to set out in the application a series of specific questions regarding the applicants health history and other matters relevant to insurability. The object of the proposal form is to gather information about a potential client, allowing the insurer to get all information which is material to the insurer to know in order to assess the risk and fix the premium for each potential client. Proposal forms are a significant part of the disclosure procedure and warrant accuracy of statements. Utmost care must be exercised in filling the proposal form. In a proposal form the applicant declares that she/he warrants truth. The contractual duty so imposed is such that any suppression, untruth or inaccuracy in the statement in the proposal form will be considered as a breach of the duty of good faith and will render the policy voidable by the insurer. The system of adequate disclosure helps buyers and sellers of insurance policies to meet at a common point and narrow down the gap of information asymmetries. This allows the parties to serve their interests better and understand the true extent of the contractual agreement.31. The finding of a material misrepresentation or concealment in insurance has a significant effect upon both the insured and the insurer in the event of a dispute. The fact it would influence the decision of a prudent insurer in deciding as to whether or not to accept a risk is a material fact. As this Court held in Satwant Kaur (supra) there is a clear presumption that any information sought for in the proposal form is material for the purpose of entering into a contract of insurance. Each representation or statement may be material to the risk. The insurance company may still offer insurance protection on altered terms.12. The decision of this Court in Sulbha Prakash Motegaonkar v. Life Insurance Corporation of India, which has been relied upon by the NCDRC, is clearly distinguishable. In that case, the assured suffered a myocardial infarction and succumbed to it. The claim was repudiated by the insurance company on the ground that there was a suppression of a pre-existing lumbar spondylitis. It was in this background that this Court held that the alleged concealment was of such a nature that would not dis-entitle the deceased from getting his life insured. In other words, the pre-existing ailment was clearly unrelated to the cause of death. This Court had also observed in its decision that the ailment concealed by the deceased was not a life-threatening disease. This decision must, therefore, be distinguished from the factual position as it has emerged before this Court.13. The medical records which have been obtained during the course of the investigation clearly indicate that the deceased was suffering from a serious preexisting medical condition which was not disclosed to the insurer. In fact, the deceased was hospitalized to undergo treatment for such condition in proximity to the date of his death, which was also not disclosed in spite of the specific queries relating to any ailment, hospitalization or treatment undergone by the proposer in Column 22 of the policy proposal form. | 1 | 2,328 | 1,026 | ### Instruction:
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alcohol abuse and that the facts which were in the knowledge of the proposer had not been disclosed. This brings the ground for repudiation squarely within the principles which have been formulated by this Court in the decisions to which a reference has been made earlier. In Life Insurance Corporation of India v. Asha Goel, this Court held: 12...The contracts of insurance including the contract of life assurance are contracts uberrima fides and every fact of material (sic material fact) must be disclosed, otherwise, there is good ground for rescission of the contract. The duty to disclose material facts continues right up to the conclusion of the contract and also implies any material alteration in the character of risk which may take place between the proposal and its acceptance. If there is any misstatements or suppression of material facts, the policy can be called into question. For determination of the question whether there has been suppression of any material facts it may be necessary to also examine whether the suppression relates to a fact which is in the exclusive knowledge of the person intending to take the policy and it could not be ascertained by reasonable enquiry by a prudent person. 10. This has been reiterated in the judgments in P.C. Chacko v. Chairman, Life Insurance Corporation of India and Satwant Kaur Sandhu v. New India Assurance Co. Limited. In Satwant Kaur Sandhu v. New India Assurance Co. Ltd., at the time of obtaining the Mediclaim policy, the insured suffered from chronic diabetes and renal failure, but failed to disclose the details of these illnesses in the policy proposal form. Upholding the repudiation of liability by the insurance company, this Court held: 25. The upshot of the entire discussion is that in a contract of insurance, any fact which would influence the mind of a prudent insurer in deciding whether to accept or not to accept the risk is a material fact. If the proposer has knowledge of such fact, he is obliged to disclose it particularly while answering questions in the proposal form. Needless to emphasise that any inaccurate answer will entitle the insurer to repudiate his liability because there is clear presumption that any information sought for in the proposal form is material for the purpose of entering into a contract of insurance. 11. Recently, this Court in Reliance Life Insurance Co. Ltd. v. Rekhaben Nareshbhai Rathod (2019) 6 SCC 175 , has set aside the judgment of the NCDRC, whereby the NCDRC had held that the failure of the insured to disclose a previous insurance policy as required under the policy proposal form would not influence the decision of a prudent insurer to issue the policy in question and therefore the insurer was disentitled from repudiating its liability. This Court, while allowing the repudiation of the insurance claim, held: 30. It is standard practice for the insurer to set out in the application a series of specific questions regarding the applicants health history and other matters relevant to insurability. The object of the proposal form is to gather information about a potential client, allowing the insurer to get all information which is material to the insurer to know in order to assess the risk and fix the premium for each potential client. Proposal forms are a significant part of the disclosure procedure and warrant accuracy of statements. Utmost care must be exercised in filling the proposal form. In a proposal form the applicant declares that she/he warrants truth. The contractual duty so imposed is such that any suppression, untruth or inaccuracy in the statement in the proposal form will be considered as a breach of the duty of good faith and will render the policy voidable by the insurer. The system of adequate disclosure helps buyers and sellers of insurance policies to meet at a common point and narrow down the gap of information asymmetries. This allows the parties to serve their interests better and understand the true extent of the contractual agreement. 31. The finding of a material misrepresentation or concealment in insurance has a significant effect upon both the insured and the insurer in the event of a dispute. The fact it would influence the decision of a prudent insurer in deciding as to whether or not to accept a risk is a material fact. As this Court held in Satwant Kaur (supra) there is a clear presumption that any information sought for in the proposal form is material for the purpose of entering into a contract of insurance. Each representation or statement may be material to the risk. The insurance company may still offer insurance protection on altered terms. 12. The decision of this Court in Sulbha Prakash Motegaonkar v. Life Insurance Corporation of India, which has been relied upon by the NCDRC, is clearly distinguishable. In that case, the assured suffered a myocardial infarction and succumbed to it. The claim was repudiated by the insurance company on the ground that there was a suppression of a pre-existing lumbar spondylitis. It was in this background that this Court held that the alleged concealment was of such a nature that would not dis-entitle the deceased from getting his life insured. In other words, the pre-existing ailment was clearly unrelated to the cause of death. This Court had also observed in its decision that the ailment concealed by the deceased was not a life-threatening disease. This decision must, therefore, be distinguished from the factual position as it has emerged before this Court. 13. The medical records which have been obtained during the course of the investigation clearly indicate that the deceased was suffering from a serious preexisting medical condition which was not disclosed to the insurer. In fact, the deceased was hospitalized to undergo treatment for such condition in proximity to the date of his death, which was also not disclosed in spite of the specific queries relating to any ailment, hospitalization or treatment undergone by the proposer in Column 22 of the policy proposal form.
### Response:
1
### Explanation:
9. A contract of insurance is one of utmost good faith. A proposer who seeks to obtain a policy of life insurance is duty bound to disclose all material facts bearing upon the issue as to whether the insurer would consider it appropriate to assume the risk which is proposed. It is with this principle in view that the proposal form requires a specific disclosure of pre-existing ailments, so as to enable the insurer to arrive at a considered decision based on the actuarial risk. In the present case, as we have indicated, the proposer failed to disclose the vomiting of blood which had taken place barely a month prior to the issuance of the policy of insurance and of the hospitalization which had been occasioned as a consequence. The investigation by the insurer indicated that the assured was suffering from a pre-existing ailment, consequent upon alcohol abuse and that the facts which were in the knowledge of the proposer had not been disclosed. This brings the ground for repudiation squarely within the principles which have been formulated by this Court in the decisions to which a reference has been made earlier. In Life Insurance Corporation of India v. Asha Goel, this Court held:12...The contracts of insurance including the contract of life assurance are contracts uberrima fides and every fact of material (sic material fact) must be disclosed, otherwise, there is good ground for rescission of the contract. The duty to disclose material facts continues right up to the conclusion of the contract and also implies any material alteration in the character of risk which may take place between the proposal and its acceptance. If there is any misstatements or suppression of material facts, the policy can be called into question. For determination of the question whether there has been suppression of any material facts it may be necessary to also examine whether the suppression relates to a fact which is in the exclusive knowledge of the person intending to take the policy and it could not be ascertained by reasonable enquiry by a prudent person.11. Recently, this Court in Reliance Life Insurance Co. Ltd. v. Rekhaben Nareshbhai Rathod(2019) 6 SCC 175 , has set aside the judgment of the NCDRC, whereby the NCDRC had held that the failure of the insured to disclose a previous insurance policy as required under the policy proposal form would not influence the decision of a prudent insurer to issue the policy in question and therefore the insurer was disentitled from repudiating its liability. This Court, while allowing the repudiation of the insurance claim, held:30. It is standard practice for the insurer to set out in the application a series of specific questions regarding the applicants health history and other matters relevant to insurability. The object of the proposal form is to gather information about a potential client, allowing the insurer to get all information which is material to the insurer to know in order to assess the risk and fix the premium for each potential client. Proposal forms are a significant part of the disclosure procedure and warrant accuracy of statements. Utmost care must be exercised in filling the proposal form. In a proposal form the applicant declares that she/he warrants truth. The contractual duty so imposed is such that any suppression, untruth or inaccuracy in the statement in the proposal form will be considered as a breach of the duty of good faith and will render the policy voidable by the insurer. The system of adequate disclosure helps buyers and sellers of insurance policies to meet at a common point and narrow down the gap of information asymmetries. This allows the parties to serve their interests better and understand the true extent of the contractual agreement.31. The finding of a material misrepresentation or concealment in insurance has a significant effect upon both the insured and the insurer in the event of a dispute. The fact it would influence the decision of a prudent insurer in deciding as to whether or not to accept a risk is a material fact. As this Court held in Satwant Kaur (supra) there is a clear presumption that any information sought for in the proposal form is material for the purpose of entering into a contract of insurance. Each representation or statement may be material to the risk. The insurance company may still offer insurance protection on altered terms.12. The decision of this Court in Sulbha Prakash Motegaonkar v. Life Insurance Corporation of India, which has been relied upon by the NCDRC, is clearly distinguishable. In that case, the assured suffered a myocardial infarction and succumbed to it. The claim was repudiated by the insurance company on the ground that there was a suppression of a pre-existing lumbar spondylitis. It was in this background that this Court held that the alleged concealment was of such a nature that would not dis-entitle the deceased from getting his life insured. In other words, the pre-existing ailment was clearly unrelated to the cause of death. This Court had also observed in its decision that the ailment concealed by the deceased was not a life-threatening disease. This decision must, therefore, be distinguished from the factual position as it has emerged before this Court.13. The medical records which have been obtained during the course of the investigation clearly indicate that the deceased was suffering from a serious preexisting medical condition which was not disclosed to the insurer. In fact, the deceased was hospitalized to undergo treatment for such condition in proximity to the date of his death, which was also not disclosed in spite of the specific queries relating to any ailment, hospitalization or treatment undergone by the proposer in Column 22 of the policy proposal form.
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Oriental Insurance Company Limited Vs. Meena Tukaram Jadhav & Others | not include that which claimant receives on account of other forms of death, which he would have received even apart from accidental death. Thus, such pecuniary advantage would have no correlation to the accidental death for which compensation is computed. Any amount received or receivable not only on account of the accidental death but that would have come to the claimant even otherwise, could not be construed to be the pecuniary advantage, liable for deduction. However, where the employer insures his employee, as against injury or death arising out of an accident, any amount received (sic) out of such insurance on the happening of such incidence may be an amount liable for deduction. However, our legislature has taken note of such contingency, through the proviso of section 95. Under it, the liability of the insurer is excluded in respect of injury or death arising out of (Sic and) in the course of employment of an employee." (underline added)22. Thus, in the case of an ordinary life insurance, if on account of death of person in a motor accident, the legal representatives receive the amount under the policy, the same cannot be excluded as such benefit has no correlation to the accidental death. The said amount would have come to the legal representatives even in the case of natural death. But if the employee is insured by his employer against injury or death arising out of an accident, any amount received under such policy on accidental death would be liable for deduction from compensation. This law laid down in the case of Helen Rebello has not been disturbed by the Apex Court in the subsequent decision in the case of Sunil Sharma and others.23. In the facts of the case, in the cross examination of Mr. Venugopal what is brought on record is that there is a group insurance scheme for the employees of the SCI. The entire premium is paid by SCI which was not recovered from its employees. In the said scheme, a sum of Rs.14,00,000/- was received by the legal representatives of the deceased Pramod. Mr. Venugopal in the cross examination stated that the legal representatives of the deceased received the said amount "Purely on account of his death in accident under the Group Insurance Scheme". Surprisingly, there was no re-examination of the witness made by the Advocate for the claimants for obtaining a clarification whether the insurance was an accident insurance or general insurance. Even the policy of insurance is not placed on record by the claimants. The statement of Mr. Venugopal is that the amount was received purely on account of death of the deceased in accident which may suggest that the policy was an accident policy. In view of this statement, the burden was on the claimants to prove the contents of the policy. However, the claimants did not produce the policy. Hence, the contention of the Appellant that the sum of Rs.14,00,000/- was the pecuniary advantage received by the legal representatives of the deceased on account of accident will have to be accepted. In the circumstances, a sum of Rs.14,00,000/- will have to be deducted from the compensation payable to the deceased. Thus, from the aforesaid amount of Rs.44,35,000/-, a sum of Rs.14,00,000/will have to be deducted. Thus, the total compensation payable will be Rs.30,35,000/-. Though, the cross objection is preferred by the first to third claimants, the benefit of enhancement will be available to the other claimants as well.24. We must note here that in the other appeals, there is no serious challenge to the quantum of compensation and the real challenge is to the apportionment of liability between the two insurance companies. In the claim for compensation filed by Ms Meena Jadhav, Dr. Naresh Khanna, an Orthopaedic Surgeon has duly proved the Disability certificate at Exh.22. He assessed the permanent partial disability at 44%. She required hospitalization in Nanavati Hospital, Bombay. An implant was inserted which was required to be removed after about two years. The details of compensation granted to the said claimant read thus:1) Pain and sufferingsRs.30,000.002) Injury and disabilityRs.40,000.003) Medical expensesRs.38,950.004) Future prospectsRs.10,000.005) Loss of incomeRs.7,200.006) Conveyance chargesRs.5,000.007) Special dietRs.5,000.00Total1,36,150.50 25. As far as widow of deceased Pramod is concerned, in claim petition No.756 of 1989, she has been granted compensation of Rs.1,85,680/-. Some argument was canvassed as regards the payment of flying Allowance and difference in pay. The widow of deceased Pramod was at the relevant time Chief Air Hostess in Air India. On the basis of the documentary evidence at Exhibits 26 and 27, the Tribunal came to the conclusion that she had to take sick leave for 84 days on medical ground. For a period of 84 days, she was deprived of flying Allowance which is paid only to the Air Hostess on duty. The said flying Allowance was Rs.10,000/- per month. She had to take sick leave for 84 days as she was recovering from injuries. On the basis of the certificate at Exhibit-28, a finding was recorded that though her salary was Rs.46,000/- p.m, during the period of sick leave she received salary of Rs.17,853/- per month. The details of the compensation awarded to her is as under:(1) Medical BillsRs.12,680.00(2) Pain and sufferingsRs.25,000.00(3) Injury and disabilityRs.25,000.00(4) Flying allowanceRs.30,000.00(5) Difference amount of payRs.87,000.00(6) Conveyance chargesRs.3,000.00(7) Special DietRs.3,000.00TotalRs.1,85,680.00 26. It is not possible to find fault with the quantum of compensation.27. The remaining claim is by Prachi, a minor daughter of Pramod by way of claim application No.757 of 1999 Dr.Pandit, an Orthopaedic Surgeon proved the Disability certificate and assessed 30% partial permanent disability. The total amount of compensation was granted at Rs.65,000/- the bifurcation of which is as under:1) Pain and sufferingsRs.25,000.002) Injury and disabilityRs.25,000.003) Medical expensesRs.5,000.004) Conveyance chargesRs.2,500.005) Special dietRs.2,500.006) Future medical expensesRs.5,000.00TOTALRs.65,000.00 28. The compensation amount is reasonable which calls for no interference.29. Thus, the appeal No.573 of 2013, 700 of 2013, 1369 of 2012 must fail and First Appeal No.1630 of 2012 and Cross Objection Stamp No.26951 of 2013 must partly succeed. | 1[ds]15. This finding will have to be appreciated in the light of the fact that the widow of deceased Pramod stated in herthat the truck came on its wrong side. She deposed that at that time, the truck was being driven in a very high speed. From deposition it is clear that the auto rickshaw was being driven on its correct side at the time of impact. On the other hand, no attempt has been made by theto examine the driver or cleaner of the offending truck insured with it. In fact, an adverse inference ought to have been drawn against the appellant for not examining the driver of the truck. There is a passing observation made by the learned Member that as the truck is a larger and heavier vehicle than the auto rickshaw, the driver of the truck owes more duty and responsibility to take proper care and caution. Even if we ignore this observation, for the reasons which we have set out, no fault can be found with the apportionment of liability between the two insurance companies made by the Tribunal. We must also note that both the insurance companies are the Government of India Undertakings and therefore, we fail to understand the relevance of this dispute between the two companies on the apportionment.Thus, in the case of an ordinary life insurance, if on account of death of person in a motor accident, the legal representatives receive the amount under the policy, the same cannot be excluded as such benefit has no correlation to the accidental death. The said amount would have come to the legal representatives even in the case of natural death. But if the employee is insured by his employer against injury or death arising out of an accident, any amount received under such policy on accidental death would be liable for deduction from compensation. This law laid down in the case of Helen Rebello has not been disturbed by the Apex Court in the subsequent decision in the case of Sunil Sharma and others.23. In the facts of the case, in the cross examination of Mr. Venugopal what is brought on record is that there is a group insurance scheme for the employees of the SCI. The entire premium is paid by SCI which was not recovered from its employees. In the said scheme, a sum of Rs.14,00,000/was received by the legal representatives of the deceased Pramod. Mr. Venugopal in the cross examination stated that the legal representatives of the deceased received the said amount "Purely on account of his death in accident under the Group Insurance Scheme". Surprisingly, there was noof the witness made by the Advocate for the claimants for obtaining a clarification whether the insurance was an accident insurance or general insurance. Even the policy of insurance is not placed on record by the claimants. The statement of Mr. Venugopal is that the amount was received purely on account of death of the deceased in accident which may suggest that the policy was an accident policy. In view of this statement, the burden was on the claimants to prove the contents of the policy. However, the claimants did not produce the policy. Hence, the contention of the Appellant that the sum of Rs.14,00,000/was the pecuniary advantage received by the legal representatives of the deceased on account of accident will have to be accepted. In the circumstances, a sum of Rs.14,00,000/will have to be deducted from the compensation payable to the deceased. Thus, from the aforesaid amount ofa sum of Rs.14,00,000/will have to be deducted. Thus, the total compensation payable will be Rs.Though, the cross objection is preferred by the first to third claimants, the benefit of enhancement will be available to the other claimants as well. | 1 | 5,695 | 681 | ### Instruction:
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not include that which claimant receives on account of other forms of death, which he would have received even apart from accidental death. Thus, such pecuniary advantage would have no correlation to the accidental death for which compensation is computed. Any amount received or receivable not only on account of the accidental death but that would have come to the claimant even otherwise, could not be construed to be the pecuniary advantage, liable for deduction. However, where the employer insures his employee, as against injury or death arising out of an accident, any amount received (sic) out of such insurance on the happening of such incidence may be an amount liable for deduction. However, our legislature has taken note of such contingency, through the proviso of section 95. Under it, the liability of the insurer is excluded in respect of injury or death arising out of (Sic and) in the course of employment of an employee." (underline added)22. Thus, in the case of an ordinary life insurance, if on account of death of person in a motor accident, the legal representatives receive the amount under the policy, the same cannot be excluded as such benefit has no correlation to the accidental death. The said amount would have come to the legal representatives even in the case of natural death. But if the employee is insured by his employer against injury or death arising out of an accident, any amount received under such policy on accidental death would be liable for deduction from compensation. This law laid down in the case of Helen Rebello has not been disturbed by the Apex Court in the subsequent decision in the case of Sunil Sharma and others.23. In the facts of the case, in the cross examination of Mr. Venugopal what is brought on record is that there is a group insurance scheme for the employees of the SCI. The entire premium is paid by SCI which was not recovered from its employees. In the said scheme, a sum of Rs.14,00,000/- was received by the legal representatives of the deceased Pramod. Mr. Venugopal in the cross examination stated that the legal representatives of the deceased received the said amount "Purely on account of his death in accident under the Group Insurance Scheme". Surprisingly, there was no re-examination of the witness made by the Advocate for the claimants for obtaining a clarification whether the insurance was an accident insurance or general insurance. Even the policy of insurance is not placed on record by the claimants. The statement of Mr. Venugopal is that the amount was received purely on account of death of the deceased in accident which may suggest that the policy was an accident policy. In view of this statement, the burden was on the claimants to prove the contents of the policy. However, the claimants did not produce the policy. Hence, the contention of the Appellant that the sum of Rs.14,00,000/- was the pecuniary advantage received by the legal representatives of the deceased on account of accident will have to be accepted. In the circumstances, a sum of Rs.14,00,000/- will have to be deducted from the compensation payable to the deceased. Thus, from the aforesaid amount of Rs.44,35,000/-, a sum of Rs.14,00,000/will have to be deducted. Thus, the total compensation payable will be Rs.30,35,000/-. Though, the cross objection is preferred by the first to third claimants, the benefit of enhancement will be available to the other claimants as well.24. We must note here that in the other appeals, there is no serious challenge to the quantum of compensation and the real challenge is to the apportionment of liability between the two insurance companies. In the claim for compensation filed by Ms Meena Jadhav, Dr. Naresh Khanna, an Orthopaedic Surgeon has duly proved the Disability certificate at Exh.22. He assessed the permanent partial disability at 44%. She required hospitalization in Nanavati Hospital, Bombay. An implant was inserted which was required to be removed after about two years. The details of compensation granted to the said claimant read thus:1) Pain and sufferingsRs.30,000.002) Injury and disabilityRs.40,000.003) Medical expensesRs.38,950.004) Future prospectsRs.10,000.005) Loss of incomeRs.7,200.006) Conveyance chargesRs.5,000.007) Special dietRs.5,000.00Total1,36,150.50 25. As far as widow of deceased Pramod is concerned, in claim petition No.756 of 1989, she has been granted compensation of Rs.1,85,680/-. Some argument was canvassed as regards the payment of flying Allowance and difference in pay. The widow of deceased Pramod was at the relevant time Chief Air Hostess in Air India. On the basis of the documentary evidence at Exhibits 26 and 27, the Tribunal came to the conclusion that she had to take sick leave for 84 days on medical ground. For a period of 84 days, she was deprived of flying Allowance which is paid only to the Air Hostess on duty. The said flying Allowance was Rs.10,000/- per month. She had to take sick leave for 84 days as she was recovering from injuries. On the basis of the certificate at Exhibit-28, a finding was recorded that though her salary was Rs.46,000/- p.m, during the period of sick leave she received salary of Rs.17,853/- per month. The details of the compensation awarded to her is as under:(1) Medical BillsRs.12,680.00(2) Pain and sufferingsRs.25,000.00(3) Injury and disabilityRs.25,000.00(4) Flying allowanceRs.30,000.00(5) Difference amount of payRs.87,000.00(6) Conveyance chargesRs.3,000.00(7) Special DietRs.3,000.00TotalRs.1,85,680.00 26. It is not possible to find fault with the quantum of compensation.27. The remaining claim is by Prachi, a minor daughter of Pramod by way of claim application No.757 of 1999 Dr.Pandit, an Orthopaedic Surgeon proved the Disability certificate and assessed 30% partial permanent disability. The total amount of compensation was granted at Rs.65,000/- the bifurcation of which is as under:1) Pain and sufferingsRs.25,000.002) Injury and disabilityRs.25,000.003) Medical expensesRs.5,000.004) Conveyance chargesRs.2,500.005) Special dietRs.2,500.006) Future medical expensesRs.5,000.00TOTALRs.65,000.00 28. The compensation amount is reasonable which calls for no interference.29. Thus, the appeal No.573 of 2013, 700 of 2013, 1369 of 2012 must fail and First Appeal No.1630 of 2012 and Cross Objection Stamp No.26951 of 2013 must partly succeed.
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15. This finding will have to be appreciated in the light of the fact that the widow of deceased Pramod stated in herthat the truck came on its wrong side. She deposed that at that time, the truck was being driven in a very high speed. From deposition it is clear that the auto rickshaw was being driven on its correct side at the time of impact. On the other hand, no attempt has been made by theto examine the driver or cleaner of the offending truck insured with it. In fact, an adverse inference ought to have been drawn against the appellant for not examining the driver of the truck. There is a passing observation made by the learned Member that as the truck is a larger and heavier vehicle than the auto rickshaw, the driver of the truck owes more duty and responsibility to take proper care and caution. Even if we ignore this observation, for the reasons which we have set out, no fault can be found with the apportionment of liability between the two insurance companies made by the Tribunal. We must also note that both the insurance companies are the Government of India Undertakings and therefore, we fail to understand the relevance of this dispute between the two companies on the apportionment.Thus, in the case of an ordinary life insurance, if on account of death of person in a motor accident, the legal representatives receive the amount under the policy, the same cannot be excluded as such benefit has no correlation to the accidental death. The said amount would have come to the legal representatives even in the case of natural death. But if the employee is insured by his employer against injury or death arising out of an accident, any amount received under such policy on accidental death would be liable for deduction from compensation. This law laid down in the case of Helen Rebello has not been disturbed by the Apex Court in the subsequent decision in the case of Sunil Sharma and others.23. In the facts of the case, in the cross examination of Mr. Venugopal what is brought on record is that there is a group insurance scheme for the employees of the SCI. The entire premium is paid by SCI which was not recovered from its employees. In the said scheme, a sum of Rs.14,00,000/was received by the legal representatives of the deceased Pramod. Mr. Venugopal in the cross examination stated that the legal representatives of the deceased received the said amount "Purely on account of his death in accident under the Group Insurance Scheme". Surprisingly, there was noof the witness made by the Advocate for the claimants for obtaining a clarification whether the insurance was an accident insurance or general insurance. Even the policy of insurance is not placed on record by the claimants. The statement of Mr. Venugopal is that the amount was received purely on account of death of the deceased in accident which may suggest that the policy was an accident policy. In view of this statement, the burden was on the claimants to prove the contents of the policy. However, the claimants did not produce the policy. Hence, the contention of the Appellant that the sum of Rs.14,00,000/was the pecuniary advantage received by the legal representatives of the deceased on account of accident will have to be accepted. In the circumstances, a sum of Rs.14,00,000/will have to be deducted from the compensation payable to the deceased. Thus, from the aforesaid amount ofa sum of Rs.14,00,000/will have to be deducted. Thus, the total compensation payable will be Rs.Though, the cross objection is preferred by the first to third claimants, the benefit of enhancement will be available to the other claimants as well.
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A.K. Gopalan Vs. The State Of Madras.Union Of India: Intervener | 10 were meant to be applicable under all the three contingencies referred to above. This is clear from the foot that provisions of paras 7, 9 and 10 have not been repeated or incorporated in paras 11 to 16, although it cannot be suggested that they were not to take effect on the happening of the second contingency. Again in the third contingency contemplated by the testator which is described in para 20, it is expressly stated that if no adoption is made, the eldest or any son of Gnambal would inherit the properties and he shall take the properties subject to the conditions mentioned in the will. The conditions spoken of here undoubtedly refer to the provisions made for the mother, wife and the two daughters of the testator as well as in respect to payment of debts and carrying out of the charities specified in para 10.(14 ) The changes that are to take effect on the happening of the second event are in regard to the bequests in favour of the adopted son. Under para 4 of the will, the adopted son was to get all the properties of the testator with the exception of those given to the two daughters, the mother and the wife. Under para 11, if the adoption is of a nephews son of the testator, the adopted son gets only the Kokkur properties and the reversionary interest in Nallathgudi village after the death of the testators wife and mother. The village Maruthanthanallur which would go to the adopted son under para 4 is taken away under para 11 and is given to Gnambal. She is also given the remaining interest in the Mayavaram house which was given to the adopted son under para6. Subject to the changes thus made, the provisions of paras 5, 6 and 7 would, in our opinion, still remain operative even if the person adopted was a nephews son of the testator. No change is made in paras, 11 to 16 with regard to the provision in para 5 of the will. In para 13 it is only stated that the village Kothangudi shall be enjoyed by Nagammal as stated in para5. It may be conceded that this statement by itself does not let in the entire provision of para 5, but that is not material for our present purpose. It is enough that para 5 has not been changed or altered in any way. The statement in para 13 may, after all, be loose expression which the testator used only for the purpose of emphasising that the Kothangudi village would be enjoyed by Nagammal even if Gnambals son was not adopted. This is not by way of making any new disposition, but only to affirm what has been already done. The affirmation of a portion of the provision which is perfectly superfluous cannot exclude the rest. It is somewhat difficult to say why the rest of the provisions in para 5, particularly the benefit that was meant to be given to Alamelu, was not repeated in para 13. It may be that the testator did not consider it necessary or it may be that it was due to inadvertence. It is to be noted here that the testator did not mention anywhere in paras 11 to 16 the small house trial was given absolutely to Nagammal under para 7. It was certainly not the intention of the testator that Nagammal would not have that house on the happening of the second contingency. If para 5 itself is held to be applicable and in our opinion it should be so held-there is no question of adding to or altering any of the words made use of by the testator. It is not a question of making a new will for the testator or inventing a bequest for certain persons simply because the will shows that they were the objects of the testators affection. The provision is in the will itself and it is only a question of interpretation as to whether it is applicable in the circumstances which have happened in the present case. The position, therefore, seems to be that the disposition made in paras 5, 6 and 7, which were in favour of the mother, the wife and the two daughters of the testator were meant to take effect immediately on the testators death. They were not contingent gifts in the sense of being made dependent upon the adoption of Gnambals son by the wife of the testator. Only the reversionary interest in the Mayavaram house, which was to vest in the adopted son under the provision of para 6 after the death of the widow and the mother was taken away from the adopted son and given to Gnambal in case the person adopted was not her own son. If the whole of para 5 remains operative the Injigudi house must also be deemed to have been given to Nagammal for her life and in fact the evidence is that she enjoyed it so long as she was alive. No difficulty also arises regarding the payment of Rs. 5,000.00 to Alamelu as has been stated by the High Court in its judgment.(15) Having regard to the meticulous care with which the testator seems to have attempted to provide for the different contingencies that might arise and the anxiety displayed by him in making an effective disposition of all the properties the testator owned, it is not probable that he would omit to make any provision regarding the future devolution of the Kothangudi village if he really thought that such direction had to be repeated in the latter part of the will. The omission of the gift of Rs. 5000.00 to Alamelu also cannot be explained on any other hypothesis. Is it not necessary for the purpose of the present case to invoke any rule of presumption against intestacy, but if the presumption exists at all, it certainly fortifies the conclusion which we have arrived at. | 1[ds](14 ) The changes that are to take effect on the happening of the second event are in regard to the bequests in favour of the adopted son. Under para 4 of the will, the adopted son was to get all the properties of the testator with the exception of those given to the two daughters, the mother and the wife. Under para 11, if the adoption is of a nephews son of the testator, the adopted son gets only the Kokkur properties and the reversionary interest in Nallathgudi village after the death of the testators wife and mother. The village Maruthanthanallur which would go to the adopted son under para 4 is taken away under para 11 and is given to Gnambal. She is also given the remaining interest in the Mayavaram house which was given to the adopted son underSubject to the changes thus made, the provisions of paras 5, 6 and 7 would, in our opinion, still remain operative even if the person adopted was a nephews son of the testator. No change is made in paras, 11 to 16 with regard to the provision in para 5 of the will. In para 13 it is only stated that the village Kothangudi shall be enjoyed by Nagammal as stated inIt may be conceded that this statement by itself does not let in the entire provision of para 5, but that is not material for our present purpose. It is enough that para 5 has not been changed or altered in any way. The statement in para 13 may, after all, be loose expression which the testator used only for the purpose of emphasising that the Kothangudi village would be enjoyed by Nagammal even if Gnambals son was not adopted. This is not by way of making any new disposition, but only to affirm what has been already done. The affirmation of a portion of the provision which is perfectly superfluous cannot exclude the rest. It is somewhat difficult to say why the rest of the provisions in para 5, particularly the benefit that was meant to be given to Alamelu, was not repeated in paraIt may be that the testator did not consider it necessary or it may be that it was due to inadvertence. It is to be noted here that the testator did not mention anywhere in paras 11 to 16 the small house trial was given absolutely to Nagammal under para 7. It was certainly not the intention of the testator that Nagammal would not have that house on the happening of the second contingency. If para 5 itself is held to be applicable and in our opinion it should be so held-there is no question of adding to or altering any of the words made use of by the testator. It is not a question of making a new will for the testator or inventing a bequest for certain persons simply because the will shows that they were the objects of the testators affection. The provision is in the will itself and it is only a question of interpretation as to whether it is applicable in the circumstances which have happened in the present case. The position, therefore, seems to be that the disposition made in paras 5, 6 and 7, which were in favour of the mother, the wife and the two daughters of the testator were meant to take effect immediately on the testators death. They were not contingent gifts in the sense of being made dependent upon the adoption of Gnambals son by the wife of the testator. Only the reversionary interest in the Mayavaram house, which was to vest in the adopted son under the provision of para 6 after the death of the widow and the mother was taken away from the adopted son and given to Gnambal in case the person adopted was not her own son. If the whole of para 5 remains operative the Injigudi house must also be deemed to have been given to Nagammal for her life and in fact the evidence is that she enjoyed it so long as she was alive. No difficulty also arises regarding the payment of Rs. 5,000.00 to Alamelu as has been stated by the High Court in its judgment.(15) Having regard to the meticulous care with which the testator seems to have attempted to provide for the different contingencies that might arise and the anxiety displayed by him in making an effective disposition of all the properties the testator owned, it is not probable that he would omit to make any provision regarding the future devolution of the Kothangudi village if he really thought that such direction had to be repeated in the latter part of the will. The omission of the gift of Rs. 5000.00 to Alamelu also cannot be explained on any other hypothesis. Is it not necessary for the purpose of the present case to invoke any rule of presumption against intestacy, but if the presumption exists at all, it certainly fortifies the conclusion which we have arrived at. | 1 | 3,933 | 907 | ### Instruction:
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10 were meant to be applicable under all the three contingencies referred to above. This is clear from the foot that provisions of paras 7, 9 and 10 have not been repeated or incorporated in paras 11 to 16, although it cannot be suggested that they were not to take effect on the happening of the second contingency. Again in the third contingency contemplated by the testator which is described in para 20, it is expressly stated that if no adoption is made, the eldest or any son of Gnambal would inherit the properties and he shall take the properties subject to the conditions mentioned in the will. The conditions spoken of here undoubtedly refer to the provisions made for the mother, wife and the two daughters of the testator as well as in respect to payment of debts and carrying out of the charities specified in para 10.(14 ) The changes that are to take effect on the happening of the second event are in regard to the bequests in favour of the adopted son. Under para 4 of the will, the adopted son was to get all the properties of the testator with the exception of those given to the two daughters, the mother and the wife. Under para 11, if the adoption is of a nephews son of the testator, the adopted son gets only the Kokkur properties and the reversionary interest in Nallathgudi village after the death of the testators wife and mother. The village Maruthanthanallur which would go to the adopted son under para 4 is taken away under para 11 and is given to Gnambal. She is also given the remaining interest in the Mayavaram house which was given to the adopted son under para6. Subject to the changes thus made, the provisions of paras 5, 6 and 7 would, in our opinion, still remain operative even if the person adopted was a nephews son of the testator. No change is made in paras, 11 to 16 with regard to the provision in para 5 of the will. In para 13 it is only stated that the village Kothangudi shall be enjoyed by Nagammal as stated in para5. It may be conceded that this statement by itself does not let in the entire provision of para 5, but that is not material for our present purpose. It is enough that para 5 has not been changed or altered in any way. The statement in para 13 may, after all, be loose expression which the testator used only for the purpose of emphasising that the Kothangudi village would be enjoyed by Nagammal even if Gnambals son was not adopted. This is not by way of making any new disposition, but only to affirm what has been already done. The affirmation of a portion of the provision which is perfectly superfluous cannot exclude the rest. It is somewhat difficult to say why the rest of the provisions in para 5, particularly the benefit that was meant to be given to Alamelu, was not repeated in para 13. It may be that the testator did not consider it necessary or it may be that it was due to inadvertence. It is to be noted here that the testator did not mention anywhere in paras 11 to 16 the small house trial was given absolutely to Nagammal under para 7. It was certainly not the intention of the testator that Nagammal would not have that house on the happening of the second contingency. If para 5 itself is held to be applicable and in our opinion it should be so held-there is no question of adding to or altering any of the words made use of by the testator. It is not a question of making a new will for the testator or inventing a bequest for certain persons simply because the will shows that they were the objects of the testators affection. The provision is in the will itself and it is only a question of interpretation as to whether it is applicable in the circumstances which have happened in the present case. The position, therefore, seems to be that the disposition made in paras 5, 6 and 7, which were in favour of the mother, the wife and the two daughters of the testator were meant to take effect immediately on the testators death. They were not contingent gifts in the sense of being made dependent upon the adoption of Gnambals son by the wife of the testator. Only the reversionary interest in the Mayavaram house, which was to vest in the adopted son under the provision of para 6 after the death of the widow and the mother was taken away from the adopted son and given to Gnambal in case the person adopted was not her own son. If the whole of para 5 remains operative the Injigudi house must also be deemed to have been given to Nagammal for her life and in fact the evidence is that she enjoyed it so long as she was alive. No difficulty also arises regarding the payment of Rs. 5,000.00 to Alamelu as has been stated by the High Court in its judgment.(15) Having regard to the meticulous care with which the testator seems to have attempted to provide for the different contingencies that might arise and the anxiety displayed by him in making an effective disposition of all the properties the testator owned, it is not probable that he would omit to make any provision regarding the future devolution of the Kothangudi village if he really thought that such direction had to be repeated in the latter part of the will. The omission of the gift of Rs. 5000.00 to Alamelu also cannot be explained on any other hypothesis. Is it not necessary for the purpose of the present case to invoke any rule of presumption against intestacy, but if the presumption exists at all, it certainly fortifies the conclusion which we have arrived at.
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(14 ) The changes that are to take effect on the happening of the second event are in regard to the bequests in favour of the adopted son. Under para 4 of the will, the adopted son was to get all the properties of the testator with the exception of those given to the two daughters, the mother and the wife. Under para 11, if the adoption is of a nephews son of the testator, the adopted son gets only the Kokkur properties and the reversionary interest in Nallathgudi village after the death of the testators wife and mother. The village Maruthanthanallur which would go to the adopted son under para 4 is taken away under para 11 and is given to Gnambal. She is also given the remaining interest in the Mayavaram house which was given to the adopted son underSubject to the changes thus made, the provisions of paras 5, 6 and 7 would, in our opinion, still remain operative even if the person adopted was a nephews son of the testator. No change is made in paras, 11 to 16 with regard to the provision in para 5 of the will. In para 13 it is only stated that the village Kothangudi shall be enjoyed by Nagammal as stated inIt may be conceded that this statement by itself does not let in the entire provision of para 5, but that is not material for our present purpose. It is enough that para 5 has not been changed or altered in any way. The statement in para 13 may, after all, be loose expression which the testator used only for the purpose of emphasising that the Kothangudi village would be enjoyed by Nagammal even if Gnambals son was not adopted. This is not by way of making any new disposition, but only to affirm what has been already done. The affirmation of a portion of the provision which is perfectly superfluous cannot exclude the rest. It is somewhat difficult to say why the rest of the provisions in para 5, particularly the benefit that was meant to be given to Alamelu, was not repeated in paraIt may be that the testator did not consider it necessary or it may be that it was due to inadvertence. It is to be noted here that the testator did not mention anywhere in paras 11 to 16 the small house trial was given absolutely to Nagammal under para 7. It was certainly not the intention of the testator that Nagammal would not have that house on the happening of the second contingency. If para 5 itself is held to be applicable and in our opinion it should be so held-there is no question of adding to or altering any of the words made use of by the testator. It is not a question of making a new will for the testator or inventing a bequest for certain persons simply because the will shows that they were the objects of the testators affection. The provision is in the will itself and it is only a question of interpretation as to whether it is applicable in the circumstances which have happened in the present case. The position, therefore, seems to be that the disposition made in paras 5, 6 and 7, which were in favour of the mother, the wife and the two daughters of the testator were meant to take effect immediately on the testators death. They were not contingent gifts in the sense of being made dependent upon the adoption of Gnambals son by the wife of the testator. Only the reversionary interest in the Mayavaram house, which was to vest in the adopted son under the provision of para 6 after the death of the widow and the mother was taken away from the adopted son and given to Gnambal in case the person adopted was not her own son. If the whole of para 5 remains operative the Injigudi house must also be deemed to have been given to Nagammal for her life and in fact the evidence is that she enjoyed it so long as she was alive. No difficulty also arises regarding the payment of Rs. 5,000.00 to Alamelu as has been stated by the High Court in its judgment.(15) Having regard to the meticulous care with which the testator seems to have attempted to provide for the different contingencies that might arise and the anxiety displayed by him in making an effective disposition of all the properties the testator owned, it is not probable that he would omit to make any provision regarding the future devolution of the Kothangudi village if he really thought that such direction had to be repeated in the latter part of the will. The omission of the gift of Rs. 5000.00 to Alamelu also cannot be explained on any other hypothesis. Is it not necessary for the purpose of the present case to invoke any rule of presumption against intestacy, but if the presumption exists at all, it certainly fortifies the conclusion which we have arrived at.
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M/S. Mangalam Organics Ltd Vs. Union Of India | to the judgment of this Court in the case of Common Cause v. Union of India and Others, 2003(4) R.C.R.(Civil) 685 : 2003(2) R.C.R.(Rent) 552 : (2003) 8 SCC 250. In that case, though the legislature had made amendments in the Delhi Rent Act, it was left to the Government to notify the date of coming into force the said amendments. Government did not notify any date. A writ was filed seeking issuance of mandamus to the Government to notify the date, which was dismissed by the High Court. While approving the said decision in the aforesaid judgment, the Court referred to various earlier judgments on the subject. It was held that not only Parliament is empowered to give such a power to the executive to decide when the Act is to be brought into force, but also held that mandamus cannot be issued to the Government to notify the amendments. In the process, the Court also made the following observations which are relevant in the present context: "27. From the facts placed before us it cannot be said that Government is not alive to the problem or is desirous of ignoring the will of the Parliament. When the legislature itself had vested the power in the Central Government to notify the date from which the Act would come into force, then, the Central Government is entitled to take into consideration various facts including the facts set out above while considering when the Act should be brought into force or not. No mandamus can be issued to the Central Government to issue the notification contemplated under Section 1(3) of the Act to bring the Act into force, keeping in view the facts brought on record and the consistent view of this Court." 35. Various judgements cited by the appellant would have no application in the instant case as all these judgments pertain to judicial review of administrative action. In such cases power of the Court to issue mandamus certainly exists when it is found that a public authority/executive is not discharging its statutory duty.36. The matter can be looked into from another angle as well. When `power is given to the Central Government to issue a notification to the effect not to recover duty of excise or recover lesser duty than what is normally payable under the Act, for deciding whether to issue such a Notification or not, there may be various considerations in the mind of the Government. Merely because conditions laid in the said provisions are satisfied, would not be a reason to necessarily issue such a notification. It is purely a policy matter. No doubt, the principle against arbitrariness has been extended to subordinate legislation as well (See : Indian Express Newspapers, Bombay v. Union of India, (1985) 1 SCC 641 ). At the same time, the scope of judicial review in such cases is very limited. Where the statute vests a discretionary power in an administrative authority, the Court would not interfere with the exercise of such discretion unless it is made with oblique end or extraneous purposes or upon extraneous considerations, or arbitrarily, without applying its mind to the relevant considerations, or where it is not guided by any norms which are relevant to the object to be achieved.37. In the counter affidavit filed by the respondent, it is categorically mentioned that the policy of the Government is not to issue the notification under Section 11C of the Act when it benefits only a few assesses. It is mentioned that the specific policy of the Government is that when a large section of trade is affected and any relief is proposed to be given, a notification under Section11C of the Act is issued. When the reasons furnished by the Government in not exercising its power to issue notification under Section 11C of the Act are seen in this perspective, namely, such a notification, if issued, is going to benefit only two units, we find them to be valid and justified. While dealing with the challenge to the constitutional validity of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, in the case of Madria Chemicals Ltd. Etc. Etc. v. Union of India and others Etc. Etc., 2004(2) R.C.R.(Civil) 665 : (2004) 4 SCC 311 , this Court noted that the legislature came up with the said legislation as a matter of policy to have speedier legal method to recover the dues. It was held that such a policy decision of the legislature could not be faulted with nor was it a matter to be gone into by the courts to test the legitimacy of such a measure relating to financial policy. As already pointed out above, it is impermissible for this Court to tinker with such policy decision more particularly when it is found that the decision is not irrational and is founded on valid considerations. It has also to be borne in mind that in the instant case the appellant has already paid the duty. Section 11C contemplates those situations where duty is not paid. It does not cover the situation where duty is paid and that is to be refunded.38. Examination of the matter in the aforesaid perspective would provide an answer to most of the arguments of the appellants. It would neither be a case of discrimination nor it can be said that the appellants have any right under Article 14 or Article 19(1)(g) of the Constitution which has been violated by non-issuance of notification under Section 11C of the Act. Once the appellant accepts that in law it was liable to pay the duty, even if some of the units have been able to escape payment of duty for certain reasons, the appellant cannot say that no duty should be recovered from it by invoking Article 14 of the Constitution. It is well established that the equality clause enshrined in Article 14 of the Constitution is a positive concept and cannot be applied in the negative. | 0[ds]We have bestowed our serious consideration that this case deserves to the issues involved.QUESTION NO.When the matter is examined taking into consideration all the facts in totality, we are of the view that there is no clinching evidence to suggest the existence of a general practice not to levy excise duty. Under the impression that it was to be demanded from registered units and five such registered units were, in fact, paying the duty, show cause notices were issued to the remaining two units, namely, the appellant and Gurukripa. That itself negates the argument of existence of general practice of not levying the duty of excise. It is stated at the cost of repetition that merely because some unregistered firms which were initially getting the SSI exemption, but omitted to be covered under the Act on their crossing the SSI limits, would not, in our opinion, establish any such practice.29. In this behalf, it also needs to be highlighted that as far as the Department is concerned, it had taken a categorical stand that even those units which are using Bhatti method for manufacture of Turpentine and Rosin were covered by the Act and that was the reason for issuing of show cause notices to the two units. This view, which the Department had nurtured while issuing the notices, has been vindicated in view of the judgment of this Court in Gurukripa Resins Private Limited. Interestingly, after the said judgment, even the appellant paid the duty of excise. The entire effort now is to recover back the said duty by seeking issuance of a notification under Section 11C of the Act. Such a situation, to our mind, cannot be countenanced.QUESTION NOS. 2 & 3In view of our answer to Question No.1, it may not even be necessary to deal with these two questions. However, since the Department itself proceeded on the basis that there was a general practice, we would like to discuss these issues as well on merits. These can be taken together for discussion.30. Insofar as the argument based on obligation of the Government to issue such a notification is concerned, a clear distinction is to be made between the duty to act in an administrative capacity and the power to exercise statutory function. If a public authority is foisted with any duty to do an act and fails to discharge that function, mandamus can be issued to the said authority to perform its duty. However, that is done while exercising the power of judicial review of an administrative action. It is entirely different from judicial review of a legislative action.Various judgements cited by the appellant would have no application in the instant case as all these judgments pertain to judicial review of administrative action. In such cases power of the Court to issue mandamus certainly exists when it is found that a public authority/executive is not discharging its statutory duty.36. The matter can be looked into from another angle as well. When `power is given to the Central Government to issue a notification to the effect not to recover duty of excise or recover lesser duty than what is normally payable under the Act, for deciding whether to issue such a Notification or not, there may be various considerations in the mind of the Government. Merely because conditions laid in the said provisions are satisfied, would not be a reason to necessarily issue such a notification. It is purely a policy matter. No doubt, the principle against arbitrariness has been extended to subordinate legislation as well (See : Indian Express Newspapers, Bombay v. Union of India, (1985) 1 SCC 641 ). At the same time, the scope of judicial review in such cases is very limited. Where the statute vests a discretionary power in an administrative authority, the Court would not interfere with the exercise of such discretion unless it is made with oblique end or extraneous purposes or upon extraneous considerations, or arbitrarily, without applying its mind to the relevant considerations, or where it is not guided by any norms which are relevant to the object to be achieved.37. In the counter affidavit filed by the respondent, it is categorically mentioned that the policy of the Government is not to issue the notification under Section 11C of the Act when it benefits only a few assesses. It is mentioned that the specific policy of the Government is that when a large section of trade is affected and any relief is proposed to be given, a notification under Section11C of the Act is issued. When the reasons furnished by the Government in not exercising its power to issue notification under Section 11C of the Act are seen in this perspective, namely, such a notification, if issued, is going to benefit only two units, we find them to be valid and justified. While dealing with the challenge to the constitutional validity of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, in the case of Madria Chemicals Ltd. Etc. Etc. v. Union of India and others Etc. Etc., 2004(2) R.C.R.(Civil) 665 : (2004) 4 SCC 311 , this Court noted that the legislature came up with the said legislation as a matter of policy to have speedier legal method to recover the dues. It was held that such a policy decision of the legislature could not be faulted with nor was it a matter to be gone into by the courts to test the legitimacy of such a measure relating to financial policy. As already pointed out above, it is impermissible for this Court to tinker with such policy decision more particularly when it is found that the decision is not irrational and is founded on valid considerations. It has also to be borne in mind that in the instant case the appellant has already paid the duty. Section 11C contemplates those situations where duty is not paid. It does not cover the situation where duty is paid and that is to be refunded.38. Examination of the matter in the aforesaid perspective would provide an answer to most of the arguments of the appellants. It would neither be a case of discrimination nor it can be said that the appellants have any right under Article 14 or Article 19(1)(g) of the Constitution which has been violated by non-issuance of notification under Section 11C of the Act. Once the appellant accepts that in law it was liable to pay the duty, even if some of the units have been able to escape payment of duty for certain reasons, the appellant cannot say that no duty should be recovered from it by invoking Article 14 of the Constitution. It is well established that the equality clause enshrined in Article 14 of the Constitution is a positive concept and cannot be applied in the negative. | 0 | 8,920 | 1,254 | ### 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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to the judgment of this Court in the case of Common Cause v. Union of India and Others, 2003(4) R.C.R.(Civil) 685 : 2003(2) R.C.R.(Rent) 552 : (2003) 8 SCC 250. In that case, though the legislature had made amendments in the Delhi Rent Act, it was left to the Government to notify the date of coming into force the said amendments. Government did not notify any date. A writ was filed seeking issuance of mandamus to the Government to notify the date, which was dismissed by the High Court. While approving the said decision in the aforesaid judgment, the Court referred to various earlier judgments on the subject. It was held that not only Parliament is empowered to give such a power to the executive to decide when the Act is to be brought into force, but also held that mandamus cannot be issued to the Government to notify the amendments. In the process, the Court also made the following observations which are relevant in the present context: "27. From the facts placed before us it cannot be said that Government is not alive to the problem or is desirous of ignoring the will of the Parliament. When the legislature itself had vested the power in the Central Government to notify the date from which the Act would come into force, then, the Central Government is entitled to take into consideration various facts including the facts set out above while considering when the Act should be brought into force or not. No mandamus can be issued to the Central Government to issue the notification contemplated under Section 1(3) of the Act to bring the Act into force, keeping in view the facts brought on record and the consistent view of this Court." 35. Various judgements cited by the appellant would have no application in the instant case as all these judgments pertain to judicial review of administrative action. In such cases power of the Court to issue mandamus certainly exists when it is found that a public authority/executive is not discharging its statutory duty.36. The matter can be looked into from another angle as well. When `power is given to the Central Government to issue a notification to the effect not to recover duty of excise or recover lesser duty than what is normally payable under the Act, for deciding whether to issue such a Notification or not, there may be various considerations in the mind of the Government. Merely because conditions laid in the said provisions are satisfied, would not be a reason to necessarily issue such a notification. It is purely a policy matter. No doubt, the principle against arbitrariness has been extended to subordinate legislation as well (See : Indian Express Newspapers, Bombay v. Union of India, (1985) 1 SCC 641 ). At the same time, the scope of judicial review in such cases is very limited. Where the statute vests a discretionary power in an administrative authority, the Court would not interfere with the exercise of such discretion unless it is made with oblique end or extraneous purposes or upon extraneous considerations, or arbitrarily, without applying its mind to the relevant considerations, or where it is not guided by any norms which are relevant to the object to be achieved.37. In the counter affidavit filed by the respondent, it is categorically mentioned that the policy of the Government is not to issue the notification under Section 11C of the Act when it benefits only a few assesses. It is mentioned that the specific policy of the Government is that when a large section of trade is affected and any relief is proposed to be given, a notification under Section11C of the Act is issued. When the reasons furnished by the Government in not exercising its power to issue notification under Section 11C of the Act are seen in this perspective, namely, such a notification, if issued, is going to benefit only two units, we find them to be valid and justified. While dealing with the challenge to the constitutional validity of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, in the case of Madria Chemicals Ltd. Etc. Etc. v. Union of India and others Etc. Etc., 2004(2) R.C.R.(Civil) 665 : (2004) 4 SCC 311 , this Court noted that the legislature came up with the said legislation as a matter of policy to have speedier legal method to recover the dues. It was held that such a policy decision of the legislature could not be faulted with nor was it a matter to be gone into by the courts to test the legitimacy of such a measure relating to financial policy. As already pointed out above, it is impermissible for this Court to tinker with such policy decision more particularly when it is found that the decision is not irrational and is founded on valid considerations. It has also to be borne in mind that in the instant case the appellant has already paid the duty. Section 11C contemplates those situations where duty is not paid. It does not cover the situation where duty is paid and that is to be refunded.38. Examination of the matter in the aforesaid perspective would provide an answer to most of the arguments of the appellants. It would neither be a case of discrimination nor it can be said that the appellants have any right under Article 14 or Article 19(1)(g) of the Constitution which has been violated by non-issuance of notification under Section 11C of the Act. Once the appellant accepts that in law it was liable to pay the duty, even if some of the units have been able to escape payment of duty for certain reasons, the appellant cannot say that no duty should be recovered from it by invoking Article 14 of the Constitution. It is well established that the equality clause enshrined in Article 14 of the Constitution is a positive concept and cannot be applied in the negative.
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SSI limits, would not, in our opinion, establish any such practice.29. In this behalf, it also needs to be highlighted that as far as the Department is concerned, it had taken a categorical stand that even those units which are using Bhatti method for manufacture of Turpentine and Rosin were covered by the Act and that was the reason for issuing of show cause notices to the two units. This view, which the Department had nurtured while issuing the notices, has been vindicated in view of the judgment of this Court in Gurukripa Resins Private Limited. Interestingly, after the said judgment, even the appellant paid the duty of excise. The entire effort now is to recover back the said duty by seeking issuance of a notification under Section 11C of the Act. Such a situation, to our mind, cannot be countenanced.QUESTION NOS. 2 & 3In view of our answer to Question No.1, it may not even be necessary to deal with these two questions. However, since the Department itself proceeded on the basis that there was a general practice, we would like to discuss these issues as well on merits. These can be taken together for discussion.30. Insofar as the argument based on obligation of the Government to issue such a notification is concerned, a clear distinction is to be made between the duty to act in an administrative capacity and the power to exercise statutory function. If a public authority is foisted with any duty to do an act and fails to discharge that function, mandamus can be issued to the said authority to perform its duty. However, that is done while exercising the power of judicial review of an administrative action. It is entirely different from judicial review of a legislative action.Various judgements cited by the appellant would have no application in the instant case as all these judgments pertain to judicial review of administrative action. In such cases power of the Court to issue mandamus certainly exists when it is found that a public authority/executive is not discharging its statutory duty.36. The matter can be looked into from another angle as well. When `power is given to the Central Government to issue a notification to the effect not to recover duty of excise or recover lesser duty than what is normally payable under the Act, for deciding whether to issue such a Notification or not, there may be various considerations in the mind of the Government. Merely because conditions laid in the said provisions are satisfied, would not be a reason to necessarily issue such a notification. It is purely a policy matter. No doubt, the principle against arbitrariness has been extended to subordinate legislation as well (See : Indian Express Newspapers, Bombay v. Union of India, (1985) 1 SCC 641 ). At the same time, the scope of judicial review in such cases is very limited. Where the statute vests a discretionary power in an administrative authority, the Court would not interfere with the exercise of such discretion unless it is made with oblique end or extraneous purposes or upon extraneous considerations, or arbitrarily, without applying its mind to the relevant considerations, or where it is not guided by any norms which are relevant to the object to be achieved.37. In the counter affidavit filed by the respondent, it is categorically mentioned that the policy of the Government is not to issue the notification under Section 11C of the Act when it benefits only a few assesses. It is mentioned that the specific policy of the Government is that when a large section of trade is affected and any relief is proposed to be given, a notification under Section11C of the Act is issued. When the reasons furnished by the Government in not exercising its power to issue notification under Section 11C of the Act are seen in this perspective, namely, such a notification, if issued, is going to benefit only two units, we find them to be valid and justified. While dealing with the challenge to the constitutional validity of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, in the case of Madria Chemicals Ltd. Etc. Etc. v. Union of India and others Etc. Etc., 2004(2) R.C.R.(Civil) 665 : (2004) 4 SCC 311 , this Court noted that the legislature came up with the said legislation as a matter of policy to have speedier legal method to recover the dues. It was held that such a policy decision of the legislature could not be faulted with nor was it a matter to be gone into by the courts to test the legitimacy of such a measure relating to financial policy. As already pointed out above, it is impermissible for this Court to tinker with such policy decision more particularly when it is found that the decision is not irrational and is founded on valid considerations. It has also to be borne in mind that in the instant case the appellant has already paid the duty. Section 11C contemplates those situations where duty is not paid. It does not cover the situation where duty is paid and that is to be refunded.38. Examination of the matter in the aforesaid perspective would provide an answer to most of the arguments of the appellants. It would neither be a case of discrimination nor it can be said that the appellants have any right under Article 14 or Article 19(1)(g) of the Constitution which has been violated by non-issuance of notification under Section 11C of the Act. Once the appellant accepts that in law it was liable to pay the duty, even if some of the units have been able to escape payment of duty for certain reasons, the appellant cannot say that no duty should be recovered from it by invoking Article 14 of the Constitution. It is well established that the equality clause enshrined in Article 14 of the Constitution is a positive concept and cannot be applied in the negative.
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RAJASTHAN SMALL INDUSTRIES CORPORTION LIMITED Vs. M/S GANESH CONTAINERS MOVERS SYNDICATE | another according to the rules that were applicable to the appointment of the original arbitrator who was being replaced. The term “rules” in Section 15(2) obviously referred to the provision for appointment contained in the arbitration agreement or any rules of any institution under which the disputes were referred to arbitration. There was no failure on the part of the party concerned as per the arbitration agreement, to fulfil his obligation in terms of Section 11 of the Act so as to attract the jurisdiction of the Chief Justice under Section 11(6) of the Act for appointing a substitute arbitrator. Obviously, Section 11(6) of the Act has application only when a party or the person concerned had failed to act in terms of the arbitration agreement. When Section 15(2) says that a substitute arbitrator can be appointed according to the rules that were applicable for the appointment of the arbitrator originally, it is not confined to an appointment under any statutory rule or rule framed under the Act or under the scheme. It only means that the appointment of the substitute arbitrator must be done according to the original agreement or provision applicable to the appointment of the arbitrator at the initial stage…….”[underlining added] As held in Yashwith Constructions, Section 11(6) of the Act would come into play only when there was failure on the part of the party concerned to appoint an arbitrator in terms of the arbitration agreement. In the case in hand, the High Court, in our view, was not right in appointing an independent arbitrator without keeping in view the terms of the agreement between the parties and therefore, the impugned order appointing an independent arbitrator/retired District Judge is not sustainable. 35. Remedy to the Respondent-Contractor:- The award passed by the arbitrator dated 21.01.2016, whether sustainable, is the next question falling for consideration. As discussed earlier, after 17.08.2011 the Arbitral Tribunal could not make progress and as per the proceeding of the Arbitral Tribunal dated 17.08.2011, the arbitrator observed that the “…..missing papers are incomplete…..the chronological events need to be ascertained and reconstitution will be required….” . As pointed out earlier, the respondent filed application under Sections 11 and 15 of the Act of 1996 before the High Court on 13.05.2015. As per the proceedings of the Arbitral Tribunal dated 18.12.2015, the arbitration application before the High Court was brought to the notice of the tribunal and the same was recorded. On 05.01.2016, the respondent prayed for keeping the arbitration proceedings in abeyance and the matter was adjourned for 13.01.2016. The Arbitral Tribunal passed a detailed order on 13.01.2016 stating that the matter is pending for quite some time and on the basis of the available facts and materials, the matter will be finalized and adjourned the matter for 21.01.2016. On the basis of available materials, the Arbitral Tribunal passed the final award on 21.01.2016 awarding a sum of Rs.1,38,000/-, Rs.83,000/- and Rs.1,97,110/- in respect of claims at Serial Nos.3, 4 and 9 respectively to the claimant and the respondent’s claim in respect of other claims was rejected. So far as the counter claim of the appellant-Corporation in respect of Serial No.17, the arbitrator awarded a sum of Rs.58,39,018/-. 36. Since the High Court was in seisin of the matter, the Arbitral Tribunal could have given further opportunity to the respondent to put forth his case. The proceedings of the Arbitral Tribunal was pending for quite some time from 2009 till 2015 and after the respondent approached the High Court in May, 2015, the arbitrator appears to have hurriedly passed the award. It is pertinent to note that the respondent was repeatedly praying for adjournment on 05.01.2016, 13.01.2016 and was not present on the date of passing of the final award dated 21.01.2016. As pointed out earlier, it was noted in the proceedings dated 17.08.2011 that the chronological events need to be ascertained and reconstruction will be required. It is not known whether the same was ascertained or not and whether reconstruction was done before passing the final award on 21.01.2016. The respondent has made number of claims under various heads. The respondent has to be given an opportunity to substantiate its claim under various heads. In order to do complete justice between the parties and in exercise of power under Article 142 of the Constitution of India, the award dated 21.01.2016 is to be set aside.37. In exercise of power under Article 142 of the Constitution of India, it is open to the court to mould the relief by safeguarding the interest of parties. The paramount consideration in such cases should be to ensure that there is no injustice caused. In Raj Kumar and others v. Union of India and another (2006) 1 SCC 737 , this Court held as under:- “19. …….in exercise of our powers under Article 142 of the Constitution in order to do complete justice to a section of the personnel who would otherwise be placed in an inequitable situation for which the authorities are also partly to blame. It is open to this Court to mould the relief by safeguarding the interest of the parties even while declaring the law. The paramount consideration in such cases should be to ensure that there is no injustice caused…….” 38. The phrase “complete justice” engrafted in Article 142(1) is the word of width couched with elasticity to meet myriad situations created by human ingenuity or cause or result of operation of Statute law or law declared under Articles 32, 136 and 141 of the Constitution. (Vide Ashok Kumar Gupta and another v. State of U.P. and others (1997) 5 SCC 201 ) In the case in hand, to relegate the respondent to challenge the award under Section 34 of the Act, it would further prolong the litigation between the parties. Considering the facts of the case and in order to do complete justice between the parties, in exercise of power under Article 142 of the Constitution, the award dated 21.01.2016 is set aside. | 1[ds]20. It is in this backdrop, the respondent has filed the arbitration petition before the High Court under Section 11 and Section 15 of the Arbitration and Conciliation Act, 1996 on 13.05.2015 seeking appointment of an independent arbitrator. As noted earlier, as per Clause 4.20.1 of Schedule-4 (General Conditions), the parties have agreed that all disputes and differences arising out of or in any way concerning the contract, shall be referred to the Managing Director himself or his nominees for the sole arbitration and that there will be no objection to any such appointment on the ground that the person so appointed is an employee of the Corporation and that he has dealt with the matter to which the contract relates. When the parties have consciously agreed that the disputes or differences shall be referred to the Managing Director himself or his nominee for sole arbitration and having participated in the arbitral proceedings before arbitrator for quite some time, the respondent cannot turn round and seek for appointment of an independent arbitrator.21. The respondent having participated in the proceedings before the arbitral tribunal for quite some time and also having expressed faith in the sole arbitrator, is not justified in challenging the appointment of the Managing Director of the appellant-Corporation as the sole arbitrator.The respondent has not placed any material to show that it has reason to believe that the arbitrator had not acted independently or impartially. The respondent has not brought on record any material to entertain an apprehension that the Managing Director of the appellant-Corporation is not likely to act independently or impartially. On the other hand, as noted earlier, as per the proceeding of the arbitral tribunal dated 21.10.2010, the respondent had expressed its full faith in the sole arbitrator and had also given a letter dated 21.10.2010 to that effect. The fact that the sole arbitrator is the Managing Director of the appellant-Corporation is not a ground to raise a presumption of bias or lack of independence on his part. The arbitration Clause 4.20.1 of Schedule-4 (General Conditions) stipulates a high official i.e. - Managing Director of the Corporation not connected with the contract or the work executed by the respondent. Having participated in the entire arbitration proceedings and acquiesced in the proceedings, the respondent is estopped from challenging the competence of the arbitrator. The respondent was not justified in filing the arbitration petition seeking appointment of an independentby virtue of Section 12 of the Amendment Act, the Managing Director has become ineligible toAfter the amendment to the Arbitration and Conciliation Act, 2015, Section 12(5) prohibits the employee of one of the parties from being an arbitrator. In the present case, the agreement between the parties was entered into on 28.01.2000 and the arbitration proceedings commenced way back in 2009 and thus, the respondent cannot invoke Section 12(5) of the Arbitration and Conciliation (Amendment) Act, 2015. As per Section 26 of the Act, the provisions of the amended Act 2015 shall not apply to the arbitral proceedings commenced in accordance with the provisions of Section 21 of the principal Act, before the commencement of this Act unless the parties otherwise agree.24. In Board of Control for Cricket in India v. Kochi Cricket Private Limited and others, (2018) 6 SCC 287 , this Court held that the provisions of Amendment Act, 2015 (with effect from 23.10.2015) cannot have retrospective operation in the arbitral proceedings already commenced unless the parties otherwise agree. In the present case, there is nothing to suggest that the parties have agreed that the provisions of the new Act shall apply in relation to the arbitral proceedings.25. Contending that the sole arbitrator/Chairman-cum-Managing Director, by virtue of 2015 amendment, has become ineligible to act as the arbitrator, the learned counsel for the respondent placed reliance upon TRF Limited v. Energo Engineering Projects Limited (2017) 8 SCC 377. In the said case, though the agreement/purchase order was dated 10.05.2014 (prior to the amendment), notice invoking arbitration was issued on 28.12.2015 (after the Amendment Act 2015) and the letter of the Managing Director nominating the arbitrator is dated 27.01.2016. In such factual matrix of the case, this Court has held that the named arbitrator-Managing Director of the respondent therein had become ineligible by operation of law and therefore, he cannot nominate another person as an arbitrator.The facts of the said case are entirely different from the case in hand. In the said case, when notice invoking arbitration was issued on 28.12.2015, after the Amendment Act, 2015 came into force with effect from 23.10.2015, by virtue of which the person named in the agreement became ineligible to act as the arbitrator. In the case in hand, the arbitration proceedings started way back in 2009 long before 2015 Amendment Act came into force and therefore, 2015 Amendment Act is not applicable to the case in hand. The statutory provisions that would govern the matter are those which were then in force before the Amendment Act.27. To fortify our view, we can usefully refer to the decision of this Court in Aravali Power Company Private Limited v. Era Infra Engineering Limited (2017) 15 SCC 32. In this case, the invocation of arbitration was on 29.07.2015 and the arbitrator was appointed on 19.08.2015 and the parties appeared before the arbitrator on 07.10.2015 well before 23.10.2015 i.e. date on which the Amendment Act was deemed to have come into force. It was held that the statutory provisions that would therefore govern the controversy are those that were in force before the Amendment Act came into effect. This Court has therefore directed that the arbitration, in pursuance of the appointment of the arbitrator on 19.08.2015, shall proceed in accordance withthe High Court was right in terminating the mandate of the arbitrator appointed as per theThe main question falling for consideration is whetherthe High Court was right in terminating the mandate of the arbitrator appointed as per theagreement and appointing a substitute arbitrator in the application filed under Section 11(6) and Section 15 of the Arbitration Act. As pointed out earlier, the proceedings before the Arbitral Tribunal proceeded till 17.08.2011 and thereafter, no progress was made. The respondent issued legal notice on 07.02.2013 calling upon the appellant to pay Rs.3.90,81,602/- alleging that the said amount was settled during the course of proceedings before the Arbitral Tribunal. Reiterating the demand, the respondent has again sent the legal notice on 07.03.2013. However, no award came to be passed. The respondent filed application under Sections 11 and 15 of the Act of 1996 on 13.05.2015 seeking appointment of an independent arbitrator for adjudication of the disputes and differences between the appellant and the respondent.29.In support of his contention, the learned counsel for the respondent relied upon the decision in Union of India and others v. Uttar Pradesh State Bridge Corporation Limited (2015) 2 SCC 52. Learned counsel for the respondent contended that the arbitrator failed to conclude the proceedings even after four years and the High Court rightly appointed the substitute arbitrator departing from the arbitration clause in the agreement between the parties.In the said case, since the Arbitral Tribunal did not pass award in spite of expiry of four years, the respondent thereon filed Request Case No.10/2010 and the High Court passed order dated 09.03.2011 giving the last chance to the Arbitral Tribunal to complete the arbitral proceedings within a period of three months. In para (6) of the judgment, this Court pointed out that the High Court took note of the various dates and hearings that are fixed by the Tribunal between 25.03.2011 and 25.06.2011 and came to the conclusion that the delay caused in the arbitral proceedings was intentional. After referring to Union of India v. Singh Builders Syndicate (2009) 4 SCC 523 and other judgments, this Court observed that the delays and frequent changes in the Arbitral Tribunal defeat the process of arbitration and therefore, the appointment of the arbitrator by the court of its own choice departing from the arbitration clause has become an acceptable proposition of law which can be termed as a legal principle which has come to be established by a series of judgments of this Court.Having regard to the factual matrix of the present case, in our considered view, the ratio of the said decision cannot be applied to the case in hand. Per contra, in the present case, the proceedings of the arbitral tribunal continued till 17.08.2011. From the proceeding of the arbitral tribunal dated 17.08.2011, it is seen that theobserved that the file regarding arbitration appears tampered/missing papers are incomplete and therefore, the chronological events need to be ascertained and reconstitution will beSection 15 deals with termination of the mandate and substitution of an arbitrator. Sub-section (1) of Section 15 states that in addition to the circumstances referred to in Sections 13 and 14 of the Act, the mandate of an arbitrator shall terminate where he withdraws from office for any reason or by pursuant to the agreement of the parties. In terms of sub-section (2), after termination ofmandate, the appointment of the substitute arbitrator shall be in accordance with the rules applicable to the appointment of an arbitrator who is beingheld in Yashwith Constructions, Section 11(6) of the Act would come into play only when there was failure on the part of the party concerned to appoint an arbitrator in terms of the arbitration agreement. In the case in hand, the High Court, in our view, was not right in appointing an independent arbitrator without keeping in view the terms of the agreement between the parties and therefore, the impugned order appointing an independent arbitrator/retired District Judge is not sustainable.Since the High Court was in seisin of the matter, the Arbitral Tribunal could have given further opportunity to the respondent to put forth his case. The proceedings of the Arbitral Tribunal was pending for quite some time from 2009 till 2015 and after the respondent approached the High Court in May, 2015, the arbitrator appears to have hurriedly passed the award. It is pertinent to note that the respondent was repeatedly praying for adjournment on 05.01.2016, 13.01.2016 and was not present on the date of passing of the final award dated 21.01.2016. As pointed out earlier, it was noted in the proceedings dated 17.08.2011 that the chronological events need to be ascertained and reconstruction will be required. It is not known whether the same was ascertained or not and whether reconstruction was done before passing the final award on 21.01.2016. The respondent has made number of claims under various heads. The respondent has to be given an opportunity to substantiate its claim under various heads. In order to do complete justice between the parties and in exercise of power under Article 142 of the Constitution of India, the award dated 21.01.2016 is to be set aside.37. In exercise of power under Article 142 of the Constitution of India, it is open to the court to mould the relief by safeguarding the interest of parties. The paramount consideration in such cases should be to ensure that there is no injustice caused.engrafted in Article 142(1) is the word of width couched with elasticity to meet myriad situations created by human ingenuity or cause or result of operation of Statute law or law declared under Articles 32, 136 and 141 of the Constitution. (Vide Ashok Kumar Gupta and another v. State of U.P. and others (1997) 5 SCC 201 ) In the case in hand, to relegate the respondent to challenge the award under Section 34 of the Act, it would further prolong the litigation between the parties. Considering the facts of the case and in order to do complete justice between the parties, in exercise of power under Article 142 of the Constitution, the award dated 21.01.2016 is set aside. | 1 | 7,655 | 2,145 | ### Instruction:
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another according to the rules that were applicable to the appointment of the original arbitrator who was being replaced. The term “rules” in Section 15(2) obviously referred to the provision for appointment contained in the arbitration agreement or any rules of any institution under which the disputes were referred to arbitration. There was no failure on the part of the party concerned as per the arbitration agreement, to fulfil his obligation in terms of Section 11 of the Act so as to attract the jurisdiction of the Chief Justice under Section 11(6) of the Act for appointing a substitute arbitrator. Obviously, Section 11(6) of the Act has application only when a party or the person concerned had failed to act in terms of the arbitration agreement. When Section 15(2) says that a substitute arbitrator can be appointed according to the rules that were applicable for the appointment of the arbitrator originally, it is not confined to an appointment under any statutory rule or rule framed under the Act or under the scheme. It only means that the appointment of the substitute arbitrator must be done according to the original agreement or provision applicable to the appointment of the arbitrator at the initial stage…….”[underlining added] As held in Yashwith Constructions, Section 11(6) of the Act would come into play only when there was failure on the part of the party concerned to appoint an arbitrator in terms of the arbitration agreement. In the case in hand, the High Court, in our view, was not right in appointing an independent arbitrator without keeping in view the terms of the agreement between the parties and therefore, the impugned order appointing an independent arbitrator/retired District Judge is not sustainable. 35. Remedy to the Respondent-Contractor:- The award passed by the arbitrator dated 21.01.2016, whether sustainable, is the next question falling for consideration. As discussed earlier, after 17.08.2011 the Arbitral Tribunal could not make progress and as per the proceeding of the Arbitral Tribunal dated 17.08.2011, the arbitrator observed that the “…..missing papers are incomplete…..the chronological events need to be ascertained and reconstitution will be required….” . As pointed out earlier, the respondent filed application under Sections 11 and 15 of the Act of 1996 before the High Court on 13.05.2015. As per the proceedings of the Arbitral Tribunal dated 18.12.2015, the arbitration application before the High Court was brought to the notice of the tribunal and the same was recorded. On 05.01.2016, the respondent prayed for keeping the arbitration proceedings in abeyance and the matter was adjourned for 13.01.2016. The Arbitral Tribunal passed a detailed order on 13.01.2016 stating that the matter is pending for quite some time and on the basis of the available facts and materials, the matter will be finalized and adjourned the matter for 21.01.2016. On the basis of available materials, the Arbitral Tribunal passed the final award on 21.01.2016 awarding a sum of Rs.1,38,000/-, Rs.83,000/- and Rs.1,97,110/- in respect of claims at Serial Nos.3, 4 and 9 respectively to the claimant and the respondent’s claim in respect of other claims was rejected. So far as the counter claim of the appellant-Corporation in respect of Serial No.17, the arbitrator awarded a sum of Rs.58,39,018/-. 36. Since the High Court was in seisin of the matter, the Arbitral Tribunal could have given further opportunity to the respondent to put forth his case. The proceedings of the Arbitral Tribunal was pending for quite some time from 2009 till 2015 and after the respondent approached the High Court in May, 2015, the arbitrator appears to have hurriedly passed the award. It is pertinent to note that the respondent was repeatedly praying for adjournment on 05.01.2016, 13.01.2016 and was not present on the date of passing of the final award dated 21.01.2016. As pointed out earlier, it was noted in the proceedings dated 17.08.2011 that the chronological events need to be ascertained and reconstruction will be required. It is not known whether the same was ascertained or not and whether reconstruction was done before passing the final award on 21.01.2016. The respondent has made number of claims under various heads. The respondent has to be given an opportunity to substantiate its claim under various heads. In order to do complete justice between the parties and in exercise of power under Article 142 of the Constitution of India, the award dated 21.01.2016 is to be set aside.37. In exercise of power under Article 142 of the Constitution of India, it is open to the court to mould the relief by safeguarding the interest of parties. The paramount consideration in such cases should be to ensure that there is no injustice caused. In Raj Kumar and others v. Union of India and another (2006) 1 SCC 737 , this Court held as under:- “19. …….in exercise of our powers under Article 142 of the Constitution in order to do complete justice to a section of the personnel who would otherwise be placed in an inequitable situation for which the authorities are also partly to blame. It is open to this Court to mould the relief by safeguarding the interest of the parties even while declaring the law. The paramount consideration in such cases should be to ensure that there is no injustice caused…….” 38. The phrase “complete justice” engrafted in Article 142(1) is the word of width couched with elasticity to meet myriad situations created by human ingenuity or cause or result of operation of Statute law or law declared under Articles 32, 136 and 141 of the Constitution. (Vide Ashok Kumar Gupta and another v. State of U.P. and others (1997) 5 SCC 201 ) In the case in hand, to relegate the respondent to challenge the award under Section 34 of the Act, it would further prolong the litigation between the parties. Considering the facts of the case and in order to do complete justice between the parties, in exercise of power under Article 142 of the Constitution, the award dated 21.01.2016 is set aside.
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falling for consideration is whetherthe High Court was right in terminating the mandate of the arbitrator appointed as per theagreement and appointing a substitute arbitrator in the application filed under Section 11(6) and Section 15 of the Arbitration Act. As pointed out earlier, the proceedings before the Arbitral Tribunal proceeded till 17.08.2011 and thereafter, no progress was made. The respondent issued legal notice on 07.02.2013 calling upon the appellant to pay Rs.3.90,81,602/- alleging that the said amount was settled during the course of proceedings before the Arbitral Tribunal. Reiterating the demand, the respondent has again sent the legal notice on 07.03.2013. However, no award came to be passed. The respondent filed application under Sections 11 and 15 of the Act of 1996 on 13.05.2015 seeking appointment of an independent arbitrator for adjudication of the disputes and differences between the appellant and the respondent.29.In support of his contention, the learned counsel for the respondent relied upon the decision in Union of India and others v. Uttar Pradesh State Bridge Corporation Limited (2015) 2 SCC 52. Learned counsel for the respondent contended that the arbitrator failed to conclude the proceedings even after four years and the High Court rightly appointed the substitute arbitrator departing from the arbitration clause in the agreement between the parties.In the said case, since the Arbitral Tribunal did not pass award in spite of expiry of four years, the respondent thereon filed Request Case No.10/2010 and the High Court passed order dated 09.03.2011 giving the last chance to the Arbitral Tribunal to complete the arbitral proceedings within a period of three months. In para (6) of the judgment, this Court pointed out that the High Court took note of the various dates and hearings that are fixed by the Tribunal between 25.03.2011 and 25.06.2011 and came to the conclusion that the delay caused in the arbitral proceedings was intentional. After referring to Union of India v. Singh Builders Syndicate (2009) 4 SCC 523 and other judgments, this Court observed that the delays and frequent changes in the Arbitral Tribunal defeat the process of arbitration and therefore, the appointment of the arbitrator by the court of its own choice departing from the arbitration clause has become an acceptable proposition of law which can be termed as a legal principle which has come to be established by a series of judgments of this Court.Having regard to the factual matrix of the present case, in our considered view, the ratio of the said decision cannot be applied to the case in hand. Per contra, in the present case, the proceedings of the arbitral tribunal continued till 17.08.2011. From the proceeding of the arbitral tribunal dated 17.08.2011, it is seen that theobserved that the file regarding arbitration appears tampered/missing papers are incomplete and therefore, the chronological events need to be ascertained and reconstitution will beSection 15 deals with termination of the mandate and substitution of an arbitrator. Sub-section (1) of Section 15 states that in addition to the circumstances referred to in Sections 13 and 14 of the Act, the mandate of an arbitrator shall terminate where he withdraws from office for any reason or by pursuant to the agreement of the parties. In terms of sub-section (2), after termination ofmandate, the appointment of the substitute arbitrator shall be in accordance with the rules applicable to the appointment of an arbitrator who is beingheld in Yashwith Constructions, Section 11(6) of the Act would come into play only when there was failure on the part of the party concerned to appoint an arbitrator in terms of the arbitration agreement. In the case in hand, the High Court, in our view, was not right in appointing an independent arbitrator without keeping in view the terms of the agreement between the parties and therefore, the impugned order appointing an independent arbitrator/retired District Judge is not sustainable.Since the High Court was in seisin of the matter, the Arbitral Tribunal could have given further opportunity to the respondent to put forth his case. The proceedings of the Arbitral Tribunal was pending for quite some time from 2009 till 2015 and after the respondent approached the High Court in May, 2015, the arbitrator appears to have hurriedly passed the award. It is pertinent to note that the respondent was repeatedly praying for adjournment on 05.01.2016, 13.01.2016 and was not present on the date of passing of the final award dated 21.01.2016. As pointed out earlier, it was noted in the proceedings dated 17.08.2011 that the chronological events need to be ascertained and reconstruction will be required. It is not known whether the same was ascertained or not and whether reconstruction was done before passing the final award on 21.01.2016. The respondent has made number of claims under various heads. The respondent has to be given an opportunity to substantiate its claim under various heads. In order to do complete justice between the parties and in exercise of power under Article 142 of the Constitution of India, the award dated 21.01.2016 is to be set aside.37. In exercise of power under Article 142 of the Constitution of India, it is open to the court to mould the relief by safeguarding the interest of parties. The paramount consideration in such cases should be to ensure that there is no injustice caused.engrafted in Article 142(1) is the word of width couched with elasticity to meet myriad situations created by human ingenuity or cause or result of operation of Statute law or law declared under Articles 32, 136 and 141 of the Constitution. (Vide Ashok Kumar Gupta and another v. State of U.P. and others (1997) 5 SCC 201 ) In the case in hand, to relegate the respondent to challenge the award under Section 34 of the Act, it would further prolong the litigation between the parties. Considering the facts of the case and in order to do complete justice between the parties, in exercise of power under Article 142 of the Constitution, the award dated 21.01.2016 is set aside.
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Dulcina Fernandes Vs. Joaquim Xavier Cruz | of a claim petition under the Motor Vehicles Act, 1988 a three-judge-bench of this Court has culled out certain propositions of which propositions (ii), (v) and (vi) would be relevant to the facts of the present case and, therefore, may be extracted hereinbelow: “(ii) The rules of the pleadings do not strictly apply as the claimant is required to make an application in a form prescribed under the Act. In fact, there is no pleading where the proceedings are suo motu initiated by the Tribunal.(v) Though the Tribunal adjudicates on a claim and determines the compensation, it does not do so as in an adversarial litigation. (vi) The Tribunal is required to follow such summary procedure as it thinks fit. It may choose one or more persons possessing special knowledge of and matters relevant to inquiry, to assist it in holding the enquiry.” The following further observation available in paragraph 10 of the report would require specific note: “We have referred to the aforesaid provisions to show that an award by the Tribunal cannot be seen as an adversarial adjudication between the litigating parties to a dispute, but a statutory determination of compensation on the occurrence of an accident, after due enquiry, in accordance with the statute." 8. The cases of the parties before us will have to be examined from the perspective of the principles and propositions laid down in Bimla Devi case (supra) and Shila Datta (supra). While it is correct that the pillion rider could have best unfolded the details of the accident what cannot be lost sight of is the fact that while the accident occurred on 29.06.1997 the evidence before the Tribunal was recorded after seven years i.e. in the year 2004. Keeping in view the nature of the jurisdiction that is exercised by a Claims Tribunal under the Act we do not think it was correct on the part of the learned Tribunal to hold against the claimants for their failure or inability to examine the pillion rider Rosario Antao as a witness in the case. Taking into account the hapless condition in which the claimants must have been placed after the death of their sole breadwinner and the sufficiently long period of time that has elapsed in the meantime, the learned Tribunal should not have treated the non-examination of the pillion rider as a fatal and fundamental law to the claim made before it by the appellant. As this Court while hearing an appeal instituted upon grant of special leave under Article 136 of the Constitution would not normally re-appreciate the evidence led before Trial Court, we refrain from doing so in the present case though we may observe that the learned Tribunal was not entirely correct in rejecting the evidence of the CW-3 and 5 on the grounds assigned. Similar is the position with regard to the findings of the learned Tribunal in accepting the evidence tendered by the first respondent. However, there are certain other features of the case which are more fundamental and, therefore, have to be specifically noticed. CW-2, who was at the relevant time working as the Head Constable of Main Eurtorim, Police Station, had deposed that a criminal case was registered against the first respondent in connection with the accident and that after investigation he was chargesheeted and sent up for trial. Though it is submitted at the Bar that the first respondent was acquitted in the said case what cannot be overlooked is the fact that upon investigation of the case registered against the first respondent, prime facie, materials showing negligence were found to put him on trial. From the evidence of CW-2 it also transpired that the deceased was not medically examined to ascertain whether he had consumed alcohol and was, therefore, driving the scooter under the influence of liquor. In fact, according to CW-2, he had reached the spot within 15 minutes of the incident. In his cross-examination CW-2 had specifically denied that the scooter driven by the deceased had dashed the pick-up van which was stationary i.e. parked on the road. The statements made by CW-2 in the course of his deposition has considerable significance to the issues arising in the case, namely, whether the deceased was driving the scooter under the influence of alcohol and whether there was any negligence on his part leading to the accident. The said aspects of the evidence of CW-2 do not appear to have been taken note of or to have received any consideration of the learned Tribunal. At the same time it is possible to take the view that the evidence of CW-2, properly read and considered, can lead to a conclusion contrary to what has been arrived at by the learned Tribunal, namely, that the accident had occurred on account of the negligence of the deceased. The High Court having failed to notice the above lacunae in the award of the learned Tribunal and correct the same, we are satisfied that the present is a fit case for our interference. We accordingly set aside the findings of the learned Tribunal as affirmed by the High Court in respect of issues 1 and 4 and hold that the accident had occurred due to the rash and negligent driving of the pick-up van by the first respondent.9. It has already been noticed that on basis of the discussions under issue No.3, the learned Tribunal has quantified the entitlement of the claimants to compensation at Rs.6,66,041.78. The said relief was withheld in view of the findings on issues 1 and 4 which have been now reversed by us. Consequently, we hold the claimants-appellants to be entitled to compensation of Rs.6,66,041.78 as quantified by the learned Tribunal in its order dated 20.07.2004. In so far as award of interest is concerned, in the facts of the present case we direct that the amount awarded shall carry interest at the rate of 6% per annum with effect from the date of the award of the learned Tribunal i.e. 20.07.2004. | 1[ds]The said aspects of the evidence ofdo not appear to have been taken note of or to have received any consideration of the learned Tribunal. At the same time it is possible to take the view that the evidence ofproperly read and considered, can lead to a conclusion contrary to what has been arrived at by the learned Tribunal, namely, that the accident had occurred on account of the negligence of the deceased. The High Court having failed to notice the above lacunae in the award of the learned Tribunal and correct the same, we are satisfied that the present is a fit case for our interference. We accordingly set aside the findings of the learned Tribunal as affirmed by the High Court in respect of issues 1 and 4 and hold that the accident had occurred due to the rash and negligent driving of thevan by the first respondent.9. It has already been noticed that on basis of the discussions under issue No.3, the learned Tribunal has quantified the entitlement of the claimants to compensation at Rs.6,66,041.78. The said relief was withheld in view of the findings on issues 1 and 4 which have been now reversed by us. Consequently, we hold theto be entitled to compensation of Rs.6,66,041.78 as quantified by the learned Tribunal in its order dated 20.07.2004. In so far as award of interest is concerned, in the facts of the present case we direct that the amount awarded shall carry interest at the rate of 6% per annum with effect from the date of the award of the learned Tribunal i.e. 20.07.2004. | 1 | 2,142 | 288 | ### Instruction:
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of a claim petition under the Motor Vehicles Act, 1988 a three-judge-bench of this Court has culled out certain propositions of which propositions (ii), (v) and (vi) would be relevant to the facts of the present case and, therefore, may be extracted hereinbelow: “(ii) The rules of the pleadings do not strictly apply as the claimant is required to make an application in a form prescribed under the Act. In fact, there is no pleading where the proceedings are suo motu initiated by the Tribunal.(v) Though the Tribunal adjudicates on a claim and determines the compensation, it does not do so as in an adversarial litigation. (vi) The Tribunal is required to follow such summary procedure as it thinks fit. It may choose one or more persons possessing special knowledge of and matters relevant to inquiry, to assist it in holding the enquiry.” The following further observation available in paragraph 10 of the report would require specific note: “We have referred to the aforesaid provisions to show that an award by the Tribunal cannot be seen as an adversarial adjudication between the litigating parties to a dispute, but a statutory determination of compensation on the occurrence of an accident, after due enquiry, in accordance with the statute." 8. The cases of the parties before us will have to be examined from the perspective of the principles and propositions laid down in Bimla Devi case (supra) and Shila Datta (supra). While it is correct that the pillion rider could have best unfolded the details of the accident what cannot be lost sight of is the fact that while the accident occurred on 29.06.1997 the evidence before the Tribunal was recorded after seven years i.e. in the year 2004. Keeping in view the nature of the jurisdiction that is exercised by a Claims Tribunal under the Act we do not think it was correct on the part of the learned Tribunal to hold against the claimants for their failure or inability to examine the pillion rider Rosario Antao as a witness in the case. Taking into account the hapless condition in which the claimants must have been placed after the death of their sole breadwinner and the sufficiently long period of time that has elapsed in the meantime, the learned Tribunal should not have treated the non-examination of the pillion rider as a fatal and fundamental law to the claim made before it by the appellant. As this Court while hearing an appeal instituted upon grant of special leave under Article 136 of the Constitution would not normally re-appreciate the evidence led before Trial Court, we refrain from doing so in the present case though we may observe that the learned Tribunal was not entirely correct in rejecting the evidence of the CW-3 and 5 on the grounds assigned. Similar is the position with regard to the findings of the learned Tribunal in accepting the evidence tendered by the first respondent. However, there are certain other features of the case which are more fundamental and, therefore, have to be specifically noticed. CW-2, who was at the relevant time working as the Head Constable of Main Eurtorim, Police Station, had deposed that a criminal case was registered against the first respondent in connection with the accident and that after investigation he was chargesheeted and sent up for trial. Though it is submitted at the Bar that the first respondent was acquitted in the said case what cannot be overlooked is the fact that upon investigation of the case registered against the first respondent, prime facie, materials showing negligence were found to put him on trial. From the evidence of CW-2 it also transpired that the deceased was not medically examined to ascertain whether he had consumed alcohol and was, therefore, driving the scooter under the influence of liquor. In fact, according to CW-2, he had reached the spot within 15 minutes of the incident. In his cross-examination CW-2 had specifically denied that the scooter driven by the deceased had dashed the pick-up van which was stationary i.e. parked on the road. The statements made by CW-2 in the course of his deposition has considerable significance to the issues arising in the case, namely, whether the deceased was driving the scooter under the influence of alcohol and whether there was any negligence on his part leading to the accident. The said aspects of the evidence of CW-2 do not appear to have been taken note of or to have received any consideration of the learned Tribunal. At the same time it is possible to take the view that the evidence of CW-2, properly read and considered, can lead to a conclusion contrary to what has been arrived at by the learned Tribunal, namely, that the accident had occurred on account of the negligence of the deceased. The High Court having failed to notice the above lacunae in the award of the learned Tribunal and correct the same, we are satisfied that the present is a fit case for our interference. We accordingly set aside the findings of the learned Tribunal as affirmed by the High Court in respect of issues 1 and 4 and hold that the accident had occurred due to the rash and negligent driving of the pick-up van by the first respondent.9. It has already been noticed that on basis of the discussions under issue No.3, the learned Tribunal has quantified the entitlement of the claimants to compensation at Rs.6,66,041.78. The said relief was withheld in view of the findings on issues 1 and 4 which have been now reversed by us. Consequently, we hold the claimants-appellants to be entitled to compensation of Rs.6,66,041.78 as quantified by the learned Tribunal in its order dated 20.07.2004. In so far as award of interest is concerned, in the facts of the present case we direct that the amount awarded shall carry interest at the rate of 6% per annum with effect from the date of the award of the learned Tribunal i.e. 20.07.2004.
### Response:
1
### Explanation:
The said aspects of the evidence ofdo not appear to have been taken note of or to have received any consideration of the learned Tribunal. At the same time it is possible to take the view that the evidence ofproperly read and considered, can lead to a conclusion contrary to what has been arrived at by the learned Tribunal, namely, that the accident had occurred on account of the negligence of the deceased. The High Court having failed to notice the above lacunae in the award of the learned Tribunal and correct the same, we are satisfied that the present is a fit case for our interference. We accordingly set aside the findings of the learned Tribunal as affirmed by the High Court in respect of issues 1 and 4 and hold that the accident had occurred due to the rash and negligent driving of thevan by the first respondent.9. It has already been noticed that on basis of the discussions under issue No.3, the learned Tribunal has quantified the entitlement of the claimants to compensation at Rs.6,66,041.78. The said relief was withheld in view of the findings on issues 1 and 4 which have been now reversed by us. Consequently, we hold theto be entitled to compensation of Rs.6,66,041.78 as quantified by the learned Tribunal in its order dated 20.07.2004. In so far as award of interest is concerned, in the facts of the present case we direct that the amount awarded shall carry interest at the rate of 6% per annum with effect from the date of the award of the learned Tribunal i.e. 20.07.2004.
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Bharat Sewa Sansthan Vs. U.P. Electronics Corpn. Ltd | for the respondent-Corporation, submitted that the balance amount of arrears of rent, payment of water and sewerage tax and the amount of interest as claimed by the appellant-Sansthan in its calculation statement cannot be decided by this Court in the absence of any satisfactory and tangible evidence appearing on record of this appeal. He next submitted that in terms of the Clause of the Agreement, this Court will be slow in exercise of its jurisdiction under Article 142 of the Constitution of India as the parties are governed by the procedure of the Arbitration Act, which is speedy and less expensive for effective adjudication of the dispute in issue. 20. We have carefully considered the respective contentions of the learned Counsel for the parties.21. It is not in dispute that on 11.11.1980 the respondent-Corporation took from the appellant-Sansthan an area measuring 14,925 sq. ft. on monthly rent under a lease agreement. In June 1981, the appellant-Sansthan let out additional accommodation measuring 3000 sq. ft. area on monthly rent for setting up Marketing Office of M/s. Uptron India Limited, which is the subsidiary of the respondent-Corporation. The appellant-Sansthan filed suit for recovery of arrears of rent and ejectment of the respondent-Corporation from the demised premises. In the trial Court, the respondent-Corporation preferred two applications, i.e. one under Section 8(1) of the Arbitration Act and second under Order XI Rule 14, CPC for summoning of the original lease deed from the appellant-Sansthan. The learned Additional District Judge (Special Judge, E.C. Act), Lucknow, has rejected both the applications. The High Court in writ petition filed by the respondent-Corporation against the order of the trial Court, allowed the application of the respondent-Corporation filed under Section 8(1) of the Arbitration Act. It was the specific case of the respondent-Corporation before the High Court that the original agreements are in the possession of the appellant-Sansthan, whereas the stand of the appellant-Sansthan was that the original agreements are not in its possession. The respondent-Corporation placed on record of the trial Court photocopies of the agreements along with an application under Section 8(1) of the Arbitration Act. The High Court, in our view, has rightly held that the photocopies of the lease agreements could be taken on record under Section 8 of the Arbitration Act for ascertaining the existence of arbitration clause. Thus, the dispute raised by the appellant-Sansthan against the respondent-Corporation in terms of the arbitration clause contained in the lease agreement is arbitral.22. Now, the question pressed before us is whether we should, in exercise of our power and jurisdiction under Article 142 of the Constitution of India as submitted by Mr. Shanti Bhushan, grant the payment of balance of arrears of rent, payment of balance arrears of water and sewerage tax and interest on the arrears of rent to the appellant-Sansthan, which amounts are disputed by the respondent-Corporation before us. The nature and ambit of the power of this Court under Article 142 of the Constitution of India, no doubt, is meant to do complete justice between the litigating parties, but at the same time this Court has to bear in mind that the power is conceived to meet the situations which cannot be effectively and appropriately tackled by the existing provisions of law. Human and equitable approach should be balanced to do complete justice to both the parties and not be tilted in favour of either party without ignoring the statutory provisions. This Court in exercise of its jurisdiction can grant appropriate relief where there is some manifest illegality, or where there is manifest want of jurisdiction, or where some palpable injustice is shown to have resulted to the parties.23. In the light of above factual aspects, the claim relating to balance arrears of rent, balance arrears of water and sewerage tax and rate of interest on payment of arrears of rent raised by the appellant-Sansthan in its calculation statement filed before this Court is at variance with the calculation statement submitted by the respondent-Corporation. The respondent-Corporation has denied the payment of interest to the appellant-Sansthan. The above-said disputed claims can be appropriately tackled and adjudicated upon by the Arbitrator in terms of the arbitration clause. The main objectives of the Arbitration Act is to make provision for an arbitral procedure which is fair, efficient and capable of meeting the needs of the specific arbitration and to minimise the supervisory role of Courts in the arbitral process and to permit an arbitral Tribunal to use mediation, conciliation or other procedures during the arbitral proceedings in settlement of disputes, etc. etc. This Court ordinarily will not be obliged to bypass the provisions of the Arbitration and Conciliation Act, 1996 in exercise of its power and jurisdiction under Article 142 of the Constitution of India.24. In the backdrop of this case, we do not find it a fit case to grant relief to the appellant-Sansthan as claimed by it in its calculation statement which is vehemently disputed by the respondent-Corporation. Therefore, the contention of the appellant-Sansthan that this Court can grant the payment of balance amount of arrears of rent and arrears of water and sewerage tax and interest on arrears of rent detailed in calculation statement submitted before this Court, does not merit acceptance.25. Mr. Shanti Bhushan, learned Senior Counsel, has fairly stated that in Civil Suit No. 16/2000 the appellant-Sansthan has not claimed the arrears of rent and water and sewerage tax for the additional area of 2000 sq. ft., which was subsequently let out to the respondent-Corporation, as such the claim to that extent in terms of the calculation statement filed before this Court is not pressed in this appeal. He submitted that for claiming the relief for 2000 sq. ft. area, the appellant-Sansthan will take appropriate proceedings before the Court/Forum. We do not wish to express any views on this aspect of the matter in this appeal.26. In this view of the matter, we do not find any perversity or infirmity in the order of the High Court to warrant any interference. | 0[ds]16. The Divisional Incharge (Personnel), working in the respondent-Corporation in his reply affidavit to calculation statement filed by the appellant-Sansthan on 26.2.2007, states that in terms of the order dated 12.7.2006 of thisCourt, the entire amount is paid in respect of the portion in possession of the respondent-Corporation. The possession of 60% area which was previously in use and occupation of M/s. Uptron India Limited, which is a Sick Industrial Company, has already been given to the appellant-Sansthan and the payment of rent for the said area is not covered under the directions of this Court. It is stated that the calculation chart submitted by the appellant-Sansthan showing the amount due and payable pertains to 60% portion for which rent was paid by M/s. Uptron India Limited through the respondent-Corporation and the first part of the calculation chart filed by the appellant-Sansthan indicating total amount of Rs.66,74,131.50 due, is in respect of 60% portion of the leased area. It is also stated that the respondent-Corporation was always ready and willing to make payment of agreed rent for the portion under its occupation and, in fact, it had tendered the amount, which was not accepted by the appellant-Sansthan. It is also stated in the affidavit that Clause I(3) of the lease agreement as alleged by the appellant-Sansthan is not applicable in the present case and as such no interest at the rate of 12%, as claimed, is payable and the appellant-Sansthan has calculated the interest on total amount of rent payable in respect of total area including the one which was under use and occupation of M/s. Uptron India Limited.17. We have heard the learned Counsel for the parties and examined the material on record.18.Mr. Shanti Bhushan, learned Senior Counsel appearing on behalf of the appellant-Sansthan, submitted that this Court in exercise of its jurisdiction under Article 142 of the Constitution of India for doing complete justice to the appellant-Sansthan is empowered to pass an order of payment of arrears towards water and sewerage tax and payment of interest at the rate of 12% p.a. on the arrears of rent in terms of the agreement. He submitted that sending the matter at this stage to the Arbitrator will prolong the agony of the appellant-Sansthan in getting its legitimate claims settled as per the calculation statement submitted before this Court in terms of its interim orders.r contra, Mr. Manoj Swarup, learned Counsel for the respondent-Corporation, submitted that the balance amount of arrears of rent, payment of water and sewerage tax and the amount of interest as claimed by the appellant-Sansthan in its calculation statement cannot be decided by this Court in the absence of any satisfactory and tangible evidence appearing on record of this appeal. He next submitted that in terms of the Clause of the Agreement, this Court will be slow in exercise of its jurisdiction under Article 142 of the Constitution of India as the parties are governed by the procedure of the Arbitration Act, which is speedy and less expensive for effective adjudication of the dispute in issue.We have carefully considered the respective contentions of the learned Counsel for the parties.21. It is not in dispute that on 11.11.1980 the respondent-Corporation took from the appellant-Sansthan an area measuring 14,925 sq. ft. on monthly rent under a lease agreement. In June 1981, the appellant-Sansthan let out additional accommodation measuring 3000 sq. ft. area on monthly rent for setting up Marketing Office of M/s. Uptron India Limited, which is the subsidiary of the respondent-Corporation. The appellant-Sansthan filed suit for recovery of arrears of rent and ejectment of the respondent-Corporation from the demised premises. In the trial Court, the respondent-Corporation preferred two applications, i.e. one under Section 8(1) of the Arbitration Act and second under Order XI Rule 14, CPC for summoning of the original lease deed from the appellant-Sansthan. The learned Additional District Judge (Special Judge, E.C. Act), Lucknow, has rejected both the applications. The High Court in writ petition filed by the respondent-Corporation against the order of the trial Court, allowed the application of the respondent-Corporation filed under Section 8(1) of the Arbitration Act. It was the specific case of the respondent-Corporation before the High Court that the original agreements are in the possession of the appellant-Sansthan, whereas the stand of the appellant-Sansthan was that the original agreements are not in its possession. The respondent-Corporation placed on record of the trial Court photocopies of the agreements along with an application under Section 8(1) of the Arbitration Act. The High Court, in our view, has rightly held that the photocopies of the lease agreements could be taken on record under Section 8 of the Arbitration Act for ascertaining the existence of arbitration clause. Thus, the dispute raised by the appellant-Sansthan against the respondent-Corporation in terms of the arbitration clause contained in the lease agreement is arbitral.22. Now, the question pressed before us is whether we should, in exercise of our power and jurisdiction under Article 142 of the Constitution of India as submitted by Mr. Shanti Bhushan, grant the payment of balance of arrears of rent, payment of balance arrears of water and sewerage tax and interest on the arrears of rent to the appellant-Sansthan, which amounts are disputed by the respondent-Corporation before us. The nature and ambit of the power of this Court under Article 142 of the Constitution of India, no doubt, is meant to do complete justice between the litigating parties, but at the same time this Court has to bear in mind that the power is conceived to meet the situations which cannot be effectively and appropriately tackled by the existing provisions of law. Human and equitable approach should be balanced to do complete justice to both the parties and not be tilted in favour of either party without ignoring the statutory provisions. This Court in exercise of its jurisdiction can grant appropriate relief where there is some manifest illegality, or where there is manifest want of jurisdiction, or where some palpable injustice is shown to have resulted to the parties.23. In the light of above factual aspects, the claim relating to balance arrears of rent, balance arrears of water and sewerage tax and rate of interest on payment of arrears of rent raised by the appellant-Sansthan in its calculation statement filed before this Court is at variance with the calculation statement submitted by the respondent-Corporation. The respondent-Corporation has denied the payment of interest to the appellant-Sansthan. The above-said disputed claims can be appropriately tackled and adjudicated upon by the Arbitrator in terms of the arbitration clause. The main objectives of the Arbitration Act is to make provision for an arbitral procedure which is fair, efficient and capable of meeting the needs of the specific arbitration and to minimise the supervisory role of Courts in the arbitral process and to permit an arbitral Tribunal to use mediation, conciliation or other procedures during the arbitral proceedings in settlement of disputes, etc. etc. This Court ordinarily will not be obliged to bypass the provisions of the Arbitration and Conciliation Act, 1996 in exercise of its power and jurisdiction under Article 142 of the Constitution of India.24. In the backdrop of this case, we do not find it a fit case to grant relief to the appellant-Sansthan as claimed by it in its calculation statement which is vehemently disputed by the respondent-Corporation. Therefore, the contention of the appellant-Sansthan that this Court can grant the payment of balance amount of arrears of rent and arrears of water and sewerage tax and interest on arrears of rent detailed in calculation statement submitted before this Court, does not merit acceptance.25. Mr. Shanti Bhushan, learned Senior Counsel, has fairly stated that in Civil Suit No. 16/2000 the appellant-Sansthan has not claimed the arrears of rent and water and sewerage tax for the additional area of 2000 sq. ft., which was subsequently let out to the respondent-Corporation, as such the claim to that extent in terms of the calculation statement filed before this Court is not pressed in this appeal. He submitted that for claiming the relief for 2000 sq. ft. area, the appellant-Sansthan will take appropriate proceedings before the Court/Forum. We do not wish to express any views on this aspect of the matter in this appeal.26. In this view of the matter, we do not find any perversity or infirmity in the order of the High Court to warrant any interference. | 0 | 4,652 | 1,530 | ### 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:
for the respondent-Corporation, submitted that the balance amount of arrears of rent, payment of water and sewerage tax and the amount of interest as claimed by the appellant-Sansthan in its calculation statement cannot be decided by this Court in the absence of any satisfactory and tangible evidence appearing on record of this appeal. He next submitted that in terms of the Clause of the Agreement, this Court will be slow in exercise of its jurisdiction under Article 142 of the Constitution of India as the parties are governed by the procedure of the Arbitration Act, which is speedy and less expensive for effective adjudication of the dispute in issue. 20. We have carefully considered the respective contentions of the learned Counsel for the parties.21. It is not in dispute that on 11.11.1980 the respondent-Corporation took from the appellant-Sansthan an area measuring 14,925 sq. ft. on monthly rent under a lease agreement. In June 1981, the appellant-Sansthan let out additional accommodation measuring 3000 sq. ft. area on monthly rent for setting up Marketing Office of M/s. Uptron India Limited, which is the subsidiary of the respondent-Corporation. The appellant-Sansthan filed suit for recovery of arrears of rent and ejectment of the respondent-Corporation from the demised premises. In the trial Court, the respondent-Corporation preferred two applications, i.e. one under Section 8(1) of the Arbitration Act and second under Order XI Rule 14, CPC for summoning of the original lease deed from the appellant-Sansthan. The learned Additional District Judge (Special Judge, E.C. Act), Lucknow, has rejected both the applications. The High Court in writ petition filed by the respondent-Corporation against the order of the trial Court, allowed the application of the respondent-Corporation filed under Section 8(1) of the Arbitration Act. It was the specific case of the respondent-Corporation before the High Court that the original agreements are in the possession of the appellant-Sansthan, whereas the stand of the appellant-Sansthan was that the original agreements are not in its possession. The respondent-Corporation placed on record of the trial Court photocopies of the agreements along with an application under Section 8(1) of the Arbitration Act. The High Court, in our view, has rightly held that the photocopies of the lease agreements could be taken on record under Section 8 of the Arbitration Act for ascertaining the existence of arbitration clause. Thus, the dispute raised by the appellant-Sansthan against the respondent-Corporation in terms of the arbitration clause contained in the lease agreement is arbitral.22. Now, the question pressed before us is whether we should, in exercise of our power and jurisdiction under Article 142 of the Constitution of India as submitted by Mr. Shanti Bhushan, grant the payment of balance of arrears of rent, payment of balance arrears of water and sewerage tax and interest on the arrears of rent to the appellant-Sansthan, which amounts are disputed by the respondent-Corporation before us. The nature and ambit of the power of this Court under Article 142 of the Constitution of India, no doubt, is meant to do complete justice between the litigating parties, but at the same time this Court has to bear in mind that the power is conceived to meet the situations which cannot be effectively and appropriately tackled by the existing provisions of law. Human and equitable approach should be balanced to do complete justice to both the parties and not be tilted in favour of either party without ignoring the statutory provisions. This Court in exercise of its jurisdiction can grant appropriate relief where there is some manifest illegality, or where there is manifest want of jurisdiction, or where some palpable injustice is shown to have resulted to the parties.23. In the light of above factual aspects, the claim relating to balance arrears of rent, balance arrears of water and sewerage tax and rate of interest on payment of arrears of rent raised by the appellant-Sansthan in its calculation statement filed before this Court is at variance with the calculation statement submitted by the respondent-Corporation. The respondent-Corporation has denied the payment of interest to the appellant-Sansthan. The above-said disputed claims can be appropriately tackled and adjudicated upon by the Arbitrator in terms of the arbitration clause. The main objectives of the Arbitration Act is to make provision for an arbitral procedure which is fair, efficient and capable of meeting the needs of the specific arbitration and to minimise the supervisory role of Courts in the arbitral process and to permit an arbitral Tribunal to use mediation, conciliation or other procedures during the arbitral proceedings in settlement of disputes, etc. etc. This Court ordinarily will not be obliged to bypass the provisions of the Arbitration and Conciliation Act, 1996 in exercise of its power and jurisdiction under Article 142 of the Constitution of India.24. In the backdrop of this case, we do not find it a fit case to grant relief to the appellant-Sansthan as claimed by it in its calculation statement which is vehemently disputed by the respondent-Corporation. Therefore, the contention of the appellant-Sansthan that this Court can grant the payment of balance amount of arrears of rent and arrears of water and sewerage tax and interest on arrears of rent detailed in calculation statement submitted before this Court, does not merit acceptance.25. Mr. Shanti Bhushan, learned Senior Counsel, has fairly stated that in Civil Suit No. 16/2000 the appellant-Sansthan has not claimed the arrears of rent and water and sewerage tax for the additional area of 2000 sq. ft., which was subsequently let out to the respondent-Corporation, as such the claim to that extent in terms of the calculation statement filed before this Court is not pressed in this appeal. He submitted that for claiming the relief for 2000 sq. ft. area, the appellant-Sansthan will take appropriate proceedings before the Court/Forum. We do not wish to express any views on this aspect of the matter in this appeal.26. In this view of the matter, we do not find any perversity or infirmity in the order of the High Court to warrant any interference.
### Response:
0
### Explanation:
learned Counsel for the respondent-Corporation, submitted that the balance amount of arrears of rent, payment of water and sewerage tax and the amount of interest as claimed by the appellant-Sansthan in its calculation statement cannot be decided by this Court in the absence of any satisfactory and tangible evidence appearing on record of this appeal. He next submitted that in terms of the Clause of the Agreement, this Court will be slow in exercise of its jurisdiction under Article 142 of the Constitution of India as the parties are governed by the procedure of the Arbitration Act, which is speedy and less expensive for effective adjudication of the dispute in issue.We have carefully considered the respective contentions of the learned Counsel for the parties.21. It is not in dispute that on 11.11.1980 the respondent-Corporation took from the appellant-Sansthan an area measuring 14,925 sq. ft. on monthly rent under a lease agreement. In June 1981, the appellant-Sansthan let out additional accommodation measuring 3000 sq. ft. area on monthly rent for setting up Marketing Office of M/s. Uptron India Limited, which is the subsidiary of the respondent-Corporation. The appellant-Sansthan filed suit for recovery of arrears of rent and ejectment of the respondent-Corporation from the demised premises. In the trial Court, the respondent-Corporation preferred two applications, i.e. one under Section 8(1) of the Arbitration Act and second under Order XI Rule 14, CPC for summoning of the original lease deed from the appellant-Sansthan. The learned Additional District Judge (Special Judge, E.C. Act), Lucknow, has rejected both the applications. The High Court in writ petition filed by the respondent-Corporation against the order of the trial Court, allowed the application of the respondent-Corporation filed under Section 8(1) of the Arbitration Act. It was the specific case of the respondent-Corporation before the High Court that the original agreements are in the possession of the appellant-Sansthan, whereas the stand of the appellant-Sansthan was that the original agreements are not in its possession. The respondent-Corporation placed on record of the trial Court photocopies of the agreements along with an application under Section 8(1) of the Arbitration Act. The High Court, in our view, has rightly held that the photocopies of the lease agreements could be taken on record under Section 8 of the Arbitration Act for ascertaining the existence of arbitration clause. Thus, the dispute raised by the appellant-Sansthan against the respondent-Corporation in terms of the arbitration clause contained in the lease agreement is arbitral.22. Now, the question pressed before us is whether we should, in exercise of our power and jurisdiction under Article 142 of the Constitution of India as submitted by Mr. Shanti Bhushan, grant the payment of balance of arrears of rent, payment of balance arrears of water and sewerage tax and interest on the arrears of rent to the appellant-Sansthan, which amounts are disputed by the respondent-Corporation before us. The nature and ambit of the power of this Court under Article 142 of the Constitution of India, no doubt, is meant to do complete justice between the litigating parties, but at the same time this Court has to bear in mind that the power is conceived to meet the situations which cannot be effectively and appropriately tackled by the existing provisions of law. Human and equitable approach should be balanced to do complete justice to both the parties and not be tilted in favour of either party without ignoring the statutory provisions. This Court in exercise of its jurisdiction can grant appropriate relief where there is some manifest illegality, or where there is manifest want of jurisdiction, or where some palpable injustice is shown to have resulted to the parties.23. In the light of above factual aspects, the claim relating to balance arrears of rent, balance arrears of water and sewerage tax and rate of interest on payment of arrears of rent raised by the appellant-Sansthan in its calculation statement filed before this Court is at variance with the calculation statement submitted by the respondent-Corporation. The respondent-Corporation has denied the payment of interest to the appellant-Sansthan. The above-said disputed claims can be appropriately tackled and adjudicated upon by the Arbitrator in terms of the arbitration clause. The main objectives of the Arbitration Act is to make provision for an arbitral procedure which is fair, efficient and capable of meeting the needs of the specific arbitration and to minimise the supervisory role of Courts in the arbitral process and to permit an arbitral Tribunal to use mediation, conciliation or other procedures during the arbitral proceedings in settlement of disputes, etc. etc. This Court ordinarily will not be obliged to bypass the provisions of the Arbitration and Conciliation Act, 1996 in exercise of its power and jurisdiction under Article 142 of the Constitution of India.24. In the backdrop of this case, we do not find it a fit case to grant relief to the appellant-Sansthan as claimed by it in its calculation statement which is vehemently disputed by the respondent-Corporation. Therefore, the contention of the appellant-Sansthan that this Court can grant the payment of balance amount of arrears of rent and arrears of water and sewerage tax and interest on arrears of rent detailed in calculation statement submitted before this Court, does not merit acceptance.25. Mr. Shanti Bhushan, learned Senior Counsel, has fairly stated that in Civil Suit No. 16/2000 the appellant-Sansthan has not claimed the arrears of rent and water and sewerage tax for the additional area of 2000 sq. ft., which was subsequently let out to the respondent-Corporation, as such the claim to that extent in terms of the calculation statement filed before this Court is not pressed in this appeal. He submitted that for claiming the relief for 2000 sq. ft. area, the appellant-Sansthan will take appropriate proceedings before the Court/Forum. We do not wish to express any views on this aspect of the matter in this appeal.26. In this view of the matter, we do not find any perversity or infirmity in the order of the High Court to warrant any interference.
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M/S Voltas Limited, Bombay Vs. Union Of India & Ors | to the public interest. 14. At this stage it shall be proper to refer to Section 38 of the Act. Sub-section 1 of Section 38 also contains a statutory fiction because it says that for purposes of any proceedings before the Commission under Section 37, a restrictive trade practice shall be deemed to be prejudicial to the public interest unless the Commission is satisfied of any or more of the circumstances specified in clauses (a to (k) of sub-section 1 of Section 38. The scheme of the Act appears to be that first it specifies some trade practices, under sub-section 1 of Section 33, as restrictive trade practices. Then it has prescribed a forum under Section 37, to inquire as to whether any such trade practice is prejudicial to the public interest. This question has to be examined in the light of Section 38 which in many judgments have been described as gateways. In other words, inspite of a finding that a particular agreement contains a clause which is related to a restrictive trade practice, if the Commission is satisfied in respect of the existence of any of the circumstances specified in clauses (a) to (k) of sub-section 1 of Section 38, no order under Section 37 is to be passed to desist or discontinue such practice or to declare any part of the agreement as void. One of the circumstances specified in clause (h) of sub-section 1 of Section 38 is:- "38.(1)(h ) that the restriction does not directly or indirectly restrict or discourage competition to any material degree in any relevant trade or industry and is not likely to do so;If the Com mission is satisfied that any practice which has been held to be restrictive trade practice does not directly or indirectly restrict or discourage competition to any material degree in any relevant trade or industry then it can resist passing any order under Section 37 directing the per son concerned to desist or to discontinue the practice. It may be mentioned that in connection with old sub-section 1 of Section 33 in the case of Tata Engg. and Locomotive Co. (supra) this Court point ed out that the exclusive dealings do not impede competition but promote it. It was said:-"The exclusive dealings do no impede competition but promote it. Such dealings lead to specialisation and improvement in after-sales service. The exclusive dealership agreements do not restrict distribution in any area or prevent competition. The customer has the choice of buying any make he like s. The advantage of exclusive dealership is that a dealer specialises in his own type of vehicles with all the attending advantages of trained personnel. special service stations, workshops and spare parts." * It was also said that by specialising in each make of vehicle and providing the best possible service that the competition between the various makes is enhanced. In that connection it was also said:- "By making its dealers exclusive to Telco, there cannot be said to be any prevention, distortion or restriction of competition in the territory in which a dealer operates, either between manufacturers of the same type of vehicles or between dealers in these vehicles. Any manufacturer of vehicles such as those of Telco may manufacture and sell its vehicles in a territory in which Telcos dealers operate. Any other manufacturer of vehicles similar to those of Telco is also free to appoint dealers of its choice in the same territory covered by Telco, dealers.The channels for outlet for vehicles have not been blocked by the fact that the dealers appointed by Telco arc exclusive to Telco nor it can be said that Telco has by its exclusive arrangement with its dealers affected the flow of supplies of vehicles into the market." * Again in the case of Mahindra and Mahindra Ltd. v. Union of India (supra), it was said that after the Commission is satisfied in respect o f restrictive trade practices then it has to proceed to consider whether any of the gateways provided in Section 38(1) exist so that the trade practice, though found restrictive, is deemed not to be prejudicial to the public interest.15.In the light of what has been said above, if the order of the Commission is examined, it shall appear that the Commission has set out briefly the facts of 15 cases. Then the Commission has pointed out that the Director General in support of his case has tendered the various agreements. Thereafter reference has been made to the affidavits file on behalf of the appellant and other documents. The real discussion is only in para 40 of the Order under appeal which is as follows: "We have gone through voluminous records and pleadings pertaining to these enquiries, evidence produced by the parties, oral arguments, written submissions and cases referred to by the p arties and are of the view that no case for gateways under Section 38(1), as pleaded, has been made out by the Voltas in these proceedings. Likewise the manufacturer Simtools Limited in RTP Enquiry No.483 of 1987 has also failed to make out any case for the gateways. Therefore, we hold that the respondents have indulged into the restrictive trade practices, as alleged in t he Notice of Enquiry, and those practices arc prejudicial to the public interest in each of the 15 enquiries." * 16. According to us, the Commission was required to go deeper into the matter and to record findings in respect of different agreements whether the objectionable clauses of the registered agreements were prejudicial to the public interest. It need not be impressed that any finding recorded by the Commission under Section 37 and direction given in terms of clauses (a) and (b) of sub-section 1 of Section 37 has a far reaching effect. As such every aspect of the matter is required to be examined in the light of the provisions of Sections 37 and 38 of the Act before an order to cease and desist is passed by the Commission. | 1[ds]From the facts of that case, it will appear that Tata Engg. and Locomotive Co. (hereinafter referred to as the TELCO) used to sell vehicles and had of its own initiative introduced certain procedures for distribution of its vehicles. It had notified to its dealers the maximum price for each model of vehicle which they can charge from consumers. When the vehicles were sold it was the responsibility of TELCO to provide facilities for servicing and repairing of the vehicles marketed by it. For that, after sale services had been provided for in different parts of the country It had a net work of dealers service centres and zonal offices. An application was filed by the Registrar, Restrictive Trade Agreements, under Section 10(a)(iii) of the Act before the Commission, for inquiry under Section 37 of the Act into restrictive trade practices alleged therein. Special grievance in respect of territorial restriction and allocation of area or market for exclusive dealership was made. It was pointed out to the Commission by the Registrar, Restrictive Trade Agreements, who had then the power to file an application before the Commission under Section 10(a)(iii) that some of the clauses of the dealership agreement, imposed restriction on the dealers in respect of territories, the maximum price at which goods could be resold, and in respect of dealing in products of other manufacturers which amounted to restrictive tradeCommission held that the practice of allocation of territories to Telcos dealers was not justified.But now with the amendment of man part of sub-section 1 of Section 33 with a statutory fiction the situation has changed. It can be said that clauses (a) to (1) of Sub-Section 1 of Section 33 provide statutory illustrations of restrictive trade practices. The framers of the Act have now in clear and unambiguous words said that every agreement falling within one or more of the categories specified in clauses (a) to (1) of sub-section 1 of Section 33, shall be deemed for the purposes of the said Act, to be an agreement relating to restrictive trade practices and shall be subject to registration in accordance with the provisions of Chapter V. Now it is no more open to the Commission or to this Court to test and examine any of the trade practices mentioned in clauses (a) to (1) of sub-section 1 of Section 33 in the light of Section 2(o) of the Act, for the purpose of recording a finding as to whether those types of trade practices shall be restrictive trade practices within the meaning of Section 2(o) of the Act. This exercise has to be done only in respect of such trade practices which have not been enumerated in any of the clauses from (a) to (1). Only such trade practices have to be examined in the light of Section 2(o) of the Act, as to whether they amounted to restrictive trade practices. It need not be pointed out that both judgments aforesaid of this Court interpreted the scope of sub-section 1 of Section 33, as it stood prior to the amendment by Act 30 of 1984. But after the amendment of sub-section 1 of Section 33 if an agreement falls within one of the clauses of the said sub-section, specifying a restrictive trade practice, then it is no more open to the Commission or to the Court to say that it shall not amount to restrictive trade practice. Trade practices enumerated in clauses (a) to (1) of sub-section (1) of Section 33 shall be deemed to have now been statutorily determined and specified as restrictive trade Practices. Neither the Commission nor the Court can question the wisdom of the Parliament for having statutorily determined certain trade practices as restrictive trade practices unless in this process there is contravention of any of the provisions of the Constitution. In this background, if any agreement contains a trade practice which falls in any of the clauses of sub-section 1 of Section 33 then such trade practice shall be deemed to be restrictive trade practice and such agreement has to besuch persons who have got their agreements registered on their own in order to escape prosecution, although in such agreements there may not be any clause relating to restrictive trade practices, cannot urge before the Commission, after having got the agreements registered, that they do not contain any clause relating to any restrictive trade practice. On the other hand, persons who for one reason or other have not got their agreements registered under Section 35, will be in an advantageous position inasmuch as in respect of their agreements, Commission will have to examine both aspects (i) whether the agreement relates to any restrictive trade practice (ii) even if it relates to restrictive trade practice, whether the said practice is prejudicial to the public interest. It is true that under Section 37, the Commission has been vested with the power to inquire in respect of agreements which have been registered under Section 35 as well as those which have not been registered. But the fact remains that once the Commission is satisfied that a particular agreement which has not been registered under Section 35, falls within any of the clauses from (a) to (1) of subsection 1 of Section 33, then no further inquiry is to be done, as to whether such agreement relates to restrictive trade practices or not. The statutory fiction incorporated in sub-section 1 of Section 33 shall also be applicable in respect of such agreements apart from the penalty provided under Section 48 of the Act. As such there is not much scope for discrimination between persons who have got their agreements registered and those who have no t got their agreementsto us, there is no conflict between Sections 2(o) and 33(1). Clauses (a) to (1) of sub-section 1 of Section 33 specify such trade practices which have been statutorily recognised as restrictive trade practices. But there may be other trade practices, not covered by clauses (a) to (1) of sub-section 1 of Section 33, which can be examined by the Commission in the light of Sectionto us, in this respect a decision has to be taken by the person who is a party to the said agreement whether to get such agreement registered under Section 35. But once he gets the agreement registered, then he is debarred from questioning whether contains any clause relating to a restrictive trade practice. Sub-section 1 of Section 33 specifies in different clauses various types of trade practices, which have now been recognised as restrictive trade practices. Any person who is a party to any agreement has to examine the agreement in light of those clauses. If according to such person, the agreement in question does not contain any clause relating to any of the restrictive trade practices specified in clauses (a) to (1), such person need not get the agreement registered under Section 35. He will be at liberty to satisfy the Commission on that question. But once the agreement is registered, then such agreement cannot be inquired into by the Commission, for the purpose as to whether it relates to any restrictive trade practice; of course inspite of registration of the agreement, the person concerned can satisfy the Commission that such practice is not prejudicial to the publicinterest.15.In the light of what has been said above, if the order of the Commission is examined, it shall appear that the Commission has set out briefly the facts of 15 cases. Then the Commission has pointed out that the Director General in support of his case has tendered the various agreements. Thereafter reference has been made to the affidavits file on behalf of the appellant and other documents. The real discussion is only in para 40 of the Order under appeal which is ashave gone through voluminous records and pleadings pertaining to these enquiries, evidence produced by the parties, oral arguments, written submissions and cases referred to by the p arties and are of the view that no case for gateways under Section 38(1), as pleaded, has been made out by the Voltas in these proceedings. Likewise the manufacturer Simtools Limited in RTP Enquiry No.483 of 1987 has also failed to make out any case for the gateways. Therefore, we hold that the respondents have indulged into the restrictive trade practices, as alleged in t he Notice of Enquiry, and those practices arc prejudicial to the public interest in each of the 15 enquiries."According to us, the Commission was required to go deeper into the matter and to record findings in respect of different agreements whether the objectionable clauses of the registered agreements were prejudicial to the public interest. It need not be impressed that any finding recorded by the Commission under Section 37 and direction given in terms of clauses (a) and (b) of sub-section 1 of Section 37 has a far reaching effect. As such every aspect of the matter is required to be examined in the light of the provisions of Sections 37 and 38 of the Act before an order to cease and desist is passed by the Commission. | 1 | 6,759 | 1,695 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
to the public interest. 14. At this stage it shall be proper to refer to Section 38 of the Act. Sub-section 1 of Section 38 also contains a statutory fiction because it says that for purposes of any proceedings before the Commission under Section 37, a restrictive trade practice shall be deemed to be prejudicial to the public interest unless the Commission is satisfied of any or more of the circumstances specified in clauses (a to (k) of sub-section 1 of Section 38. The scheme of the Act appears to be that first it specifies some trade practices, under sub-section 1 of Section 33, as restrictive trade practices. Then it has prescribed a forum under Section 37, to inquire as to whether any such trade practice is prejudicial to the public interest. This question has to be examined in the light of Section 38 which in many judgments have been described as gateways. In other words, inspite of a finding that a particular agreement contains a clause which is related to a restrictive trade practice, if the Commission is satisfied in respect of the existence of any of the circumstances specified in clauses (a) to (k) of sub-section 1 of Section 38, no order under Section 37 is to be passed to desist or discontinue such practice or to declare any part of the agreement as void. One of the circumstances specified in clause (h) of sub-section 1 of Section 38 is:- "38.(1)(h ) that the restriction does not directly or indirectly restrict or discourage competition to any material degree in any relevant trade or industry and is not likely to do so;If the Com mission is satisfied that any practice which has been held to be restrictive trade practice does not directly or indirectly restrict or discourage competition to any material degree in any relevant trade or industry then it can resist passing any order under Section 37 directing the per son concerned to desist or to discontinue the practice. It may be mentioned that in connection with old sub-section 1 of Section 33 in the case of Tata Engg. and Locomotive Co. (supra) this Court point ed out that the exclusive dealings do not impede competition but promote it. It was said:-"The exclusive dealings do no impede competition but promote it. Such dealings lead to specialisation and improvement in after-sales service. The exclusive dealership agreements do not restrict distribution in any area or prevent competition. The customer has the choice of buying any make he like s. The advantage of exclusive dealership is that a dealer specialises in his own type of vehicles with all the attending advantages of trained personnel. special service stations, workshops and spare parts." * It was also said that by specialising in each make of vehicle and providing the best possible service that the competition between the various makes is enhanced. In that connection it was also said:- "By making its dealers exclusive to Telco, there cannot be said to be any prevention, distortion or restriction of competition in the territory in which a dealer operates, either between manufacturers of the same type of vehicles or between dealers in these vehicles. Any manufacturer of vehicles such as those of Telco may manufacture and sell its vehicles in a territory in which Telcos dealers operate. Any other manufacturer of vehicles similar to those of Telco is also free to appoint dealers of its choice in the same territory covered by Telco, dealers.The channels for outlet for vehicles have not been blocked by the fact that the dealers appointed by Telco arc exclusive to Telco nor it can be said that Telco has by its exclusive arrangement with its dealers affected the flow of supplies of vehicles into the market." * Again in the case of Mahindra and Mahindra Ltd. v. Union of India (supra), it was said that after the Commission is satisfied in respect o f restrictive trade practices then it has to proceed to consider whether any of the gateways provided in Section 38(1) exist so that the trade practice, though found restrictive, is deemed not to be prejudicial to the public interest.15.In the light of what has been said above, if the order of the Commission is examined, it shall appear that the Commission has set out briefly the facts of 15 cases. Then the Commission has pointed out that the Director General in support of his case has tendered the various agreements. Thereafter reference has been made to the affidavits file on behalf of the appellant and other documents. The real discussion is only in para 40 of the Order under appeal which is as follows: "We have gone through voluminous records and pleadings pertaining to these enquiries, evidence produced by the parties, oral arguments, written submissions and cases referred to by the p arties and are of the view that no case for gateways under Section 38(1), as pleaded, has been made out by the Voltas in these proceedings. Likewise the manufacturer Simtools Limited in RTP Enquiry No.483 of 1987 has also failed to make out any case for the gateways. Therefore, we hold that the respondents have indulged into the restrictive trade practices, as alleged in t he Notice of Enquiry, and those practices arc prejudicial to the public interest in each of the 15 enquiries." * 16. According to us, the Commission was required to go deeper into the matter and to record findings in respect of different agreements whether the objectionable clauses of the registered agreements were prejudicial to the public interest. It need not be impressed that any finding recorded by the Commission under Section 37 and direction given in terms of clauses (a) and (b) of sub-section 1 of Section 37 has a far reaching effect. As such every aspect of the matter is required to be examined in the light of the provisions of Sections 37 and 38 of the Act before an order to cease and desist is passed by the Commission.
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the amendment of sub-section 1 of Section 33 if an agreement falls within one of the clauses of the said sub-section, specifying a restrictive trade practice, then it is no more open to the Commission or to the Court to say that it shall not amount to restrictive trade practice. Trade practices enumerated in clauses (a) to (1) of sub-section (1) of Section 33 shall be deemed to have now been statutorily determined and specified as restrictive trade Practices. Neither the Commission nor the Court can question the wisdom of the Parliament for having statutorily determined certain trade practices as restrictive trade practices unless in this process there is contravention of any of the provisions of the Constitution. In this background, if any agreement contains a trade practice which falls in any of the clauses of sub-section 1 of Section 33 then such trade practice shall be deemed to be restrictive trade practice and such agreement has to besuch persons who have got their agreements registered on their own in order to escape prosecution, although in such agreements there may not be any clause relating to restrictive trade practices, cannot urge before the Commission, after having got the agreements registered, that they do not contain any clause relating to any restrictive trade practice. On the other hand, persons who for one reason or other have not got their agreements registered under Section 35, will be in an advantageous position inasmuch as in respect of their agreements, Commission will have to examine both aspects (i) whether the agreement relates to any restrictive trade practice (ii) even if it relates to restrictive trade practice, whether the said practice is prejudicial to the public interest. It is true that under Section 37, the Commission has been vested with the power to inquire in respect of agreements which have been registered under Section 35 as well as those which have not been registered. But the fact remains that once the Commission is satisfied that a particular agreement which has not been registered under Section 35, falls within any of the clauses from (a) to (1) of subsection 1 of Section 33, then no further inquiry is to be done, as to whether such agreement relates to restrictive trade practices or not. The statutory fiction incorporated in sub-section 1 of Section 33 shall also be applicable in respect of such agreements apart from the penalty provided under Section 48 of the Act. As such there is not much scope for discrimination between persons who have got their agreements registered and those who have no t got their agreementsto us, there is no conflict between Sections 2(o) and 33(1). Clauses (a) to (1) of sub-section 1 of Section 33 specify such trade practices which have been statutorily recognised as restrictive trade practices. But there may be other trade practices, not covered by clauses (a) to (1) of sub-section 1 of Section 33, which can be examined by the Commission in the light of Sectionto us, in this respect a decision has to be taken by the person who is a party to the said agreement whether to get such agreement registered under Section 35. But once he gets the agreement registered, then he is debarred from questioning whether contains any clause relating to a restrictive trade practice. Sub-section 1 of Section 33 specifies in different clauses various types of trade practices, which have now been recognised as restrictive trade practices. Any person who is a party to any agreement has to examine the agreement in light of those clauses. If according to such person, the agreement in question does not contain any clause relating to any of the restrictive trade practices specified in clauses (a) to (1), such person need not get the agreement registered under Section 35. He will be at liberty to satisfy the Commission on that question. But once the agreement is registered, then such agreement cannot be inquired into by the Commission, for the purpose as to whether it relates to any restrictive trade practice; of course inspite of registration of the agreement, the person concerned can satisfy the Commission that such practice is not prejudicial to the publicinterest.15.In the light of what has been said above, if the order of the Commission is examined, it shall appear that the Commission has set out briefly the facts of 15 cases. Then the Commission has pointed out that the Director General in support of his case has tendered the various agreements. Thereafter reference has been made to the affidavits file on behalf of the appellant and other documents. The real discussion is only in para 40 of the Order under appeal which is ashave gone through voluminous records and pleadings pertaining to these enquiries, evidence produced by the parties, oral arguments, written submissions and cases referred to by the p arties and are of the view that no case for gateways under Section 38(1), as pleaded, has been made out by the Voltas in these proceedings. Likewise the manufacturer Simtools Limited in RTP Enquiry No.483 of 1987 has also failed to make out any case for the gateways. Therefore, we hold that the respondents have indulged into the restrictive trade practices, as alleged in t he Notice of Enquiry, and those practices arc prejudicial to the public interest in each of the 15 enquiries."According to us, the Commission was required to go deeper into the matter and to record findings in respect of different agreements whether the objectionable clauses of the registered agreements were prejudicial to the public interest. It need not be impressed that any finding recorded by the Commission under Section 37 and direction given in terms of clauses (a) and (b) of sub-section 1 of Section 37 has a far reaching effect. As such every aspect of the matter is required to be examined in the light of the provisions of Sections 37 and 38 of the Act before an order to cease and desist is passed by the Commission.
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S. Srikantiah & Ors Vs. The Regional Transport Authority,Anantapur & Ors | Pradesh case cited above held that the directions issued by the Government in G. O. Ms. No. 1077 of 7th May 1959 pursuant to which the Regional Transport Authority by its proceedings dated 12th May 1959 called upon the Regional Transport Officers to notify the operators and which the said officers had notified authorising them to collect the enhanced fares was sufficient authorisation for them to collect the enhanced fares as if the fare tables had been amended. 4. It may be mentioned that the constitutionality of the enhanced surcharge was upheld by this Court in Nazeeria Motor Service v. State of Andhra Pradesh. (1970) 2 SCR 52 = (AIR 1970 SC 1864 ), and therefore the only question that survives is whether there is an impediment to the operators to collect fares without the conditions of the permit being amended. There is of course the other basic question whether the payment of the enhanced tax is dependent on the operators collecting the enhanced fares. In any case it is unnecessary to consider this question in the view we have taken that the contention urged by the Appellant is unsustainable. The relevant provisions of the Motor vehicles Act clearly support the view taken by the High Court thatonce a Notification is issued by the Government in exercise of the powers under S. 43 (1) (i) the conditions of the permit stand statutorily amended by virtue of Section 59 (3) (c). 5. The provisions of Sections 43, 44, 48 and 59 before their amendment in 1969, in so far as they are applicable to the matter under consideration are as follows : 43 (1) A State Government. . . . may from time to time by Notification in the official Gazette issue directions to the State Transport Authority - (i) regarding the fixing of fares and freights for stage carriages, contract carriages and public carriers; 44 (3) A State Transport Authority shall give effect to any directions issued under Section 43 and subject to such direction and save as otherwise provided by or under this Act shall exercise and discharge throughout the State the following powers and functions namely. a) xx xx xx b) xx xx xx c) xx xx xx d) xx xx xx (4) For the purpose exercising and discharging the powers and functions specified in sub-section (3), a State Transport Authority may, subject to such conditions as may be prescribed, issue direction to any Regional Transport Authority and the Regional Transport Authority shall in the discharge it of functions under this Act give effect to and be guided by such directions. 48 (3) The Regional Transport Authority if it decides to grant a stage carriage permit, may grant the permit for a service of stage carriage of a specified description or for one or more particular stage carriages, and may, subject to any rules that may be made under this Act, attach to the permit any one or more of the following conditions namely. (i) to (xi) xx xx xx (xii) that fares shall be charged in accordance with the approved fare table ; 59 (3) The following shall be conditions of every permit : (c) that any prohibition or restriction imposed and any maximum or minimum fares or freights fixed by notification made under Section 43 are observed in connection with any vehicle or vehicles to which the permit relates ; The Government has pursuant to Section 43 issued the following notifications :"In exercise of the powers conferred by clause (i) of sub-section (1) of Section 43 of the Motor Vehicles Act, 1939 (Central Act IV of 1939) and in suppression of the Notification of the Government of A. P. in Public Works and Transport Department No. 1184 dated the 11th August 1956, published at page 2026 of part I of the A. P. Gazette dated the 6th September 1956, the Governor of Andhra Pradesh hereby directs the State Transport Authority to fix the following maximum fares inclusive of the tax leviable under the Madras Motor Vehicles (Taxation of Passengers and Goods) Act 1952 (Madras Act XVI of 1952) for stage carriages in the territories of the State of Andhra Pradesh which immediately before the 1st November, 1956 were comprised in the State of Andhra..... " 6. In view of the directions given by the Government in the above notification the Regional Transport Authority called upon the Regional Transport Officers to notify the operators to collect the enhanced fares and accordingly the officers concerned compliance with those directions notified the operators. Once the provisions Sections 43 (1) (i) and 44 (4) are complied with Section 59 (3) (c) comes into play and it has the effect of incorporating the maximum fares as notified including the tax leviable, as a condition of the permit. This being the legal position we do not think there is any justification for the contention that the collection by the operators of the enhanced fares without the table of fares being amended would entail the cancellation of the permits. 7. The decision of the Madhya Pradesh case is clearly distinguishable as it does not appear that any notification was issued under Section 43 as was done in this case nor do we find that the provisions of Section 59 (3) (c) have been referred to or considered. At page 111, (AIR 1962 MP 108 ), Dixit, C J., noted the submissions of the Additional Government pleader that instructions would be issued to all Regional Transport Authorities for a revision of fare tables under Section 43 of the Motor Vehicles Act so as to enable the operators to recover the tax amount from the passengers as extra fare, which he observed was a step in the right direction. These observations show that there was no notification under Section 43 nor any instructions given to the Regional Transport Officers by the Regional Transport Authority. In the circumstances that case is not an authority for the proposition contended by the learned Advocate for the Appellant. 8. | 0[ds]This very contention was raised before the High Court which disagreeing with the Madhya Pradesh case cited above held that the directions issued by the Government in G. O. Ms. No. 1077 of 7th May 1959 pursuant to which the Regional Transport Authority by its proceedings dated 12th May 1959 called upon the Regional Transport Officers to notify the operators and which the said officers had notified authorising them to collect the enhanced fares was sufficient authorisation for them to collect the enhanced fares as if the fare tables had been amended6. In view of the directions given by the Government in the above notification the Regional Transport Authority called upon the Regional Transport Officers to notify the operators to collect the enhanced fares and accordingly the officers concerned compliance with those directions notified the operators. Once the provisions Sections 43 (1) (i) and 44 (4) are complied with Section 59 (3) (c) comes into play and it has the effect of incorporating the maximum fares as notified including the tax leviable, as a condition of the permit. This being the legal position we do not think there is any justification for the contention that the collection by the operators of the enhanced fares without the table of fares being amended would entail the cancellation of the permits7. The decision of the Madhya Pradesh case is clearly distinguishable as it does not appear that any notification was issued under Section 43 as was done in this case nor do we find that the provisions of Section 59 (3) (c) have been referred to or considered. At page 111, (AIR 1962 MP 108 ), Dixit, C J., noted the submissions of the Additional Government pleader that instructions would be issued to all Regional Transport Authorities for a revision of fare tables under Section 43 of the Motor Vehicles Act so as to enable the operators to recover the tax amount from the passengers as extra fare, which he observed was a step in the right direction. These observations show that there was no notification under Section 43 nor any instructions given to the Regional Transport Officers by the Regional Transport Authority. In the circumstances that case is not an authority for the proposition contended by the learned Advocate for the Appellant. | 0 | 1,800 | 414 | ### 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:
Pradesh case cited above held that the directions issued by the Government in G. O. Ms. No. 1077 of 7th May 1959 pursuant to which the Regional Transport Authority by its proceedings dated 12th May 1959 called upon the Regional Transport Officers to notify the operators and which the said officers had notified authorising them to collect the enhanced fares was sufficient authorisation for them to collect the enhanced fares as if the fare tables had been amended. 4. It may be mentioned that the constitutionality of the enhanced surcharge was upheld by this Court in Nazeeria Motor Service v. State of Andhra Pradesh. (1970) 2 SCR 52 = (AIR 1970 SC 1864 ), and therefore the only question that survives is whether there is an impediment to the operators to collect fares without the conditions of the permit being amended. There is of course the other basic question whether the payment of the enhanced tax is dependent on the operators collecting the enhanced fares. In any case it is unnecessary to consider this question in the view we have taken that the contention urged by the Appellant is unsustainable. The relevant provisions of the Motor vehicles Act clearly support the view taken by the High Court thatonce a Notification is issued by the Government in exercise of the powers under S. 43 (1) (i) the conditions of the permit stand statutorily amended by virtue of Section 59 (3) (c). 5. The provisions of Sections 43, 44, 48 and 59 before their amendment in 1969, in so far as they are applicable to the matter under consideration are as follows : 43 (1) A State Government. . . . may from time to time by Notification in the official Gazette issue directions to the State Transport Authority - (i) regarding the fixing of fares and freights for stage carriages, contract carriages and public carriers; 44 (3) A State Transport Authority shall give effect to any directions issued under Section 43 and subject to such direction and save as otherwise provided by or under this Act shall exercise and discharge throughout the State the following powers and functions namely. a) xx xx xx b) xx xx xx c) xx xx xx d) xx xx xx (4) For the purpose exercising and discharging the powers and functions specified in sub-section (3), a State Transport Authority may, subject to such conditions as may be prescribed, issue direction to any Regional Transport Authority and the Regional Transport Authority shall in the discharge it of functions under this Act give effect to and be guided by such directions. 48 (3) The Regional Transport Authority if it decides to grant a stage carriage permit, may grant the permit for a service of stage carriage of a specified description or for one or more particular stage carriages, and may, subject to any rules that may be made under this Act, attach to the permit any one or more of the following conditions namely. (i) to (xi) xx xx xx (xii) that fares shall be charged in accordance with the approved fare table ; 59 (3) The following shall be conditions of every permit : (c) that any prohibition or restriction imposed and any maximum or minimum fares or freights fixed by notification made under Section 43 are observed in connection with any vehicle or vehicles to which the permit relates ; The Government has pursuant to Section 43 issued the following notifications :"In exercise of the powers conferred by clause (i) of sub-section (1) of Section 43 of the Motor Vehicles Act, 1939 (Central Act IV of 1939) and in suppression of the Notification of the Government of A. P. in Public Works and Transport Department No. 1184 dated the 11th August 1956, published at page 2026 of part I of the A. P. Gazette dated the 6th September 1956, the Governor of Andhra Pradesh hereby directs the State Transport Authority to fix the following maximum fares inclusive of the tax leviable under the Madras Motor Vehicles (Taxation of Passengers and Goods) Act 1952 (Madras Act XVI of 1952) for stage carriages in the territories of the State of Andhra Pradesh which immediately before the 1st November, 1956 were comprised in the State of Andhra..... " 6. In view of the directions given by the Government in the above notification the Regional Transport Authority called upon the Regional Transport Officers to notify the operators to collect the enhanced fares and accordingly the officers concerned compliance with those directions notified the operators. Once the provisions Sections 43 (1) (i) and 44 (4) are complied with Section 59 (3) (c) comes into play and it has the effect of incorporating the maximum fares as notified including the tax leviable, as a condition of the permit. This being the legal position we do not think there is any justification for the contention that the collection by the operators of the enhanced fares without the table of fares being amended would entail the cancellation of the permits. 7. The decision of the Madhya Pradesh case is clearly distinguishable as it does not appear that any notification was issued under Section 43 as was done in this case nor do we find that the provisions of Section 59 (3) (c) have been referred to or considered. At page 111, (AIR 1962 MP 108 ), Dixit, C J., noted the submissions of the Additional Government pleader that instructions would be issued to all Regional Transport Authorities for a revision of fare tables under Section 43 of the Motor Vehicles Act so as to enable the operators to recover the tax amount from the passengers as extra fare, which he observed was a step in the right direction. These observations show that there was no notification under Section 43 nor any instructions given to the Regional Transport Officers by the Regional Transport Authority. In the circumstances that case is not an authority for the proposition contended by the learned Advocate for the Appellant. 8.
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0
### Explanation:
This very contention was raised before the High Court which disagreeing with the Madhya Pradesh case cited above held that the directions issued by the Government in G. O. Ms. No. 1077 of 7th May 1959 pursuant to which the Regional Transport Authority by its proceedings dated 12th May 1959 called upon the Regional Transport Officers to notify the operators and which the said officers had notified authorising them to collect the enhanced fares was sufficient authorisation for them to collect the enhanced fares as if the fare tables had been amended6. In view of the directions given by the Government in the above notification the Regional Transport Authority called upon the Regional Transport Officers to notify the operators to collect the enhanced fares and accordingly the officers concerned compliance with those directions notified the operators. Once the provisions Sections 43 (1) (i) and 44 (4) are complied with Section 59 (3) (c) comes into play and it has the effect of incorporating the maximum fares as notified including the tax leviable, as a condition of the permit. This being the legal position we do not think there is any justification for the contention that the collection by the operators of the enhanced fares without the table of fares being amended would entail the cancellation of the permits7. The decision of the Madhya Pradesh case is clearly distinguishable as it does not appear that any notification was issued under Section 43 as was done in this case nor do we find that the provisions of Section 59 (3) (c) have been referred to or considered. At page 111, (AIR 1962 MP 108 ), Dixit, C J., noted the submissions of the Additional Government pleader that instructions would be issued to all Regional Transport Authorities for a revision of fare tables under Section 43 of the Motor Vehicles Act so as to enable the operators to recover the tax amount from the passengers as extra fare, which he observed was a step in the right direction. These observations show that there was no notification under Section 43 nor any instructions given to the Regional Transport Officers by the Regional Transport Authority. In the circumstances that case is not an authority for the proposition contended by the learned Advocate for the Appellant.
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P. H. Divecha And Another Vs. Commissioner Of Income-Tax,Bombay I | be called income, profits or gains or even income from "other sources. The payments can be regarded only as ad hoc payments. 16. Even if it be not regarded as a payment for loss of capital it cannot be regarded as payment for any services rendered or likely to be rendered. The services in the past were amply remunerated. The payment does not contemplate that the agreement in the past had not been sufficiently remunerative to the Firm. It does not pretend to pay them for past service. The minutes do not show that any service in the future was expected from these appellants. What remained to be done was to wind up the business with regard to the agreement of 1938 itself. For this purpose, the Company agreed to give all facilities to the Firm in respect of easily saleable articles and to take over those which required a longer duration to sell. The only service, if service it can be called, was that the Firm was to hand over to the Company a list of customers and the supplies made to them during the past six months. It cannot be said that for this service the payment was made. The payment was thus not related to any service either in the past or in the future. Both sides have relied upon cases in which certain payments were held to be taxable or not taxable according as the facts in those cases suggested that the payment was for some services in the past or future or was entirely gratuitous. No useful purpose will be served by going over such cases because the facts of two very dissimilar cases lead to different principles. We do not, therefore, refer to the cases of professional cricketers for whom benefit matches are held or who receive payments for outstanding performance with the bat or ball or cases of persons working in honorary capacity or in little-paid jobs who on retirement receive some payment in token of their worth. Those cases stand on their own facts. The safest method is to take the facts of the case in hand and to consider for what was the payment received and incidentally for what was the payment made. Judged from this angle it is quite clear that the payment here was not made for any service. In fact it was not made to the firm but to the three partners individually. It was not related to any service that was likely to be performed in the future even though it was described as remuneration additional to the ordinary profits of trading. It was in no sense a remuneration. It was in fact a payment made out of regard for the qualities of the three partners of the firm who were long associated with the Company to its profit and who had built up a vast net-work of sales organisation of which the Company would have obtained benefit when it entered on the business of selling for itself. This payment need not be given a particular name. It need not be called a testimonial as to which Rowlatt J. said in Chibbet v. Joseph Robinson and Sons, (1924) 9 Tax Cas 49 that there is no magic in that name. It need not be called a solatium, a term devised by Rowlatt J. in the same case and applied by the Privy Council in Shaw, Wallaces case, 59 Ind App 206 : (AIR 1932 PC 138 ) but which this Court did not adopt in Senairam Doongarmalls case, (1961) 42 ITR 392 : (AIR 1961 SC 1579 ).Without attempting to give it a name we are satisfied that the payment was in token of appreciation and was not related to any business done or to loss of profits and it was not recompense for services past or future. It was a payment out of gratitude and must be regarded as a payment which does not bear the character of income, profits or gains which alone are taxable under the Income-tax Act. In our opinion, the High Court, with all due respect, was in error in holding that this amount was taxable. The answer to the first question must therefore be against the Department. 17. The next question is whether the receipt can be described under S. 4(3) (vii) as of a casual and non-recurring nature and not by way of addition to the remuneration of an employee. The assessees were not "employees of the Company and were not in receipt of remuneration. After the termination of the agreement they were to work as regular lamp dealers if they cared. There was no compulsion that they must sell electric lamps whether made by the Company or by other manufacturers. If they did, they were to receive commission as any other regular dealer. It is thus obvious that the latter part of S. 4(3) (vii) does not apply. The receipt may only be described as a receipt of a casual and non-recurring nature if it were income, profits or gains. We have already said that the fact that payment was spaced over three years did not make this a recurring receipt. In our judgment the receipt would be saved by S. 4 (3) (vii) from being included in the total income in any event. But we are of opinion that not being income, profits or gains S. 4 (3) (vii) has no application. Our answer to the second question is that S. 4 (3) (vii) does not apply. 18. The third question need hardly detain us. It was not answered by the High Court Section 10(5A) of the Act deals with four categories of persons. The first three categories ex facie do not apply. The fourth category also does not apply as the appellants in their individual capacity were not holding "an agency and the Firm of which they were partners was also not an agent of the Company. The answer to that question must be against the Department. | 1[ds]11. The gist of the agreement, therefore was that the Firm was to have an exclusive territory for sale of Philips lamps and undertook to sell only Philips lamps in that territory. The agreement allowed the Firm compensation if Philips lamps were sold in the territory by the Company. There was no provision in the agreement how many lamps the Firm was to buy from the Company in a particular period and there was no condition that the Firm would be required to buy any specified quantity and/or quality. There was no agreement that the Firm was to Act as the agent of the Company. This was an agreement between principal and principal, the measure of the business depending upon how far the Firm was able to push the sales of Philips lamps in its own interest and in the interest of the Company. The agreement was to commence on July 1, 1938, and was terminable by a three months notice on either side on 30th June of any year. It is fair to infer that as long as the Company and the Firm found the arrangement profitable the agreement would have continued. By an annexure to the agreement, which was in the form of a letter, the terms of business between the Firm and the Company were laid down. This letter stated the commission payable to the Firm and the manner in which payments were to be made by the Firm. Sufficient reference to these terms has already been made by us in an earlier part of this judgment. This annexure was to be read as a part of the agreement. It was probably kept separate so that in case of need only the annexure might be altered without the trouble of executing a fresh agreementIf the payment was not received to compensate for a loss of profits of business the receipt in the hands of the appellant cannot properly be described as income, profits or gains as commonly understood. To constitute income, profits or gains, there must be a source from which the particular receipt has arisen, and a connection must exist between the quality of the receipt and the source. If the payment is by another person it must be found out why that payment has been made. It is not the motive of the person who pays that is relevant, More relevance attaches to the nature of the receipt in the hands of the person who receives it though in trying to find out the quality of the receipt one may have to examine the motive out of which the payment was made. It may also be stated as a general rule that the fact that the amount involved was large or that it was periodic in character have no decisive bearing upon the matter. A payment may even be described as pay, remuneration etc. but that does not determine its quality, though the name by which it has been called may be relevant in determining its true nature, because this gives an indication of how the person who paid the money and the person who received it viewed it in the first instance. The periodicity of the payment does not make the payment a recurring income because periodicity may be the result of convenience and not necessarily the result of the establishment of a source expected to be productive over a certain periodThe agreement of 1938 did not state that on the termination of the agreement in the way provided there compensation was payable to the Firm. For temporary suspension of supplies no compensation was payable. These terms of the agreement show that though the agreement was to run its course as long as it proved profitable to the parties, at least the firm was not entitled to be compensated either for a temporary suspension of the benefits under the agreement or a complete termination of those benefits. The payment cannot, therefore, on the terms of the agreement be connected with loss of estimated profits. It was said a long time ago in the well-known case of Glenboig Union Fireclay Co. Ltd v. Commr. of Inland revenue, (1922) 8 Tax Cas 427 that there is no relation between the measure that is used for the purpose of calculating a particular result and the quality of the figure that is arrived at by means of application of that test. Here, the amount is large but there is nothing to show that it was even an adequate measure of the profits that were expected to be made during the three years in which the amount was to be paid. Even if it had been there would have been no inference in law. But in the absence of any proof that this was the likely profit it is difficult to say that the payment replaced those profits15. The agreement in our case was not an agreement for the purchase of bulbs or lamps. It mentioned no quantity or quality or price. It only secured to the firm a right to exclusive purchase for sale in an exclusive territory. In other words, it created a monopoly right of purchase for and a monopoly right of sale in a certain territory. The agreement secured to the firm an advantage of an enduring nature. No doubt, the agreement was terminable in any year on three months notice but it would have lasted as long as it was profitable to the contracting parties and the indications were that it was to subsist for some time. It was an agreement which need not have continued but which was likely to continue. The question, therefore, is whether by termination of the agreement the firm lost an advantage or merely lost the right to obtain certain stock-in-trade for which they had bargained. If it was first then the receipt, if connected with that loss, was a capital receipt and if the latter it was a replacement of the profits which were likely to ensue from the trading agreement. In our opinion, it is impossible to describe this agreement as a trading agreement. It can only be described as an agreement which constituted a source and a monopoly, and which gave an enduring advantage to a trader in his trade. The loss of such an agreement must be regarded as falling on the capital asset of the person affected and not in the course of his ordinary trading. If the agreement had been breached prematurely the damages would not have been calculated on the basis of outstanding contracts only but on the basis of an advantage lost. Indeed, the agreement itself contemplated in some of its terms other contracts under which the supplies were to be made and refers in terms to the cancellation of "orders and "contracts. This shows that in addition to this agreement there were to be trading contracts in the shape of orders for bulbs which the Firm would have placed with the Company in the ordinary course of their business. The agreement said that even on the termination of those contracts and orders no compensation was payable. It is difficult to see how this payment can be related to profits or how it can be called income, profits or gains or even income from "other sources. The payments can be regarded only as ad hoc payments16. Even if it be not regarded as a payment for loss of capital it cannot be regarded as payment for any services rendered or likely to be rendered. The services in the past were amply remunerated. The payment does not contemplate that the agreement in the past had not been sufficiently remunerative to the Firm. It does not pretend to pay them for past service. The minutes do not show that any service in the future was expected from these appellants. What remained to be done was to wind up the business with regard to the agreement of 1938 itself. For this purpose, the Company agreed to give all facilities to the Firm in respect of easily saleable articles and to take over those which required a longer duration to sell. The only service, if service it can be called, was that the Firm was to hand over to the Company a list of customers and the supplies made to them during the past six months. It cannot be said that for this service the payment was made. The payment was thus not related to any service either in the past or in the future. Both sides have relied upon cases in which certain payments were held to be taxable or not taxable according as the facts in those cases suggested that the payment was for some services in the past or future or was entirely gratuitous. No useful purpose will be served by going over such cases because the facts of two very dissimilar cases lead to different principles. We do not, therefore, refer to the cases of professional cricketers for whom benefit matches are held or who receive payments for outstanding performance with the bat or ball or cases of persons working in honorary capacity or in little-paid jobs who on retirement receive some payment in token of their worth. Those cases stand on their own facts. The safest method is to take the facts of the case in hand and to consider for what was the payment received and incidentally for what was the payment made. Judged from this angle it is quite clear that the payment here was not made for any service. In fact it was not made to the firm but to the three partners individually. It was not related to any service that was likely to be performed in the future even though it was described as remuneration additional to the ordinary profits of trading. It was in no sense a remuneration. It was in fact a payment made out of regard for the qualities of the three partners of the firm who were long associated with the Company to its profit and who had built up a vast net-work of sales organisation of which the Company would have obtained benefit when it entered on the business of selling for itself. This payment need not be given a particular name. It need not be called a testimonial as to which Rowlatt J. said in Chibbet v. Joseph Robinson and Sons, (1924) 9 Tax Cas 49 that there is no magic in that name. It need not be called a solatium, a term devised by Rowlatt J. in the same case and applied by the Privy Council in Shaw, Wallaces case, 59 Ind App 206 : (AIR 1932 PC 138 ) but which this Court did not adopt in Senairam Doongarmalls case, (1961) 42 ITR 392 : (AIR 1961 SC 1579 ).Without attempting to give it a name we are satisfied that the payment was in token of appreciation and was not related to any business done or to loss of profits and it was not recompense for services past or future. It was a payment out of gratitude and must be regarded as a payment which does not bear the character of income, profits or gains which alone are taxable under the Income-tax Act. In our opinion, the High Court, with all due respect, was in error in holding that this amount was taxable. The answer to the first question must therefore be against the DepartmentThe assessees were not "employees of the Company and were not in receipt of remuneration. After the termination of the agreement they were to work as regular lamp dealers if they cared. There was no compulsion that they must sell electric lamps whether made by the Company or by other manufacturers. If they did, they were to receive commission as any other regular dealer. It is thus obvious that the latter part of S. 4(3) (vii) does not apply. The receipt may only be described as a receipt of a casual and non-recurring nature if it were income, profits or gains. We have already said that the fact that payment was spaced over three years did not make this a recurring receipt. In our judgment the receipt would be saved by S. 4 (3) (vii) from being included in the total income in any event. But we are of opinion that not being income, profits or gains S. 4 (3) (vii) has no application. Our answer to the second question is that S. 4 (3) (vii) does not apply18. The third question need hardly detain us. It was not answered by the High Court Section 10(5A) of the Act deals with four categories of persons. The first three categories ex facie do not apply. The fourth category also does not apply as the appellants in their individual capacity were not holding "an agency and the Firm of which they were partners was also not an agent of the Company. The answer to that question must be against the DepartmentIn that case the agreement was different. No doubt by that agreement also a territory was reserved and a monopoly was created but that agreement was to last for four years and was prematurely terminated at the end of two years. Under that agreement a minimum quantity of chemicals had to be bought and if the buyers failed to exercise their option to take up the minimum quantity in any one year, the contract itself was to be considered as terminated without any further option. The assessees in that case were industrial chemists till 1933 and by the agreement had offered to buy agricultural chemicals and had set up, as a result of the agreement, a special organisation for selling agricultural chemicals. The amount of compensation on the premature termination of the agreement was arrived at after negotiations and the sum represented profits of the lost business and not the price for the purchase of the contract, It was observed by Lawrence L. J. that the business of the assessee continued unaffected and that if a trading contract made in the ordinary course of business, though covering a new field, was prematurely terminated and compensation was paid for that premature termination, it must be considered to be in replacement of profits and not capital. | 1 | 6,696 | 2,564 | ### 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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be called income, profits or gains or even income from "other sources. The payments can be regarded only as ad hoc payments. 16. Even if it be not regarded as a payment for loss of capital it cannot be regarded as payment for any services rendered or likely to be rendered. The services in the past were amply remunerated. The payment does not contemplate that the agreement in the past had not been sufficiently remunerative to the Firm. It does not pretend to pay them for past service. The minutes do not show that any service in the future was expected from these appellants. What remained to be done was to wind up the business with regard to the agreement of 1938 itself. For this purpose, the Company agreed to give all facilities to the Firm in respect of easily saleable articles and to take over those which required a longer duration to sell. The only service, if service it can be called, was that the Firm was to hand over to the Company a list of customers and the supplies made to them during the past six months. It cannot be said that for this service the payment was made. The payment was thus not related to any service either in the past or in the future. Both sides have relied upon cases in which certain payments were held to be taxable or not taxable according as the facts in those cases suggested that the payment was for some services in the past or future or was entirely gratuitous. No useful purpose will be served by going over such cases because the facts of two very dissimilar cases lead to different principles. We do not, therefore, refer to the cases of professional cricketers for whom benefit matches are held or who receive payments for outstanding performance with the bat or ball or cases of persons working in honorary capacity or in little-paid jobs who on retirement receive some payment in token of their worth. Those cases stand on their own facts. The safest method is to take the facts of the case in hand and to consider for what was the payment received and incidentally for what was the payment made. Judged from this angle it is quite clear that the payment here was not made for any service. In fact it was not made to the firm but to the three partners individually. It was not related to any service that was likely to be performed in the future even though it was described as remuneration additional to the ordinary profits of trading. It was in no sense a remuneration. It was in fact a payment made out of regard for the qualities of the three partners of the firm who were long associated with the Company to its profit and who had built up a vast net-work of sales organisation of which the Company would have obtained benefit when it entered on the business of selling for itself. This payment need not be given a particular name. It need not be called a testimonial as to which Rowlatt J. said in Chibbet v. Joseph Robinson and Sons, (1924) 9 Tax Cas 49 that there is no magic in that name. It need not be called a solatium, a term devised by Rowlatt J. in the same case and applied by the Privy Council in Shaw, Wallaces case, 59 Ind App 206 : (AIR 1932 PC 138 ) but which this Court did not adopt in Senairam Doongarmalls case, (1961) 42 ITR 392 : (AIR 1961 SC 1579 ).Without attempting to give it a name we are satisfied that the payment was in token of appreciation and was not related to any business done or to loss of profits and it was not recompense for services past or future. It was a payment out of gratitude and must be regarded as a payment which does not bear the character of income, profits or gains which alone are taxable under the Income-tax Act. In our opinion, the High Court, with all due respect, was in error in holding that this amount was taxable. The answer to the first question must therefore be against the Department. 17. The next question is whether the receipt can be described under S. 4(3) (vii) as of a casual and non-recurring nature and not by way of addition to the remuneration of an employee. The assessees were not "employees of the Company and were not in receipt of remuneration. After the termination of the agreement they were to work as regular lamp dealers if they cared. There was no compulsion that they must sell electric lamps whether made by the Company or by other manufacturers. If they did, they were to receive commission as any other regular dealer. It is thus obvious that the latter part of S. 4(3) (vii) does not apply. The receipt may only be described as a receipt of a casual and non-recurring nature if it were income, profits or gains. We have already said that the fact that payment was spaced over three years did not make this a recurring receipt. In our judgment the receipt would be saved by S. 4 (3) (vii) from being included in the total income in any event. But we are of opinion that not being income, profits or gains S. 4 (3) (vii) has no application. Our answer to the second question is that S. 4 (3) (vii) does not apply. 18. The third question need hardly detain us. It was not answered by the High Court Section 10(5A) of the Act deals with four categories of persons. The first three categories ex facie do not apply. The fourth category also does not apply as the appellants in their individual capacity were not holding "an agency and the Firm of which they were partners was also not an agent of the Company. The answer to that question must be against the Department.
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made to them during the past six months. It cannot be said that for this service the payment was made. The payment was thus not related to any service either in the past or in the future. Both sides have relied upon cases in which certain payments were held to be taxable or not taxable according as the facts in those cases suggested that the payment was for some services in the past or future or was entirely gratuitous. No useful purpose will be served by going over such cases because the facts of two very dissimilar cases lead to different principles. We do not, therefore, refer to the cases of professional cricketers for whom benefit matches are held or who receive payments for outstanding performance with the bat or ball or cases of persons working in honorary capacity or in little-paid jobs who on retirement receive some payment in token of their worth. Those cases stand on their own facts. The safest method is to take the facts of the case in hand and to consider for what was the payment received and incidentally for what was the payment made. Judged from this angle it is quite clear that the payment here was not made for any service. In fact it was not made to the firm but to the three partners individually. It was not related to any service that was likely to be performed in the future even though it was described as remuneration additional to the ordinary profits of trading. It was in no sense a remuneration. It was in fact a payment made out of regard for the qualities of the three partners of the firm who were long associated with the Company to its profit and who had built up a vast net-work of sales organisation of which the Company would have obtained benefit when it entered on the business of selling for itself. This payment need not be given a particular name. It need not be called a testimonial as to which Rowlatt J. said in Chibbet v. Joseph Robinson and Sons, (1924) 9 Tax Cas 49 that there is no magic in that name. It need not be called a solatium, a term devised by Rowlatt J. in the same case and applied by the Privy Council in Shaw, Wallaces case, 59 Ind App 206 : (AIR 1932 PC 138 ) but which this Court did not adopt in Senairam Doongarmalls case, (1961) 42 ITR 392 : (AIR 1961 SC 1579 ).Without attempting to give it a name we are satisfied that the payment was in token of appreciation and was not related to any business done or to loss of profits and it was not recompense for services past or future. It was a payment out of gratitude and must be regarded as a payment which does not bear the character of income, profits or gains which alone are taxable under the Income-tax Act. In our opinion, the High Court, with all due respect, was in error in holding that this amount was taxable. The answer to the first question must therefore be against the DepartmentThe assessees were not "employees of the Company and were not in receipt of remuneration. After the termination of the agreement they were to work as regular lamp dealers if they cared. There was no compulsion that they must sell electric lamps whether made by the Company or by other manufacturers. If they did, they were to receive commission as any other regular dealer. It is thus obvious that the latter part of S. 4(3) (vii) does not apply. The receipt may only be described as a receipt of a casual and non-recurring nature if it were income, profits or gains. We have already said that the fact that payment was spaced over three years did not make this a recurring receipt. In our judgment the receipt would be saved by S. 4 (3) (vii) from being included in the total income in any event. But we are of opinion that not being income, profits or gains S. 4 (3) (vii) has no application. Our answer to the second question is that S. 4 (3) (vii) does not apply18. The third question need hardly detain us. It was not answered by the High Court Section 10(5A) of the Act deals with four categories of persons. The first three categories ex facie do not apply. The fourth category also does not apply as the appellants in their individual capacity were not holding "an agency and the Firm of which they were partners was also not an agent of the Company. The answer to that question must be against the DepartmentIn that case the agreement was different. No doubt by that agreement also a territory was reserved and a monopoly was created but that agreement was to last for four years and was prematurely terminated at the end of two years. Under that agreement a minimum quantity of chemicals had to be bought and if the buyers failed to exercise their option to take up the minimum quantity in any one year, the contract itself was to be considered as terminated without any further option. The assessees in that case were industrial chemists till 1933 and by the agreement had offered to buy agricultural chemicals and had set up, as a result of the agreement, a special organisation for selling agricultural chemicals. The amount of compensation on the premature termination of the agreement was arrived at after negotiations and the sum represented profits of the lost business and not the price for the purchase of the contract, It was observed by Lawrence L. J. that the business of the assessee continued unaffected and that if a trading contract made in the ordinary course of business, though covering a new field, was prematurely terminated and compensation was paid for that premature termination, it must be considered to be in replacement of profits and not capital.
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Jagadguru Gurushiddaswami Vs. Dakshina Maharashtra Digambarjain Sabha | would be to apply for execution of the decree in the previous suit. This difficulty, however, is not insuperable, as under section 47 of the Civil Procedure Code the court is empowered to treat a suit as an execution proceeding, when there is no question of limitation or jurisdiction standing in the way of the plaintiff. In our opinion, however, the contention as put forward by the learned Attorney-General cannot succeed. It may be assumed as a proposition of law that a sub-lessee would be bound by a decree for possession obtained by the lessor against the lessee, no matter whether the sub-lease was created before or after the suit, provided the eviction is based on a ground which determines the sublease also(1). But there seem to be two insuperable difficulties in the way of applying that principle to the facts of the present case. In the first place, the suit of 1932 was not by a landlord or ex-landlord against his tenant for evicting him from the leasehold premises basing his claim on the ground of deter- mination of tenancy. The Mahant, who created the permanent lease in 1887, might not have been able to derogate from his grant and the lease might be taken to be valid so long as the alienating Mahant lived. As soon as he died, it was open to his successor to repudiate the lease and recover possession of the property on the ground that the alienation was not binding on the endowment. In the present case the immediate successor of the alienating Mahant consented to the lessees continuing in possession of the property and thereby he might be treated as creating an interest in the lessee commensurate with the period of his lifetime or the tenure of his office. After his death, however, his successor did not accept any rent from the lessee or otherwise treated the lease as subsisting and in 1932 he brought the suit for recovery of possession of the property against the successors of the original lessee on the footing that they did not acquire any title by the grant which, being unsupported by legal necessity, was not binding on the Math. This was not a suit by a landlord against his tenant; it was a suit by the holder or manager of the Math to recover possession of Math property which was improperly alienated by his predecessor on the ground that the defendant became a trespasser as soon as the previous Mahant died and the plaintiff was entitled to recover possession on proof of his title.5. Quite apart from this, the other difficulty is equally formidable for it does not appear to us that the (1) Vide Sailendra v. Bijan, 49 C.W.N. i33; Yusuff v. Jyotish Chandra, I.L.R. 59 cal. 739 . defendant Jain Sabha was at all a sub-lessee under Bharamappa or his heirs. We have gone carefully through the document executed by Bharamappa in, favour of the Jain Sabha. Both in form and in substance it is a deed of gift and not a sub-lease. The gift, it seems, Was made for a specific purpose, namely, for construction of a school building upon the site which was to be used for the education of the boys and girls of the Jain community, and it was for this reason that the deed provided that on the contingency of the school being removed from the site or its ceasing to exist, the land would revert to the donor. The attaching of a condition like that to a deed of gift could not, in our opinion, convert it into a sublease. It is clear, therefore, that the suit of 1932 was not a suit for eviction instituted by a lessor against his lessee, nor could the present defendant be regarded as a sub-lessee under the defendants in the earlier suit. It may be unfortunate that by reason of a pure mis-description, the earlier suit was dismissed against the Jain Sabha, but that is altogether irrelevant for our present purpose. In our opinion, the first contention of the Attorney General must fail.6. As regards the other ground raised by the Attorney- General, we are of opinion that the point is without any substance, and section 10 of the Indian Limitation Act is of no assistance to the plaintiff in the present it case. In order that a suit may have the benefit of section 10, it must be a suit against a person in whom the property has become vested in trust for any specific purpose or against his legal representatives or assigns, not being assigns for valuable consideration. It may be taken that the word "assign" is sufficiently wide to cover a lessee as well; but the difficulty is, that as the lease was for valuable consideration, the case would come within the terms of the exception laid down in section 10 and consequently the defendant would not be precluded by reason of the fact that the property was to his knowledge a trust property, from relying on the provisions of the statute which limit the time within which such suits must be brought. The Attomey-General contended rather strenuously that the transfer here was not for valuable consideration inasmuch as the rent reserved for a large tract of land which had immense potential value was Rs. 50 only for the first six years and then again it was to be reduced to Rs. 25 which would continue all through. We desire to point out that the expression " valuable consideration " has a well known connotation in law and it is not synonymous with "adequate consideration". It may be that judged by the standard of modern times, the rent reserved was small, but as has been found by both the courts below the consideration was not in any sense illusory having regard to the state of affairs prevailing at the time when the transaction took place. This is a concurrent finding of fact which binds us in this appeal. | 0[ds]Both the courts below have held that a suit of this description is governed by article 134-B of the Limitation Act and the period of limitation is 12 years computed from the date when the previous Mahant died. The plaintiffs predecessor admittedly died in 1920 and the suit was brought more than 12 years after that and hence it was time-barred. To get round the plea of limitation, the learned Attorney-General, who appeared in support of the appeal, has put forward a two-fold contention. It is argued in the first place that the decree for ejectment, which was passed in favour of the plaintiff and against the heirs of Bharamappa in the earlier suit of 1932, was binding on the present defendant on the principle that a decree against a lessee binds the sub-lessee as well. The defendant, therefore, was not competent to resist the plaintiffs claim for possession which was already allowed in the previous suit. The other ground urged is, that limitation is saved in this case by virtue of the provision of section 10 of the Indian Limitationfar as the first ground is concerned, it may be stated at the outset that even if the appellants contention is right, the present suit would be barred under section 47 of the Civil Procedure Code and the proper remedy of the plaintiff would be to apply for execution of the decree in the previous suit. This difficulty, however, is not insuperable, as under section 47 of the Civil Procedure Code the court is empowered to treat a suit as an execution proceeding, when there is no question of limitation or jurisdiction standing in the way of the plaintiff. In our opinion, however, the contention as put forward by the learned Attorney-General cannot succeed. It may be assumed as a proposition of law that a sub-lessee would be bound by a decree for possession obtained by the lessor against the lessee, no matter whether the sub-lease was created before or after the suit, provided the eviction is based on a ground which determines the sublease also(1). But there seem to be two insuperable difficulties in the way of applying that principle to the facts of the present case. In the first place, the suit of 1932 was not by a landlord or ex-landlord against his tenant for evicting him from the leasehold premises basing his claim on the ground of deter- mination of tenancy. The Mahant, who created the permanent lease in 1887, might not have been able to derogate from his grant and the lease might be taken to be valid so long as the alienating Mahant lived. As soon as he died, it was open to his successor to repudiate the lease and recover possession of the property on the ground that the alienation was not binding on the endowment. In the present case the immediate successor of the alienating Mahant consented to the lessees continuing in possession of the property and thereby he might be treated as creating an interest in the lessee commensurate with the period of his lifetime or the tenure of his office. After his death, however, his successor did not accept any rent from the lessee or otherwise treated the lease as subsisting and in 1932 he brought the suit for recovery of possession of the property against the successors of the original lessee on the footing that they did not acquire any title by the grant which, being unsupported by legal necessity, was not binding on the Math. This was not a suit by a landlord against his tenant; it was a suit by the holder or manager of the Math to recover possession of Math property which was improperly alienated by his predecessor on the ground that the defendant became a trespasser as soon as the previous Mahant died and the plaintiff was entitled to recover possession on proof of hisis clear, therefore, that the suit of 1932 was not a suit for eviction instituted by a lessor against his lessee, nor could the present defendant be regarded as a sub-lessee under the defendants in the earlier suit. It may be unfortunate that by reason of a pure mis-description, the earlier suit was dismissed against the Jain Sabha, but that is altogether irrelevant for our present purpose. In our opinion, the first contention of the Attorney General mustregards the other ground raised by the Attorney- General, we are of opinion that the point is without any substance, and section 10 of the Indian Limitation Act is of no assistance to the plaintiff in the present it case. In order that a suit may have the benefit of section 10, it must be a suit against a person in whom the property has become vested in trust for any specific purpose or against his legal representatives or assigns, not being assigns for valuable consideration. It may be taken that the word "assign" is sufficiently wide to cover a lessee as well; but the difficulty is, that as the lease was for valuable consideration, the case would come within the terms of the exception laid down in section 10 and consequently the defendant would not be precluded by reason of the fact that the property was to his knowledge a trust property, from relying on the provisions of the statute which limit the time within which such suits must be brought. The Attomey-General contended rather strenuously that the transfer here was not for valuable consideration inasmuch as the rent reserved for a large tract of land which had immense potential value was Rs. 50 only for the first six years and then again it was to be reduced to Rs. 25 which would continue all through. We desire to point out that the expression " valuable consideration " has a well known connotation in law and it is not synonymous with "adequate consideration". It may be that judged by the standard of modern times, the rent reserved was small, but as has been found by both the courts below the consideration was not in any sense illusory having regard to the state of affairs prevailing at the time when the transaction took place. This is a concurrent finding of fact which binds us in this appeal. | 0 | 2,203 | 1,124 | ### 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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would be to apply for execution of the decree in the previous suit. This difficulty, however, is not insuperable, as under section 47 of the Civil Procedure Code the court is empowered to treat a suit as an execution proceeding, when there is no question of limitation or jurisdiction standing in the way of the plaintiff. In our opinion, however, the contention as put forward by the learned Attorney-General cannot succeed. It may be assumed as a proposition of law that a sub-lessee would be bound by a decree for possession obtained by the lessor against the lessee, no matter whether the sub-lease was created before or after the suit, provided the eviction is based on a ground which determines the sublease also(1). But there seem to be two insuperable difficulties in the way of applying that principle to the facts of the present case. In the first place, the suit of 1932 was not by a landlord or ex-landlord against his tenant for evicting him from the leasehold premises basing his claim on the ground of deter- mination of tenancy. The Mahant, who created the permanent lease in 1887, might not have been able to derogate from his grant and the lease might be taken to be valid so long as the alienating Mahant lived. As soon as he died, it was open to his successor to repudiate the lease and recover possession of the property on the ground that the alienation was not binding on the endowment. In the present case the immediate successor of the alienating Mahant consented to the lessees continuing in possession of the property and thereby he might be treated as creating an interest in the lessee commensurate with the period of his lifetime or the tenure of his office. After his death, however, his successor did not accept any rent from the lessee or otherwise treated the lease as subsisting and in 1932 he brought the suit for recovery of possession of the property against the successors of the original lessee on the footing that they did not acquire any title by the grant which, being unsupported by legal necessity, was not binding on the Math. This was not a suit by a landlord against his tenant; it was a suit by the holder or manager of the Math to recover possession of Math property which was improperly alienated by his predecessor on the ground that the defendant became a trespasser as soon as the previous Mahant died and the plaintiff was entitled to recover possession on proof of his title.5. Quite apart from this, the other difficulty is equally formidable for it does not appear to us that the (1) Vide Sailendra v. Bijan, 49 C.W.N. i33; Yusuff v. Jyotish Chandra, I.L.R. 59 cal. 739 . defendant Jain Sabha was at all a sub-lessee under Bharamappa or his heirs. We have gone carefully through the document executed by Bharamappa in, favour of the Jain Sabha. Both in form and in substance it is a deed of gift and not a sub-lease. The gift, it seems, Was made for a specific purpose, namely, for construction of a school building upon the site which was to be used for the education of the boys and girls of the Jain community, and it was for this reason that the deed provided that on the contingency of the school being removed from the site or its ceasing to exist, the land would revert to the donor. The attaching of a condition like that to a deed of gift could not, in our opinion, convert it into a sublease. It is clear, therefore, that the suit of 1932 was not a suit for eviction instituted by a lessor against his lessee, nor could the present defendant be regarded as a sub-lessee under the defendants in the earlier suit. It may be unfortunate that by reason of a pure mis-description, the earlier suit was dismissed against the Jain Sabha, but that is altogether irrelevant for our present purpose. In our opinion, the first contention of the Attorney General must fail.6. As regards the other ground raised by the Attorney- General, we are of opinion that the point is without any substance, and section 10 of the Indian Limitation Act is of no assistance to the plaintiff in the present it case. In order that a suit may have the benefit of section 10, it must be a suit against a person in whom the property has become vested in trust for any specific purpose or against his legal representatives or assigns, not being assigns for valuable consideration. It may be taken that the word "assign" is sufficiently wide to cover a lessee as well; but the difficulty is, that as the lease was for valuable consideration, the case would come within the terms of the exception laid down in section 10 and consequently the defendant would not be precluded by reason of the fact that the property was to his knowledge a trust property, from relying on the provisions of the statute which limit the time within which such suits must be brought. The Attomey-General contended rather strenuously that the transfer here was not for valuable consideration inasmuch as the rent reserved for a large tract of land which had immense potential value was Rs. 50 only for the first six years and then again it was to be reduced to Rs. 25 which would continue all through. We desire to point out that the expression " valuable consideration " has a well known connotation in law and it is not synonymous with "adequate consideration". It may be that judged by the standard of modern times, the rent reserved was small, but as has been found by both the courts below the consideration was not in any sense illusory having regard to the state of affairs prevailing at the time when the transaction took place. This is a concurrent finding of fact which binds us in this appeal.
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in 1920 and the suit was brought more than 12 years after that and hence it was time-barred. To get round the plea of limitation, the learned Attorney-General, who appeared in support of the appeal, has put forward a two-fold contention. It is argued in the first place that the decree for ejectment, which was passed in favour of the plaintiff and against the heirs of Bharamappa in the earlier suit of 1932, was binding on the present defendant on the principle that a decree against a lessee binds the sub-lessee as well. The defendant, therefore, was not competent to resist the plaintiffs claim for possession which was already allowed in the previous suit. The other ground urged is, that limitation is saved in this case by virtue of the provision of section 10 of the Indian Limitationfar as the first ground is concerned, it may be stated at the outset that even if the appellants contention is right, the present suit would be barred under section 47 of the Civil Procedure Code and the proper remedy of the plaintiff would be to apply for execution of the decree in the previous suit. This difficulty, however, is not insuperable, as under section 47 of the Civil Procedure Code the court is empowered to treat a suit as an execution proceeding, when there is no question of limitation or jurisdiction standing in the way of the plaintiff. In our opinion, however, the contention as put forward by the learned Attorney-General cannot succeed. It may be assumed as a proposition of law that a sub-lessee would be bound by a decree for possession obtained by the lessor against the lessee, no matter whether the sub-lease was created before or after the suit, provided the eviction is based on a ground which determines the sublease also(1). But there seem to be two insuperable difficulties in the way of applying that principle to the facts of the present case. In the first place, the suit of 1932 was not by a landlord or ex-landlord against his tenant for evicting him from the leasehold premises basing his claim on the ground of deter- mination of tenancy. The Mahant, who created the permanent lease in 1887, might not have been able to derogate from his grant and the lease might be taken to be valid so long as the alienating Mahant lived. As soon as he died, it was open to his successor to repudiate the lease and recover possession of the property on the ground that the alienation was not binding on the endowment. In the present case the immediate successor of the alienating Mahant consented to the lessees continuing in possession of the property and thereby he might be treated as creating an interest in the lessee commensurate with the period of his lifetime or the tenure of his office. After his death, however, his successor did not accept any rent from the lessee or otherwise treated the lease as subsisting and in 1932 he brought the suit for recovery of possession of the property against the successors of the original lessee on the footing that they did not acquire any title by the grant which, being unsupported by legal necessity, was not binding on the Math. This was not a suit by a landlord against his tenant; it was a suit by the holder or manager of the Math to recover possession of Math property which was improperly alienated by his predecessor on the ground that the defendant became a trespasser as soon as the previous Mahant died and the plaintiff was entitled to recover possession on proof of hisis clear, therefore, that the suit of 1932 was not a suit for eviction instituted by a lessor against his lessee, nor could the present defendant be regarded as a sub-lessee under the defendants in the earlier suit. It may be unfortunate that by reason of a pure mis-description, the earlier suit was dismissed against the Jain Sabha, but that is altogether irrelevant for our present purpose. In our opinion, the first contention of the Attorney General mustregards the other ground raised by the Attorney- General, we are of opinion that the point is without any substance, and section 10 of the Indian Limitation Act is of no assistance to the plaintiff in the present it case. In order that a suit may have the benefit of section 10, it must be a suit against a person in whom the property has become vested in trust for any specific purpose or against his legal representatives or assigns, not being assigns for valuable consideration. It may be taken that the word "assign" is sufficiently wide to cover a lessee as well; but the difficulty is, that as the lease was for valuable consideration, the case would come within the terms of the exception laid down in section 10 and consequently the defendant would not be precluded by reason of the fact that the property was to his knowledge a trust property, from relying on the provisions of the statute which limit the time within which such suits must be brought. The Attomey-General contended rather strenuously that the transfer here was not for valuable consideration inasmuch as the rent reserved for a large tract of land which had immense potential value was Rs. 50 only for the first six years and then again it was to be reduced to Rs. 25 which would continue all through. We desire to point out that the expression " valuable consideration " has a well known connotation in law and it is not synonymous with "adequate consideration". It may be that judged by the standard of modern times, the rent reserved was small, but as has been found by both the courts below the consideration was not in any sense illusory having regard to the state of affairs prevailing at the time when the transaction took place. This is a concurrent finding of fact which binds us in this appeal.
|
M/S.Tashi Delek Gaming Solutions Ltd&Anr Vs. State Of Karnataka | dispute must fall within one or the other category specified in clauses (a), (b) and (c). 49. In State of Karnataka vs. Union of India (1977) 4 SCC 608 ), this Court observed: "It has to be remembered that Article 131 is traceable to Section 204 of the Government of India Act. The jurisdiction conferred by it thus originated in what was part of the federal structure set up by the Government of India Act, 1935. It is a remnant of the federalims found in that Act. It should, therefore, be widely and generously interpreted for that reason too so as to the advance the intended remedy. It can be invoked, in my opinion, whenever a State and other States or the Union differ on a question of interpretation of the Constitution so that a decision of it will affect the scope or exercise of governmental powers which are attributes of a State. If makes no difference to the maintainability of the action if the powers of the State, which are Executive Legislative, and Judicial are exercised through particular individuals as they necessarily must be. It is true that a criminal act committed by a Minister is no part of his official duties. But, if any of the organs of the State claim exclusive power to take cognizance of it, the State, as such, becomes interested in the dispute about the legal competence or extent of powers of one of its organs which may emerge". 50. Yet again in Union of India vs. State of Rajasthan (1984) 4 SCC 238 ), it was observed: "On a careful consideration of the whole matter in the light of the decisions of this Court referred to above, we feel that Article 131 of the Constitution is attracted only when a dispute arises between or amongst the States and the Union in the context of the constitutional relationship that exists between them and the powers, rights, duties, immunities, liabilities, disabilities etc. flowing therefrom. Any dispute which may arise between a State in the capacity of an employer in a factory, a manufacturer of goods subject to excise duty, a holder of a permit to run a stage carriage, a trader or businessman carrying on business not incidental to the ordinary functions of Government a consumer of railway services etc. like any other private party on the one hand and the Union of India on the other cannot be construed as a dispute arising between the State and the Union in discharge of their respective executive powers attracting Article 131 of the Constitution. It could never have been the intention of the framers of the Constitution that any ordinary dispute of this nature would have to be decided exclusively by the Supreme Court. It is well to remember that the constitutional proposals of the Sapru Committee advocated the strengthening of the position of the Federal Court in India and widening its jurisdiction on the original side so that the Federal Court could act as an interpreter and guardian of the Constitution and as a tribunal for the determination of the disputes between the constituent units of the Federation. The Joint Committee on Indian Constitutional Reforms was also of opinion that the object of the conferring exclusive original jurisdiction on the Federation Court was that the disputes of the kind specified between the Federation and the Provinces as the constituent units of the Federation should not be left to be decided by courts of law of a particular unit but be adjudicated upon only by the highest tribunal in the land which would be beyond the influence of any one constituent unit. The Special Committee consisting of Sriyuts S. Varadachariar, Alladi Krishnaswami Ayyar, B.L. Mitter, K.M. Munshi and B.N. Rau appointed by the Constituent Assembly to consider and report on the constitution and powers of the Supreme Court suggested "that the Supreme Court, like the Federal Court under the 1935 Constitution, would be the best available forum for the adjudication of all disputes between the Union and a unit and between one unit and another and proposed that the court should have an exclusive original jurisdiction in such disputes". (Vide The Framing of Indias Constitution - A study by Shri B. Shiva Rao at p.483). Considered in the light of the foregoing the conclusion becomes inevitable that disputes of the nature involved in this case could not have been in the contemplation of the framers of the Constitution when they adopted Article 131 of the Constitution." Conclusion: 51. The Division Bench of the High Court accepted the position that the Appellants herein are statutory agents but it evidently failed to take into consideration the status of the Appellants vis-a-vis their contractual rights and obligations with their principal coupled with their individual rights to maintainable their writ petitions in proper perspective. It is no doubt true that had the State of Sikkim or the State of Meghalaya intended to sue the State of Karnataka independently; in terms of Article 131 of the Constitution of India the only forum where the dispute between them could have been resolved is this Court alone but when such a lis is brought by the State jointly with their who had also independent cause of action and had a legal right to maintain writ application questioning the legality and/ or validity of the said notification issued by the State, a suit in terms of Article 131 of the Constitution of India would not have been maintainable. 52. The Appellants herein were not busy bodies. They had an interest in the subject-matter of the writ petition. They were, thus, not merely strangers having no right whatsoever in the matter. 53. It has not been contended, nor could it be contended that the Appellants are mere smoke screens of the States of Sikkim and Meghalaya. In absence of such a plea and in view of the fact that the Appellants here not been held to be mere strangers without having any legal right, we | 1[ds]22. The Appellants herein were appointed as agents of the State, which were governed by contract, in terms whereof, they had invested a huge amount. If the statements made in the writ petitions to which we have adverted to hereinbefore are correct, in the event the impugned notification is implemented the Appellants would not only loose a huge amount of money which they have invested but also would be liable to pay compensation to a large number of work force appointed by them in view of the fact that they would have to close their business. The Appellants are the agents coupled with interest. Such agencies are contemplated under the laws of contract. The Act also postulates that in the event an agent violates the notification issued by the State, he would face the penal consequences laid down therein. The notification has the force of law. In the aforementioned backdrop, the question which arises for consideration is as to whether the Appellants herein had any independent right to question the validity of the said notification.23. The learned Single Judge, as noticed hereinbefore, held that they did not have any such right. On the other hand, the Division Bench was of the opinion :"....May be, the appellants also got adversely affected with the prohibition imposed by the State of Karnataka but it is only incidental because they are the agents of the State of Sikkim and can have their rights only through their principal....."24. We cannot subscribe to the said view.The second part of the said provision does not envisage a situation where the right of an agent is protected in terms of Section 202 of the Contract Act. We have noticed hereinbefore that Section 4(c) of the Act envisages appointment of agents, which empowers the State Government to sell the tickets either itself or through distributors or selling agents. Such distributors or selling agents may also be companies or body corporates. Section 7(3) of the Act, as noticed hereinbefore, provides for a penal consequence. If any person acts as an agent or promoter or trader in any lottery, he may be subjected to punishment if he sells, distributes or purchases tickets of such lottery in contravention of the provisions of the said Act, which may include any notification issued under Section 5 of the Act.If by a statutory provision the right of an agent to carry on his business is affected, he may, in our considered opinion, in his own right maintain an action.40. The High Court, therefore, was not correct in holding that they had no personal right to enforce despite of the fact that they would suffer injuries or would otherwise be prejudiced by the notification issued by the State of Karnataka. It would, therefore, not be correct to contend that they could enforce their rights only through their principal and not independently. The Appellants had a legal right to carry on business. Such a right having been impugned by reason of the impugned notification, a writ petition at their instance was maintainable.If the Appellants herein had a legal right, they could seek redressal for violation thereof before an appropriate forum. The locus standi to maintain a writ application even otherwise has received liberal interpretation.For determining the question as regard maintainability of the suit before this Court, it is necessary to consider as to whether the appellants herein whether independently or together with their principals could maintain a suit. In view of a large number of decisions of this Court, evidently, they could not.45. Even the States of Sikkim and Meghalaya filed suits against the State of Karnataka in this Court, the independent right of the Appellants herein to maintain independent action before the appropriate forum could not have been taken away.Agent has been defined in Section 182 of the Indian Contract Act, 1872, to mean a person employed to do any act for another or to represent another in dealings with third persons. The person for whom such act is done, or who is so represented, is called the principal. Section 185 of the Contract Act postulates that no consideration is necessary to create an agency. The authority of an agent may be express or implied in terms of Section 186 thereof. Section 202 of the Contract Act provides that where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest. The right of an agent to sue or be sued in its own name, is governed by Section 230 of the Contract Act, which reads as under :"230. Agent cannot personally enforce, nor be bound by, contracts on behalf of principle.- In the absence of any contract to that effect an agent cannot personally enforce contracts entered into by him on behalf of his principal, nor is he personally bound by them.An agent coupled with interest has a right to sue. He may in certain situations be sued as regard his own liabilities independent of his principal.Once it is held, in view of the aforementioned pronouncement that the Appellants had legal rights to challenge the validity or otherwise of the said notification issued by the State of Karnataka, there cannot be any doubt whatsoever that they would have independent rights to maintain the writ application.If the agent was to be prosecuted for violation of the term of the notification, he could challenge the validity thereof. A fortiori, a quia timet application would also be maintainable. A person must be held to have access to justice if his right in any manner whether to carry on business or threat to his liberty in infringed. Access to justice is a human right. | 1 | 6,836 | 1,058 | ### 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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dispute must fall within one or the other category specified in clauses (a), (b) and (c). 49. In State of Karnataka vs. Union of India (1977) 4 SCC 608 ), this Court observed: "It has to be remembered that Article 131 is traceable to Section 204 of the Government of India Act. The jurisdiction conferred by it thus originated in what was part of the federal structure set up by the Government of India Act, 1935. It is a remnant of the federalims found in that Act. It should, therefore, be widely and generously interpreted for that reason too so as to the advance the intended remedy. It can be invoked, in my opinion, whenever a State and other States or the Union differ on a question of interpretation of the Constitution so that a decision of it will affect the scope or exercise of governmental powers which are attributes of a State. If makes no difference to the maintainability of the action if the powers of the State, which are Executive Legislative, and Judicial are exercised through particular individuals as they necessarily must be. It is true that a criminal act committed by a Minister is no part of his official duties. But, if any of the organs of the State claim exclusive power to take cognizance of it, the State, as such, becomes interested in the dispute about the legal competence or extent of powers of one of its organs which may emerge". 50. Yet again in Union of India vs. State of Rajasthan (1984) 4 SCC 238 ), it was observed: "On a careful consideration of the whole matter in the light of the decisions of this Court referred to above, we feel that Article 131 of the Constitution is attracted only when a dispute arises between or amongst the States and the Union in the context of the constitutional relationship that exists between them and the powers, rights, duties, immunities, liabilities, disabilities etc. flowing therefrom. Any dispute which may arise between a State in the capacity of an employer in a factory, a manufacturer of goods subject to excise duty, a holder of a permit to run a stage carriage, a trader or businessman carrying on business not incidental to the ordinary functions of Government a consumer of railway services etc. like any other private party on the one hand and the Union of India on the other cannot be construed as a dispute arising between the State and the Union in discharge of their respective executive powers attracting Article 131 of the Constitution. It could never have been the intention of the framers of the Constitution that any ordinary dispute of this nature would have to be decided exclusively by the Supreme Court. It is well to remember that the constitutional proposals of the Sapru Committee advocated the strengthening of the position of the Federal Court in India and widening its jurisdiction on the original side so that the Federal Court could act as an interpreter and guardian of the Constitution and as a tribunal for the determination of the disputes between the constituent units of the Federation. The Joint Committee on Indian Constitutional Reforms was also of opinion that the object of the conferring exclusive original jurisdiction on the Federation Court was that the disputes of the kind specified between the Federation and the Provinces as the constituent units of the Federation should not be left to be decided by courts of law of a particular unit but be adjudicated upon only by the highest tribunal in the land which would be beyond the influence of any one constituent unit. The Special Committee consisting of Sriyuts S. Varadachariar, Alladi Krishnaswami Ayyar, B.L. Mitter, K.M. Munshi and B.N. Rau appointed by the Constituent Assembly to consider and report on the constitution and powers of the Supreme Court suggested "that the Supreme Court, like the Federal Court under the 1935 Constitution, would be the best available forum for the adjudication of all disputes between the Union and a unit and between one unit and another and proposed that the court should have an exclusive original jurisdiction in such disputes". (Vide The Framing of Indias Constitution - A study by Shri B. Shiva Rao at p.483). Considered in the light of the foregoing the conclusion becomes inevitable that disputes of the nature involved in this case could not have been in the contemplation of the framers of the Constitution when they adopted Article 131 of the Constitution." Conclusion: 51. The Division Bench of the High Court accepted the position that the Appellants herein are statutory agents but it evidently failed to take into consideration the status of the Appellants vis-a-vis their contractual rights and obligations with their principal coupled with their individual rights to maintainable their writ petitions in proper perspective. It is no doubt true that had the State of Sikkim or the State of Meghalaya intended to sue the State of Karnataka independently; in terms of Article 131 of the Constitution of India the only forum where the dispute between them could have been resolved is this Court alone but when such a lis is brought by the State jointly with their who had also independent cause of action and had a legal right to maintain writ application questioning the legality and/ or validity of the said notification issued by the State, a suit in terms of Article 131 of the Constitution of India would not have been maintainable. 52. The Appellants herein were not busy bodies. They had an interest in the subject-matter of the writ petition. They were, thus, not merely strangers having no right whatsoever in the matter. 53. It has not been contended, nor could it be contended that the Appellants are mere smoke screens of the States of Sikkim and Meghalaya. In absence of such a plea and in view of the fact that the Appellants here not been held to be mere strangers without having any legal right, we
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22. The Appellants herein were appointed as agents of the State, which were governed by contract, in terms whereof, they had invested a huge amount. If the statements made in the writ petitions to which we have adverted to hereinbefore are correct, in the event the impugned notification is implemented the Appellants would not only loose a huge amount of money which they have invested but also would be liable to pay compensation to a large number of work force appointed by them in view of the fact that they would have to close their business. The Appellants are the agents coupled with interest. Such agencies are contemplated under the laws of contract. The Act also postulates that in the event an agent violates the notification issued by the State, he would face the penal consequences laid down therein. The notification has the force of law. In the aforementioned backdrop, the question which arises for consideration is as to whether the Appellants herein had any independent right to question the validity of the said notification.23. The learned Single Judge, as noticed hereinbefore, held that they did not have any such right. On the other hand, the Division Bench was of the opinion :"....May be, the appellants also got adversely affected with the prohibition imposed by the State of Karnataka but it is only incidental because they are the agents of the State of Sikkim and can have their rights only through their principal....."24. We cannot subscribe to the said view.The second part of the said provision does not envisage a situation where the right of an agent is protected in terms of Section 202 of the Contract Act. We have noticed hereinbefore that Section 4(c) of the Act envisages appointment of agents, which empowers the State Government to sell the tickets either itself or through distributors or selling agents. Such distributors or selling agents may also be companies or body corporates. Section 7(3) of the Act, as noticed hereinbefore, provides for a penal consequence. If any person acts as an agent or promoter or trader in any lottery, he may be subjected to punishment if he sells, distributes or purchases tickets of such lottery in contravention of the provisions of the said Act, which may include any notification issued under Section 5 of the Act.If by a statutory provision the right of an agent to carry on his business is affected, he may, in our considered opinion, in his own right maintain an action.40. The High Court, therefore, was not correct in holding that they had no personal right to enforce despite of the fact that they would suffer injuries or would otherwise be prejudiced by the notification issued by the State of Karnataka. It would, therefore, not be correct to contend that they could enforce their rights only through their principal and not independently. The Appellants had a legal right to carry on business. Such a right having been impugned by reason of the impugned notification, a writ petition at their instance was maintainable.If the Appellants herein had a legal right, they could seek redressal for violation thereof before an appropriate forum. The locus standi to maintain a writ application even otherwise has received liberal interpretation.For determining the question as regard maintainability of the suit before this Court, it is necessary to consider as to whether the appellants herein whether independently or together with their principals could maintain a suit. In view of a large number of decisions of this Court, evidently, they could not.45. Even the States of Sikkim and Meghalaya filed suits against the State of Karnataka in this Court, the independent right of the Appellants herein to maintain independent action before the appropriate forum could not have been taken away.Agent has been defined in Section 182 of the Indian Contract Act, 1872, to mean a person employed to do any act for another or to represent another in dealings with third persons. The person for whom such act is done, or who is so represented, is called the principal. Section 185 of the Contract Act postulates that no consideration is necessary to create an agency. The authority of an agent may be express or implied in terms of Section 186 thereof. Section 202 of the Contract Act provides that where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest. The right of an agent to sue or be sued in its own name, is governed by Section 230 of the Contract Act, which reads as under :"230. Agent cannot personally enforce, nor be bound by, contracts on behalf of principle.- In the absence of any contract to that effect an agent cannot personally enforce contracts entered into by him on behalf of his principal, nor is he personally bound by them.An agent coupled with interest has a right to sue. He may in certain situations be sued as regard his own liabilities independent of his principal.Once it is held, in view of the aforementioned pronouncement that the Appellants had legal rights to challenge the validity or otherwise of the said notification issued by the State of Karnataka, there cannot be any doubt whatsoever that they would have independent rights to maintain the writ application.If the agent was to be prosecuted for violation of the term of the notification, he could challenge the validity thereof. A fortiori, a quia timet application would also be maintainable. A person must be held to have access to justice if his right in any manner whether to carry on business or threat to his liberty in infringed. Access to justice is a human right.
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Attar Singh Vs. Inder Kumar | were not there, a landlord can ask for an order directing the tenant to put him in possession in the case of rented land if he required it for his own use. In such circumstances it would have been immaterial what was the use to which the landlord intended to put the rented land after he got possession of it so long as he uses it himself. But as the provision stands, the landlord cannot get possession of rented land merely by laying that he requires it "for his own use" (whatever may be the use to which he may put it after getting possession of it): he has also to show before he can get possession, firstly, that he is not occupying in the urban area concerned for the purpose of his business any other such rented land. If (for example) he is in possession of any other rented land in the urban area concerned for the purpose of his business he cannot ask for eviction of his tenant from his rented land even though the rented land of which he may be in possession for the purpose of his business may not be his own land and he may only be a tenant of that land. This shows clearly that though the words "for his own use" in sub-cl. (a) are not qualified, the intention of the legislature must have been that if the landlord is in possession of other rented land, whether his own or belonging to somebody else, for his business he cannot evict a tenant from his own rented land. It clearly follows from this that the intention when the words "for his own use" are used in sub-cl. (a) is that the landlord requires the rented land from which he is asking for eviction of the tenant for his own trade or business. Otherwise we cannot understand why, if it is the intention of the legislature that the landlord can ask for eviction of his tenant of rented land for any purpose whatever, he should not get it back if he is in possession of other rented land for his business. This to our mind clearly implies that sub-cl. (a) has to be read in the light of sub-cl. (b), and if that is so, the words "for his own use" must receive a meaning restricted by the implication arising from sub-cl (b).8. Turning now to sub-cl. (c), we find that the landlord has not only to prove before he can get the tenant evicted on the ground that he requires rented land for his own use that he is not in possession of any other rented land for the purpose of his business in that urban area but also to prove that he had not vacated any rented land without sufficient cause after the commencement of the Act. Thus he has not only to prove that he is not in possession of any other rented land for his business but also to prove that he had not vacated any other rented land which he -used principally for business without sufficient cause. For example, even if the landlord is not in possession of any rented land for his business but had vacated other rented land which means land that he had taken for business without sufficient cause he would still not be entitled to ask for eviction of a tenant from his own rented land. This again shows that if the landlord had been in possession of land for business principally and vacated it without sufficient cause he cannot ask for the eviction of a tenant from his own rented land on the ground that he requires it for his own use.9. It should therefore be clear that "for his own use in sub-cl. (a) means use for the purpose of business principally, for otherwise we cannot understand why, if the landlord had given up some rented land which he had taken for business principally, he should not be entitled to recover his own rented land if he required it (say) as in this case, for constructing a residential building for himself. The very fact that sub-cls. (b) and (c) require that the landlord should not be in possession of any rented land for his own business and should not have given up possession of any other rented land, i. e., land which he was principally using for business, show that he can only take advantage of sub-cl. (a) if he is able to show that he requires the rented land for business. Otherwise the restrictions contained in sub-cl. (b) and sub-cl. (c) would become meaningless, it were held that sub-cl. (a) would be satisfied if the landlord requires the rented land for any purpose as (for example) constructing a residential house for himself. We are of opinion therefore that sub-cls. (a), (b) and (c) in this provision must be read together, and reading them together there can be no doubt that when sub-cl. (a) provides that the landlord requires rented land for his own use, the meaning there is restricted to use principally for business or trade. We have already said that the Act is an ameliorative piece of legislation meant for the protection of tenants, and we have no hesitation in coming to the conclusion that the words "for his own use" in sub-cl. (a) in the circumstances must be limited in the manner indicated above, as that will give full protection to tenants of rented land and save them from eviction unless the landlord requires such land for the same purpose for which it had been let i. e. principally for trade or business. We are therefore of opinion that the view taken in the case of Municipal Committee Abohar is incorrect, and as the respondent landlord required the land in this case not for business or trade principally but only for constructing a house for himself he is not entitled to elect the appellant under S. 13 (3) (a) (ii). | 1[ds]7. We are of opinion that the contention raised on behalf of the appellant is correct, and the view taken by the High Court in the case of Municipal Committee Abohar cannot be sustained. It is true that in sub-cl. (a) the words "for his own use" are not qualified and at first sight it may appear that a landlord can ask for eviction from rented land if he requires it for his own use, whatever may be the use to which he may put it after eviction. Now if sub-cls. (b) and (c) were not there this would be the correct interpretation of sub-cl (a). This interpretation has been put by the High Court in Municipal Committee Abohar, but in that case the High Court has not considered the effect of sub-cls. (b) and (c)on the meaning to be given to the words for his own use in sub-cl. (a) and seems to have proceeded as if sub-cls. (b) and (c) were not there at all. We are of opinion that sub-cl. (a) has to be read in this provision along with sub-cls. (b) and (c) and it has to be seen whether the presence of sub-cls. (b) and (c) makes any difference to the meaning of the words "for his own use" in sub-cl. (a), which is otherwise unqualified. Now if sub-cls. (b) and (c) were not there, a landlord can ask for an order directing the tenant to put him in possession in the case of rented land if he required it for his own use. In such circumstances it would have been immaterial what was the use to which the landlord intended to put the rented land after he got possession of it so long as he uses it himself. But as the provision stands, the landlord cannot get possession of rented land merely by laying that he requires it "for his own use" (whatever may be the use to which he may put it after getting possession of it): he has also to show before he can get possession, firstly, that he is not occupying in the urban area concerned for the purpose of his business any other such rented land. If (for example) he is in possession of any other rented land in the urban area concerned for the purpose of his business he cannot ask for eviction of his tenant from his rented land even though the rented land of which he may be in possession for the purpose of his business may not be his own land and he may only be a tenant of that land. This shows clearly that though the words "for his own use" in sub-cl. (a) are not qualified, the intention of the legislature must have been that if the landlord is in possession of other rented land, whether his own or belonging to somebody else, for his business he cannot evict a tenant from his own rented land. It clearly follows from this that the intention when the words "for his own use" are used in sub-cl. (a) is that the landlord requires the rented land from which he is asking for eviction of the tenant for his own trade or business. Otherwise we cannot understand why, if it is the intention of the legislature that the landlord can ask for eviction of his tenant of rented land for any purpose whatever, he should not get it back if he is in possession of other rented land for his business. This to our mind clearly implies that sub-cl. (a) has to be read in the light of sub-cl. (b), and if that is so, the words "for his own use" must receive a meaning restricted by the implication arising from sub-cl (b).8. Turning now to sub-cl. (c), we find that the landlord has not only to prove before he can get the tenant evicted on the ground that he requires rented land for his own use that he is not in possession of any other rented land for the purpose of his business in that urban area but also to prove that he had not vacated any rented land without sufficient cause after the commencement of the Act. Thus he has not only to prove that he is not in possession of any other rented land for his business but also to prove that he had not vacated any other rented land which he -used principally for business without sufficient cause. For example, even if the landlord is not in possession of any rented land for his business but had vacated other rented land which means land that he had taken for business without sufficient cause he would still not be entitled to ask for eviction of a tenant from his own rented land. This again shows that if the landlord had been in possession of land for business principally and vacated it without sufficient cause he cannot ask for the eviction of a tenant from his own rented land on the ground that he requires it for his own use.9. It should therefore be clear that "for his own use in sub-cl. (a) means use for the purpose of business principally, for otherwise we cannot understand why, if the landlord had given up some rented land which he had taken for business principally, he should not be entitled to recover his own rented land if he required it (say) as in this case, for constructing a residential building for himself. The very fact that sub-cls. (b) and (c) require that the landlord should not be in possession of any rented land for his own business and should not have given up possession of any other rented land, i. e., land which he was principally using for business, show that he can only take advantage of sub-cl. (a) if he is able to show that he requires the rented land for business. Otherwise the restrictions contained in sub-cl. (b) and sub-cl. (c) would become meaningless, it were held that sub-cl. (a) would be satisfied if the landlord requires the rented land for any purpose as (for example) constructing a residential house for himself. We are of opinion therefore that sub-cls. (a), (b) and (c) in this provision must be read together, and reading them together there can be no doubt that when sub-cl. (a) provides that the landlord requires rented land for his own use, the meaning there is restricted to use principally for business or trade. We have already said that the Act is an ameliorative piece of legislation meant for the protection of tenants, and we have no hesitation in coming to the conclusion that the words "for his own use" in sub-cl. (a) in the circumstances must be limited in the manner indicated above, as that will give full protection to tenants of rented land and save them from eviction unless the landlord requires such land for the same purpose for which it had been let i. e. principally for trade or business. We are therefore of opinion that the view taken in the case of Municipal Committee Abohar is incorrect, and as the respondent landlord required the land in this case not for business or trade principally but only for constructing a house for himself he is not entitled to elect the appellant under S. 13 (3) (a) (ii). | 1 | 2,691 | 1,419 | ### Instruction:
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were not there, a landlord can ask for an order directing the tenant to put him in possession in the case of rented land if he required it for his own use. In such circumstances it would have been immaterial what was the use to which the landlord intended to put the rented land after he got possession of it so long as he uses it himself. But as the provision stands, the landlord cannot get possession of rented land merely by laying that he requires it "for his own use" (whatever may be the use to which he may put it after getting possession of it): he has also to show before he can get possession, firstly, that he is not occupying in the urban area concerned for the purpose of his business any other such rented land. If (for example) he is in possession of any other rented land in the urban area concerned for the purpose of his business he cannot ask for eviction of his tenant from his rented land even though the rented land of which he may be in possession for the purpose of his business may not be his own land and he may only be a tenant of that land. This shows clearly that though the words "for his own use" in sub-cl. (a) are not qualified, the intention of the legislature must have been that if the landlord is in possession of other rented land, whether his own or belonging to somebody else, for his business he cannot evict a tenant from his own rented land. It clearly follows from this that the intention when the words "for his own use" are used in sub-cl. (a) is that the landlord requires the rented land from which he is asking for eviction of the tenant for his own trade or business. Otherwise we cannot understand why, if it is the intention of the legislature that the landlord can ask for eviction of his tenant of rented land for any purpose whatever, he should not get it back if he is in possession of other rented land for his business. This to our mind clearly implies that sub-cl. (a) has to be read in the light of sub-cl. (b), and if that is so, the words "for his own use" must receive a meaning restricted by the implication arising from sub-cl (b).8. Turning now to sub-cl. (c), we find that the landlord has not only to prove before he can get the tenant evicted on the ground that he requires rented land for his own use that he is not in possession of any other rented land for the purpose of his business in that urban area but also to prove that he had not vacated any rented land without sufficient cause after the commencement of the Act. Thus he has not only to prove that he is not in possession of any other rented land for his business but also to prove that he had not vacated any other rented land which he -used principally for business without sufficient cause. For example, even if the landlord is not in possession of any rented land for his business but had vacated other rented land which means land that he had taken for business without sufficient cause he would still not be entitled to ask for eviction of a tenant from his own rented land. This again shows that if the landlord had been in possession of land for business principally and vacated it without sufficient cause he cannot ask for the eviction of a tenant from his own rented land on the ground that he requires it for his own use.9. It should therefore be clear that "for his own use in sub-cl. (a) means use for the purpose of business principally, for otherwise we cannot understand why, if the landlord had given up some rented land which he had taken for business principally, he should not be entitled to recover his own rented land if he required it (say) as in this case, for constructing a residential building for himself. The very fact that sub-cls. (b) and (c) require that the landlord should not be in possession of any rented land for his own business and should not have given up possession of any other rented land, i. e., land which he was principally using for business, show that he can only take advantage of sub-cl. (a) if he is able to show that he requires the rented land for business. Otherwise the restrictions contained in sub-cl. (b) and sub-cl. (c) would become meaningless, it were held that sub-cl. (a) would be satisfied if the landlord requires the rented land for any purpose as (for example) constructing a residential house for himself. We are of opinion therefore that sub-cls. (a), (b) and (c) in this provision must be read together, and reading them together there can be no doubt that when sub-cl. (a) provides that the landlord requires rented land for his own use, the meaning there is restricted to use principally for business or trade. We have already said that the Act is an ameliorative piece of legislation meant for the protection of tenants, and we have no hesitation in coming to the conclusion that the words "for his own use" in sub-cl. (a) in the circumstances must be limited in the manner indicated above, as that will give full protection to tenants of rented land and save them from eviction unless the landlord requires such land for the same purpose for which it had been let i. e. principally for trade or business. We are therefore of opinion that the view taken in the case of Municipal Committee Abohar is incorrect, and as the respondent landlord required the land in this case not for business or trade principally but only for constructing a house for himself he is not entitled to elect the appellant under S. 13 (3) (a) (ii).
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were not there, a landlord can ask for an order directing the tenant to put him in possession in the case of rented land if he required it for his own use. In such circumstances it would have been immaterial what was the use to which the landlord intended to put the rented land after he got possession of it so long as he uses it himself. But as the provision stands, the landlord cannot get possession of rented land merely by laying that he requires it "for his own use" (whatever may be the use to which he may put it after getting possession of it): he has also to show before he can get possession, firstly, that he is not occupying in the urban area concerned for the purpose of his business any other such rented land. If (for example) he is in possession of any other rented land in the urban area concerned for the purpose of his business he cannot ask for eviction of his tenant from his rented land even though the rented land of which he may be in possession for the purpose of his business may not be his own land and he may only be a tenant of that land. This shows clearly that though the words "for his own use" in sub-cl. (a) are not qualified, the intention of the legislature must have been that if the landlord is in possession of other rented land, whether his own or belonging to somebody else, for his business he cannot evict a tenant from his own rented land. It clearly follows from this that the intention when the words "for his own use" are used in sub-cl. (a) is that the landlord requires the rented land from which he is asking for eviction of the tenant for his own trade or business. Otherwise we cannot understand why, if it is the intention of the legislature that the landlord can ask for eviction of his tenant of rented land for any purpose whatever, he should not get it back if he is in possession of other rented land for his business. This to our mind clearly implies that sub-cl. (a) has to be read in the light of sub-cl. (b), and if that is so, the words "for his own use" must receive a meaning restricted by the implication arising from sub-cl (b).8. Turning now to sub-cl. (c), we find that the landlord has not only to prove before he can get the tenant evicted on the ground that he requires rented land for his own use that he is not in possession of any other rented land for the purpose of his business in that urban area but also to prove that he had not vacated any rented land without sufficient cause after the commencement of the Act. Thus he has not only to prove that he is not in possession of any other rented land for his business but also to prove that he had not vacated any other rented land which he -used principally for business without sufficient cause. For example, even if the landlord is not in possession of any rented land for his business but had vacated other rented land which means land that he had taken for business without sufficient cause he would still not be entitled to ask for eviction of a tenant from his own rented land. This again shows that if the landlord had been in possession of land for business principally and vacated it without sufficient cause he cannot ask for the eviction of a tenant from his own rented land on the ground that he requires it for his own use.9. It should therefore be clear that "for his own use in sub-cl. (a) means use for the purpose of business principally, for otherwise we cannot understand why, if the landlord had given up some rented land which he had taken for business principally, he should not be entitled to recover his own rented land if he required it (say) as in this case, for constructing a residential building for himself. The very fact that sub-cls. (b) and (c) require that the landlord should not be in possession of any rented land for his own business and should not have given up possession of any other rented land, i. e., land which he was principally using for business, show that he can only take advantage of sub-cl. (a) if he is able to show that he requires the rented land for business. Otherwise the restrictions contained in sub-cl. (b) and sub-cl. (c) would become meaningless, it were held that sub-cl. (a) would be satisfied if the landlord requires the rented land for any purpose as (for example) constructing a residential house for himself. We are of opinion therefore that sub-cls. (a), (b) and (c) in this provision must be read together, and reading them together there can be no doubt that when sub-cl. (a) provides that the landlord requires rented land for his own use, the meaning there is restricted to use principally for business or trade. We have already said that the Act is an ameliorative piece of legislation meant for the protection of tenants, and we have no hesitation in coming to the conclusion that the words "for his own use" in sub-cl. (a) in the circumstances must be limited in the manner indicated above, as that will give full protection to tenants of rented land and save them from eviction unless the landlord requires such land for the same purpose for which it had been let i. e. principally for trade or business. We are therefore of opinion that the view taken in the case of Municipal Committee Abohar is incorrect, and as the respondent landlord required the land in this case not for business or trade principally but only for constructing a house for himself he is not entitled to elect the appellant under S. 13 (3) (a) (ii).
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Government of Tamil Nadu Vs. Thiru Lakshmi Match Works | BHAGWATI, J.These appeals by certificate are directed against an order passed by the High Court of Madras disposing of three revision petitions preferred by the three respondents challenging the levy of sales tax on certain transactions of sale of matches entered into by them with buyers in the States of Karnataka and Maharashtra. These transactions of sale were taxed by the sales tax authorities as inter-State sales under the Central Sales Tax Act, 1956, and tax was levied on them at seven per cent under section 8(2)(b) of the Act. The respondents contended that the sales in question were not inter-State sales and were, therefore, not amenable to tax under the Central Sales Tax Act, 1956. This contention was finally negatived by the High Court in the revision petitions preferred by them and since no appeals have been preferred by the respondents against this finding, it has become final against them. The respondents also contended in the alternative that even if the sales effected by them were inter-State sales they were not liable to be taxed at seven per cent under section 8(2)(b) since that section was ultra vires and void as offending article 301 of the Constitution and that the appropriate rate of tax leviable on these sales was, therefore, the same raw which was leviable on local sales of matches within the State of Tamil Nadu, namely, two per cent. The High Court upheld the contention of the respondents and following its earlier decision in Sitalakshmi Mills Ltd. v. Deputy Commercial Tax Officer [1968] 22 STC 436 (Mad) took the view that section 8(2)(b) was violative of article 301 of the Constitution and was, therefore, unconstitutional and void and, on this view it held that the sales effected by the respondents were taxable only at the rate of two per cent. The State of Tamil Nadu thereupon preferred the present appeals after obtaining certificate from the High Court.They only question which arises for consideration in these appeals is whether section 8(2)(b) of the Central Sales Tax Act, 1956, is unconstitutional and void as violating article 301 of the Constitution. It is no doubt true that in Sitalakshmi Mills case [1968] 22 STC 436 (Mad) the High Court of Madras held section 8(2)(b) to be ultra vires and void but this decision of the Madras High Court was reversed in appeal by this Court. The judgment of this Court reversing that decision is reported as State of Tamil Nadu v. Sitalakshmi Mills [1974] 33 STC 200 (SC) . This Court held in that case that section 8(2)(b) of the Central Sales Tax Act, 1956, does not offend articles 301 and 303(1) of the Constitution and is valid. In view of this decision, it was impossible for Mr. Francis, on behalf of the respondents, to sustain the judgment under appeal and that judgment must therefore be set aside. | 1[ds]It is no doubt true that in Sitalakshmi Mills case [1968] 22 STC 436 (Mad) the High Court of Madras held section 8(2)(b) to be ultra vires and void but this decision of the Madras High Court was reversed in appeal by this Court. The judgment of this Court reversing that decision is reported as State of Tamil Nadu v. Sitalakshmi Mills [1974] 33 STC 200 (SC) . This Court held in that case that section 8(2)(b) of the Central Sales Tax Act, 1956, does not offend articles 301 and 303(1) of the Constitution and is valid. In view of this decision, it was impossible for Mr. Francis, on behalf of the respondents, to sustain the judgment under appeal and that judgment must therefore be set aside. | 1 | 560 | 162 | ### Instruction:
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BHAGWATI, J.These appeals by certificate are directed against an order passed by the High Court of Madras disposing of three revision petitions preferred by the three respondents challenging the levy of sales tax on certain transactions of sale of matches entered into by them with buyers in the States of Karnataka and Maharashtra. These transactions of sale were taxed by the sales tax authorities as inter-State sales under the Central Sales Tax Act, 1956, and tax was levied on them at seven per cent under section 8(2)(b) of the Act. The respondents contended that the sales in question were not inter-State sales and were, therefore, not amenable to tax under the Central Sales Tax Act, 1956. This contention was finally negatived by the High Court in the revision petitions preferred by them and since no appeals have been preferred by the respondents against this finding, it has become final against them. The respondents also contended in the alternative that even if the sales effected by them were inter-State sales they were not liable to be taxed at seven per cent under section 8(2)(b) since that section was ultra vires and void as offending article 301 of the Constitution and that the appropriate rate of tax leviable on these sales was, therefore, the same raw which was leviable on local sales of matches within the State of Tamil Nadu, namely, two per cent. The High Court upheld the contention of the respondents and following its earlier decision in Sitalakshmi Mills Ltd. v. Deputy Commercial Tax Officer [1968] 22 STC 436 (Mad) took the view that section 8(2)(b) was violative of article 301 of the Constitution and was, therefore, unconstitutional and void and, on this view it held that the sales effected by the respondents were taxable only at the rate of two per cent. The State of Tamil Nadu thereupon preferred the present appeals after obtaining certificate from the High Court.They only question which arises for consideration in these appeals is whether section 8(2)(b) of the Central Sales Tax Act, 1956, is unconstitutional and void as violating article 301 of the Constitution. It is no doubt true that in Sitalakshmi Mills case [1968] 22 STC 436 (Mad) the High Court of Madras held section 8(2)(b) to be ultra vires and void but this decision of the Madras High Court was reversed in appeal by this Court. The judgment of this Court reversing that decision is reported as State of Tamil Nadu v. Sitalakshmi Mills [1974] 33 STC 200 (SC) . This Court held in that case that section 8(2)(b) of the Central Sales Tax Act, 1956, does not offend articles 301 and 303(1) of the Constitution and is valid. In view of this decision, it was impossible for Mr. Francis, on behalf of the respondents, to sustain the judgment under appeal and that judgment must therefore be set aside.
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### Explanation:
It is no doubt true that in Sitalakshmi Mills case [1968] 22 STC 436 (Mad) the High Court of Madras held section 8(2)(b) to be ultra vires and void but this decision of the Madras High Court was reversed in appeal by this Court. The judgment of this Court reversing that decision is reported as State of Tamil Nadu v. Sitalakshmi Mills [1974] 33 STC 200 (SC) . This Court held in that case that section 8(2)(b) of the Central Sales Tax Act, 1956, does not offend articles 301 and 303(1) of the Constitution and is valid. In view of this decision, it was impossible for Mr. Francis, on behalf of the respondents, to sustain the judgment under appeal and that judgment must therefore be set aside.
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State of Gujarat Vs. Prakash Trading Company Ahmedabad | that all the three articles in question, namely, Palmolive shampoo, Colgate tooth paste and Colgate tooth brush are toilet articles as mentioned in Entry 21A of Schedule E to the Act. As against that Mr. Chagla on behalf of the respondent has canvassed for the correctness of the view of the High Court. 4. We may at this stage refer to the three entries with which we are concerned. Entry 28 of Schedule C to the Act pertains to soaps. Entry 21A of Schedule E to the Act deals with the following goods : 21A. Toilet articles including hair cream and hair tonic; and perfumes, depilatories and cosmetics (except soap as specified in Entry 28 in Schedule C and hair oil as specified in Entry 7 of this Schedule). Entry 22 is a residuary entry and relates to all goods other than those specified from time to time in Schedules A, B, C and D and in the preceding entries. 5. So far as Colgate tooth paste is concerned, we find that the matter is concluded by a decision of this Court in the case of Sarin Chemical Laboratories v. Commissioner of Sales Tax, U. P., 26 STC 339 = (AIR 1971 SC 65 ). It was held in that case that tooth powder is a toilet requisite and was liable to sales tax as such. Reference in this connection was made to the dictionary meaning of the words cosmetic, toilet and toiletry. Cosmetic, according to Websters International Dictionary, is a preparation to beautify or alter appearance of the body or for cleansing, colouring, conditioning or protecting skin, hair, nails, eyes or teeth. The same dictionary gives the meaning of the expression toilet as an act or process of dressing, especially formerly of dressing hair and now usually cleansing and grooming of ones person. Toiletry, according to the dictionary, is an article or preparation used in making ones toilet such as soap, lotion, cosmetic, tooth-paste, shaving cream, cologne etc. It was further observed by this Court that according to the dictionary meaning, tooth powder was regarded both as an item of cosmetic and toilet and that in common parlance, tooth powder was considered to be an article of toilet. As such, the Court came to the conclusion that tooth powder was a toilet requisite. The reasoning given by this Court in respect of tooth powder in the above cited case, in our opinion, holds equally good for tooth paste. Likewise, the dictionary meaning of the word toilet relied upon in the above case as an act or process of cleansing of ones person shows that a tooth brush which is meant for cleansing ones teeth is a toilet article. 6. Mr. Chgla has tried to distinguish the case of Sarin Chemical Laboratory, 26 STC 339 = (AIR 1971 SC 65 ) (supra) on the ground that that was a case under the U. P. Sales Tax Act, while we are dealing with a case under the Bombay Sales Tax Act. This submission is clearly untenable, because we are concerned with the concept of a toilet article as understood in common parlance. Neither the Bombay Sales Tax Act nor the U. P. Sales Tax Act contained any special definition of the toilet articles and, as such, the reasoning in the case of Sarin Chemical Laboratory (supra) cannot be held to relate only to cases under the U. P. Sales Tax Act. Apart from that, we find that in the case of Sarin Chemical Laboratory (supra) this Court approved of the decision of the Bombay High Court in Commr. of Sales Tax v. Vicco Laboratories, (1968) 22 STC 169 (Bom.) . In the last mentioned case it was held by the Bombay High Court that Vicco Vajradanti dentifrice in the form of a powder used for cleansing teeth was a toilet article. It would, therefore, follow that this Court has set its seal of approval on the view that for the Bombay Sales Tax Act also, dental powder used for cleansing of teeth is a toilet article. 7. We are also unable to accede to the submission of Mr. Chagla that as teeth can also be cleansed without the use of tooth brush, the same is not a toilet article. The question with which we are concerned is not whether the use of tooth brush can be dispensed with, but whether it is actually used for the purpose of cleansing ones teeth. If the tooth brush is, in fact, used for cleansing ones teeth, the same must be held to be an article of toilet. 8. The view taken by the High Court regarding shampoo that it constitutes soap, in our opinion, is well founded. The High Court in this respect has referred to the following passage in the Encyclopaedia of Chemical Technology : .............. The soaps used for shampooing the hair are essentially the same as those described under soap. (See Cosmetics Vol. 6, P. 550 soap). They are available in several forms; bar, cake, liquid, powder (or granules) and jelly. Although there will undoubtedly always be numbers of individuals who will wash their hair with any cake of soap that may be at hand, the prepared liquid shampoos have rapidly risen to first place in the retail trade. The bars and cakes are shaved down, the granules are dissolved and the jellies are diluted, to prepare liquid shampoo of the desired concentration............... The High Court concluded from the above that Palmolive shampoo was soap covered by Entry 28 of Schedule C to the Act. We agree with the High Court in this respect and are of the opinion that shampoo is a kind of liquid soap. It has all the essential ingredients of a soap. It may be that the proportion of the ingredients of the liquid soap differ from those of a soap in the form of a cake but that fact would not alter the basic character of shampoo and take it out of the category of soaps. | 1[ds]5. So far as Colgate tooth paste is concerned, we find that the matter is concluded by a decision of this Court in the case of Sarin Chemical Laboratories v. Commissioner of Sales Tax, U. P., 26 STC 339 = (AIR 1971 SC 65 ). It was held in that case that tooth powder is a toilet requisite and was liable to sales tax as such. Reference in this connection was made to the dictionary meaning of the words cosmetic, toilet and toiletry. Cosmetic, according to Websters International Dictionary, is a preparation to beautify or alter appearance of the body or for cleansing, colouring, conditioning or protecting skin, hair, nails, eyes or teeth. The same dictionary gives the meaning of the expression toilet as an act or process of dressing, especially formerly of dressing hair and now usually cleansing and grooming of ones person. Toiletry, according to the dictionary, is an article or preparation used in making ones toilet such as soap, lotion, cosmetic,, shaving cream, cologne etc. It was further observed by this Court that according to the dictionary meaning, tooth powder was regarded both as an item of cosmetic and toilet and that in common parlance, tooth powder was considered to be an article of toilet. As such, the Court came to the conclusion that tooth powder was a toilet requisite. The reasoning given by this Court in respect of tooth powder in the above cited case, in our opinion, holds equally good for tooth paste. Likewise, the dictionary meaning of the word toilet relied upon in the above case as an act or process of cleansing of ones person shows that a tooth brush which is meant for cleansing ones teeth is a toilet article6. Mr. Chgla has tried to distinguish the case of Sarin Chemical Laboratory, 26 STC 339 = (AIR 1971 SC 65 ) (supra) on the ground that that was a case under the U. P. Sales Tax Act, while we are dealing with a case under the Bombay Sales Tax Act.This submission is clearly untenable, because we are concerned with the concept of a toilet article as understood in common parlance. Neither the Bombay Sales Tax Act nor the U. P. Sales Tax Act contained any special definition of the toilet articles and, as such, the reasoning in the case of Sarin Chemical Laboratory (supra) cannot be held to relate only to cases under the U. P. Sales Tax Act. Apart from that, we find that in the case of Sarin Chemical Laboratory (supra) this Court approved of the decision of the Bombay High Court in Commr. of Sales Tax v. Vicco Laboratories, (1968) 22 STC 169 (Bom.) . In the last mentioned case it was held by the Bombay High Court that Vicco Vajradanti dentifrice in the form of a powder used for cleansing teeth was a toilet article. It would, therefore, follow that this Court has set its seal of approval on the view that for the Bombay Sales Tax Act also, dental powder used for cleansing of teeth is a toilet article7. We are also unable to accede to the submission of Mr. Chagla that as teeth can also be cleansed without the use of tooth brush, the same is not a toilet article. The question with which we are concerned is not whether the use of tooth brush can be dispensed with, but whether it is actually used for the purpose of cleansing ones teeth. If the tooth brush is, in fact, used for cleansing ones teeth, the same must be held to be an article of toilet8. The view taken by the High Court regarding shampoo that it constitutes soap, in our opinion, is well founded. The High Court in this respect has referred to the following passage in the Encyclopaedia of Chemical Technology :.............. The soaps used for shampooing the hair are essentially the same as those described under soap. (See Cosmetics Vol. 6, P. 550 soap). They are available in several forms; bar, cake, liquid, powder (or granules) and jelly. Although there will undoubtedly always be numbers of individuals who will wash their hair with any cake of soap that may be at hand, the prepared liquid shampoos have rapidly risen to first place in the retail trade. The bars and cakes are shaved down, the granules are dissolved and the jellies are diluted, to prepare liquid shampoo of the desired concentrationThe High Court concluded from the above that Palmolive shampoo was soap covered by Entry 28 of Schedule C to the Act. We agree with the High Court in this respect and are of the opinion that shampoo is a kind of liquid soap. It has all the essential ingredients of a soap. It may be that the proportion of the ingredients of the liquid soap differ from those of a soap in the form of a cake but that fact would not alter the basic character of shampoo and take it out of the category of soaps. | 1 | 1,654 | 935 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
that all the three articles in question, namely, Palmolive shampoo, Colgate tooth paste and Colgate tooth brush are toilet articles as mentioned in Entry 21A of Schedule E to the Act. As against that Mr. Chagla on behalf of the respondent has canvassed for the correctness of the view of the High Court. 4. We may at this stage refer to the three entries with which we are concerned. Entry 28 of Schedule C to the Act pertains to soaps. Entry 21A of Schedule E to the Act deals with the following goods : 21A. Toilet articles including hair cream and hair tonic; and perfumes, depilatories and cosmetics (except soap as specified in Entry 28 in Schedule C and hair oil as specified in Entry 7 of this Schedule). Entry 22 is a residuary entry and relates to all goods other than those specified from time to time in Schedules A, B, C and D and in the preceding entries. 5. So far as Colgate tooth paste is concerned, we find that the matter is concluded by a decision of this Court in the case of Sarin Chemical Laboratories v. Commissioner of Sales Tax, U. P., 26 STC 339 = (AIR 1971 SC 65 ). It was held in that case that tooth powder is a toilet requisite and was liable to sales tax as such. Reference in this connection was made to the dictionary meaning of the words cosmetic, toilet and toiletry. Cosmetic, according to Websters International Dictionary, is a preparation to beautify or alter appearance of the body or for cleansing, colouring, conditioning or protecting skin, hair, nails, eyes or teeth. The same dictionary gives the meaning of the expression toilet as an act or process of dressing, especially formerly of dressing hair and now usually cleansing and grooming of ones person. Toiletry, according to the dictionary, is an article or preparation used in making ones toilet such as soap, lotion, cosmetic, tooth-paste, shaving cream, cologne etc. It was further observed by this Court that according to the dictionary meaning, tooth powder was regarded both as an item of cosmetic and toilet and that in common parlance, tooth powder was considered to be an article of toilet. As such, the Court came to the conclusion that tooth powder was a toilet requisite. The reasoning given by this Court in respect of tooth powder in the above cited case, in our opinion, holds equally good for tooth paste. Likewise, the dictionary meaning of the word toilet relied upon in the above case as an act or process of cleansing of ones person shows that a tooth brush which is meant for cleansing ones teeth is a toilet article. 6. Mr. Chgla has tried to distinguish the case of Sarin Chemical Laboratory, 26 STC 339 = (AIR 1971 SC 65 ) (supra) on the ground that that was a case under the U. P. Sales Tax Act, while we are dealing with a case under the Bombay Sales Tax Act. This submission is clearly untenable, because we are concerned with the concept of a toilet article as understood in common parlance. Neither the Bombay Sales Tax Act nor the U. P. Sales Tax Act contained any special definition of the toilet articles and, as such, the reasoning in the case of Sarin Chemical Laboratory (supra) cannot be held to relate only to cases under the U. P. Sales Tax Act. Apart from that, we find that in the case of Sarin Chemical Laboratory (supra) this Court approved of the decision of the Bombay High Court in Commr. of Sales Tax v. Vicco Laboratories, (1968) 22 STC 169 (Bom.) . In the last mentioned case it was held by the Bombay High Court that Vicco Vajradanti dentifrice in the form of a powder used for cleansing teeth was a toilet article. It would, therefore, follow that this Court has set its seal of approval on the view that for the Bombay Sales Tax Act also, dental powder used for cleansing of teeth is a toilet article. 7. We are also unable to accede to the submission of Mr. Chagla that as teeth can also be cleansed without the use of tooth brush, the same is not a toilet article. The question with which we are concerned is not whether the use of tooth brush can be dispensed with, but whether it is actually used for the purpose of cleansing ones teeth. If the tooth brush is, in fact, used for cleansing ones teeth, the same must be held to be an article of toilet. 8. The view taken by the High Court regarding shampoo that it constitutes soap, in our opinion, is well founded. The High Court in this respect has referred to the following passage in the Encyclopaedia of Chemical Technology : .............. The soaps used for shampooing the hair are essentially the same as those described under soap. (See Cosmetics Vol. 6, P. 550 soap). They are available in several forms; bar, cake, liquid, powder (or granules) and jelly. Although there will undoubtedly always be numbers of individuals who will wash their hair with any cake of soap that may be at hand, the prepared liquid shampoos have rapidly risen to first place in the retail trade. The bars and cakes are shaved down, the granules are dissolved and the jellies are diluted, to prepare liquid shampoo of the desired concentration............... The High Court concluded from the above that Palmolive shampoo was soap covered by Entry 28 of Schedule C to the Act. We agree with the High Court in this respect and are of the opinion that shampoo is a kind of liquid soap. It has all the essential ingredients of a soap. It may be that the proportion of the ingredients of the liquid soap differ from those of a soap in the form of a cake but that fact would not alter the basic character of shampoo and take it out of the category of soaps.
### Response:
1
### Explanation:
5. So far as Colgate tooth paste is concerned, we find that the matter is concluded by a decision of this Court in the case of Sarin Chemical Laboratories v. Commissioner of Sales Tax, U. P., 26 STC 339 = (AIR 1971 SC 65 ). It was held in that case that tooth powder is a toilet requisite and was liable to sales tax as such. Reference in this connection was made to the dictionary meaning of the words cosmetic, toilet and toiletry. Cosmetic, according to Websters International Dictionary, is a preparation to beautify or alter appearance of the body or for cleansing, colouring, conditioning or protecting skin, hair, nails, eyes or teeth. The same dictionary gives the meaning of the expression toilet as an act or process of dressing, especially formerly of dressing hair and now usually cleansing and grooming of ones person. Toiletry, according to the dictionary, is an article or preparation used in making ones toilet such as soap, lotion, cosmetic,, shaving cream, cologne etc. It was further observed by this Court that according to the dictionary meaning, tooth powder was regarded both as an item of cosmetic and toilet and that in common parlance, tooth powder was considered to be an article of toilet. As such, the Court came to the conclusion that tooth powder was a toilet requisite. The reasoning given by this Court in respect of tooth powder in the above cited case, in our opinion, holds equally good for tooth paste. Likewise, the dictionary meaning of the word toilet relied upon in the above case as an act or process of cleansing of ones person shows that a tooth brush which is meant for cleansing ones teeth is a toilet article6. Mr. Chgla has tried to distinguish the case of Sarin Chemical Laboratory, 26 STC 339 = (AIR 1971 SC 65 ) (supra) on the ground that that was a case under the U. P. Sales Tax Act, while we are dealing with a case under the Bombay Sales Tax Act.This submission is clearly untenable, because we are concerned with the concept of a toilet article as understood in common parlance. Neither the Bombay Sales Tax Act nor the U. P. Sales Tax Act contained any special definition of the toilet articles and, as such, the reasoning in the case of Sarin Chemical Laboratory (supra) cannot be held to relate only to cases under the U. P. Sales Tax Act. Apart from that, we find that in the case of Sarin Chemical Laboratory (supra) this Court approved of the decision of the Bombay High Court in Commr. of Sales Tax v. Vicco Laboratories, (1968) 22 STC 169 (Bom.) . In the last mentioned case it was held by the Bombay High Court that Vicco Vajradanti dentifrice in the form of a powder used for cleansing teeth was a toilet article. It would, therefore, follow that this Court has set its seal of approval on the view that for the Bombay Sales Tax Act also, dental powder used for cleansing of teeth is a toilet article7. We are also unable to accede to the submission of Mr. Chagla that as teeth can also be cleansed without the use of tooth brush, the same is not a toilet article. The question with which we are concerned is not whether the use of tooth brush can be dispensed with, but whether it is actually used for the purpose of cleansing ones teeth. If the tooth brush is, in fact, used for cleansing ones teeth, the same must be held to be an article of toilet8. The view taken by the High Court regarding shampoo that it constitutes soap, in our opinion, is well founded. The High Court in this respect has referred to the following passage in the Encyclopaedia of Chemical Technology :.............. The soaps used for shampooing the hair are essentially the same as those described under soap. (See Cosmetics Vol. 6, P. 550 soap). They are available in several forms; bar, cake, liquid, powder (or granules) and jelly. Although there will undoubtedly always be numbers of individuals who will wash their hair with any cake of soap that may be at hand, the prepared liquid shampoos have rapidly risen to first place in the retail trade. The bars and cakes are shaved down, the granules are dissolved and the jellies are diluted, to prepare liquid shampoo of the desired concentrationThe High Court concluded from the above that Palmolive shampoo was soap covered by Entry 28 of Schedule C to the Act. We agree with the High Court in this respect and are of the opinion that shampoo is a kind of liquid soap. It has all the essential ingredients of a soap. It may be that the proportion of the ingredients of the liquid soap differ from those of a soap in the form of a cake but that fact would not alter the basic character of shampoo and take it out of the category of soaps.
|
Municipality Of Bhiwandi And Nizampur Vs. M/S. Kailash Sizing Works | to May.4. The Government of Maharashtra demolished a portion of Varala Dam in the month of May, 1963. In consequence the water stored in the lake was bound to pass through the nallah to the creek. The appellant commenced the work of laying cement slab across the nallah in about the second week of June, 1963. The centring work to support and settle the slab continued to remain in its position in the nallah till about the first week of July, 1963.5. The allegations against the appellant were these: First, the appellant prepared a plan for narrowing the nallah in front of the respondents shop without making any provision for the passage of additional rain water from the Varala lake catchment area.6. Second, the existence of the centring work and the cement slab across the nallah constituted a grave obstruction against the passage of rain water through the nallah.7. Third, the appellant neglected and failed to see that the passage of the nallah was kept free and unobstructed by work of construction and debris for providing a safe passage of the rain water which was likely to pass at the commencement of the monsoon season.8. Fourth, in the normal course of the monsoon season, there was heavy rain at Bhiwandi on the 5th, 6th and the 7th days of July, 1963. Because of the existence of centring work in the nallah, the slab, wild shrubs and debris, the water course was completely blocked and the rain water which collected in the catchment area beyond the dam and in the Bhiwandi and Nizampur area accumulated at the mouth of the slab work to dangerous heights. This resulted in the whole of the area adjoining and surrounding the nallah being flooded.9. The High Court found these facts:The appellant had knowledge in the month of April, 1963 of the demolition of the Varala Dam above a height of 6 feet above ground level. The appellant completed the laying of the slab between Teen Batti bridge and Habsanali bridge after April, 1963 with the knowledge of the demolition of the Varala Dam. The appellant narrowed the water-way near Teen Batti bridge to an extent that it was insufficient for discharge of water from the increased catchment area because of the demolition. The appellant with full knowledge of the consequences narrowed the water passage, put a slab on it and did not remove the centring at Lendi bridge. The appellant allowed accumulation of garbage and debris so as to obstruct the passage of water.10. The further findings are these.The nallah runs from south to north. The water carried by it flows on to the creek at the northern end of the nallah. There are five bridges over the nallah. The portion of the nallah which lies between Habsanali bridge and Lendi bridge was covered with concrete slab in l963. Because of heavy rain on the 4th, 5th and 6th days of July, 1963 water accumulated at the southern end of Habsanali bridge and entered the surrounding area. Water was two feet deep in the factory of the respondent This state of affairs continued for three days. The narrowing of the water-way and putting a slab on it at Habsanali bride was ill-timed. This work should have been commenced after the Varala Dam was re-constructed. If the appellant wanted to proceed with this work before the re-construction of the Dam sufficient water-way should have been provided for passage of water from a catchment area of 0.9 sq. miles providing for a rain fall of 3" per hour. The centring work should have been removed before the monsoon. In any case no trees, bushes, debris or garbage should have been allowed to be collected at the centring or the slab so as to obstruct the free passage of water. The retention of the centring and the negligence in not clearing the passage of debris was the principal cause of the flood.11. Section 167 of the Bombay District Municipal Act confers protection on the Municipality in respect of anything in good faith done or intended to be done. The expression "done in good faith" has been defined in the Bombay General Clauses Act, 1904 and in the General Clauses Act. to mean, done honestly whether done negligently or not. The question therefore is, whether the Municipality, in the present case, can be said to have acted honestly.12. In Jones v. Gordon, (1877) 2 App Cas 616 Lord Blackburn pointed out the distinction between the case of a person who was honestly blundering and careless, and the case of a person who has acted not honestly. An authority is not acting honestly where an authority has a suspicion that there is something wrong and does not make further enquiries. Being aware of possible harm to others, and acting in spite thereof, is acting with reckless disregard of consequences. It is worse than negligence, for negligent action is that, the consequences of which, the law presumes to be present m the mind of the negligent person, whether actually it was there or not. This legal presumption is drawn through the well known hypothetical reasonable man. Reckless disregard of consequences and male fides stand equal, where the actual state of mind of the actor is relevant. This is so in the eye of law, even if there might be variations in the degree of moral reproach deserved by recklessness and male fides.13. The Bombay, as also, the Central, General Clauses Acts, help only in so far as they lay down that negligence does not necessarily mean mala fides. Something more than negligence is necessary. But these Acts say "honestly" and so, for the interpretation of that word, we have explained the legal meanings above.14. In the facts of this case we hold that the defendant was aware of possible harm and yet cared to do nothing about it. The action was, therefore, reckless, and therefore in the eye of law male fide, and therefore unprotected by Section 167 of the Act. | 0[ds]11. Section 167 of the Bombay District Municipal Act confers protection on the Municipality in respect of anything in good faith done or intended to be done. The expression "done in good faith" has been defined in the Bombay General Clauses Act, 1904 and in the General Clauses Act. to mean, done honestly whether done negligently or not. The question therefore is,whether the Municipality, in the present case, can be said to have acted honestly.es v. Gordon, (1877) 2 App Cas 616Lord Blackburn pointed out the distinction between the case of a person who was honestly blundering and careless, and the case of a person who has acted not honestly. An authority is not acting honestly where an authority has a suspicion that there is something wrong and does not make further enquiries. Being aware of possible harm to others, and acting in spite thereof, is acting with reckless disregard of consequences. It is worse than negligence, for negligent action is that, the consequences of which, the law presumes to be present m the mind of the negligent person, whether actually it was there or not. This legal presumption is drawn through the well known hypothetical reasonable man. Reckless disregard of consequences and male fides stand equal, where the actual state of mind of the actor is relevant. This is so in the eye of law, even if there might be variations in the degree of moral reproach deserved by recklessness and male fides.13. The Bombay, as also, the Central, General Clauses Acts, help only in so far as they lay down that negligence does not necessarily mean mala fides. Something more than negligence is necessary. But these Acts say "honestly" and so, for the interpretation of that word, we have explained the legal meanings above.14. In the facts of this case we hold that the defendant was aware of possible harm and yet cared to do nothing about it. The action was, therefore, reckless, and therefore in the eye of law male fide, and therefore unprotected by Section 167 of the Act. | 0 | 1,255 | 395 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
to May.4. The Government of Maharashtra demolished a portion of Varala Dam in the month of May, 1963. In consequence the water stored in the lake was bound to pass through the nallah to the creek. The appellant commenced the work of laying cement slab across the nallah in about the second week of June, 1963. The centring work to support and settle the slab continued to remain in its position in the nallah till about the first week of July, 1963.5. The allegations against the appellant were these: First, the appellant prepared a plan for narrowing the nallah in front of the respondents shop without making any provision for the passage of additional rain water from the Varala lake catchment area.6. Second, the existence of the centring work and the cement slab across the nallah constituted a grave obstruction against the passage of rain water through the nallah.7. Third, the appellant neglected and failed to see that the passage of the nallah was kept free and unobstructed by work of construction and debris for providing a safe passage of the rain water which was likely to pass at the commencement of the monsoon season.8. Fourth, in the normal course of the monsoon season, there was heavy rain at Bhiwandi on the 5th, 6th and the 7th days of July, 1963. Because of the existence of centring work in the nallah, the slab, wild shrubs and debris, the water course was completely blocked and the rain water which collected in the catchment area beyond the dam and in the Bhiwandi and Nizampur area accumulated at the mouth of the slab work to dangerous heights. This resulted in the whole of the area adjoining and surrounding the nallah being flooded.9. The High Court found these facts:The appellant had knowledge in the month of April, 1963 of the demolition of the Varala Dam above a height of 6 feet above ground level. The appellant completed the laying of the slab between Teen Batti bridge and Habsanali bridge after April, 1963 with the knowledge of the demolition of the Varala Dam. The appellant narrowed the water-way near Teen Batti bridge to an extent that it was insufficient for discharge of water from the increased catchment area because of the demolition. The appellant with full knowledge of the consequences narrowed the water passage, put a slab on it and did not remove the centring at Lendi bridge. The appellant allowed accumulation of garbage and debris so as to obstruct the passage of water.10. The further findings are these.The nallah runs from south to north. The water carried by it flows on to the creek at the northern end of the nallah. There are five bridges over the nallah. The portion of the nallah which lies between Habsanali bridge and Lendi bridge was covered with concrete slab in l963. Because of heavy rain on the 4th, 5th and 6th days of July, 1963 water accumulated at the southern end of Habsanali bridge and entered the surrounding area. Water was two feet deep in the factory of the respondent This state of affairs continued for three days. The narrowing of the water-way and putting a slab on it at Habsanali bride was ill-timed. This work should have been commenced after the Varala Dam was re-constructed. If the appellant wanted to proceed with this work before the re-construction of the Dam sufficient water-way should have been provided for passage of water from a catchment area of 0.9 sq. miles providing for a rain fall of 3" per hour. The centring work should have been removed before the monsoon. In any case no trees, bushes, debris or garbage should have been allowed to be collected at the centring or the slab so as to obstruct the free passage of water. The retention of the centring and the negligence in not clearing the passage of debris was the principal cause of the flood.11. Section 167 of the Bombay District Municipal Act confers protection on the Municipality in respect of anything in good faith done or intended to be done. The expression "done in good faith" has been defined in the Bombay General Clauses Act, 1904 and in the General Clauses Act. to mean, done honestly whether done negligently or not. The question therefore is, whether the Municipality, in the present case, can be said to have acted honestly.12. In Jones v. Gordon, (1877) 2 App Cas 616 Lord Blackburn pointed out the distinction between the case of a person who was honestly blundering and careless, and the case of a person who has acted not honestly. An authority is not acting honestly where an authority has a suspicion that there is something wrong and does not make further enquiries. Being aware of possible harm to others, and acting in spite thereof, is acting with reckless disregard of consequences. It is worse than negligence, for negligent action is that, the consequences of which, the law presumes to be present m the mind of the negligent person, whether actually it was there or not. This legal presumption is drawn through the well known hypothetical reasonable man. Reckless disregard of consequences and male fides stand equal, where the actual state of mind of the actor is relevant. This is so in the eye of law, even if there might be variations in the degree of moral reproach deserved by recklessness and male fides.13. The Bombay, as also, the Central, General Clauses Acts, help only in so far as they lay down that negligence does not necessarily mean mala fides. Something more than negligence is necessary. But these Acts say "honestly" and so, for the interpretation of that word, we have explained the legal meanings above.14. In the facts of this case we hold that the defendant was aware of possible harm and yet cared to do nothing about it. The action was, therefore, reckless, and therefore in the eye of law male fide, and therefore unprotected by Section 167 of the Act.
### Response:
0
### Explanation:
11. Section 167 of the Bombay District Municipal Act confers protection on the Municipality in respect of anything in good faith done or intended to be done. The expression "done in good faith" has been defined in the Bombay General Clauses Act, 1904 and in the General Clauses Act. to mean, done honestly whether done negligently or not. The question therefore is,whether the Municipality, in the present case, can be said to have acted honestly.es v. Gordon, (1877) 2 App Cas 616Lord Blackburn pointed out the distinction between the case of a person who was honestly blundering and careless, and the case of a person who has acted not honestly. An authority is not acting honestly where an authority has a suspicion that there is something wrong and does not make further enquiries. Being aware of possible harm to others, and acting in spite thereof, is acting with reckless disregard of consequences. It is worse than negligence, for negligent action is that, the consequences of which, the law presumes to be present m the mind of the negligent person, whether actually it was there or not. This legal presumption is drawn through the well known hypothetical reasonable man. Reckless disregard of consequences and male fides stand equal, where the actual state of mind of the actor is relevant. This is so in the eye of law, even if there might be variations in the degree of moral reproach deserved by recklessness and male fides.13. The Bombay, as also, the Central, General Clauses Acts, help only in so far as they lay down that negligence does not necessarily mean mala fides. Something more than negligence is necessary. But these Acts say "honestly" and so, for the interpretation of that word, we have explained the legal meanings above.14. In the facts of this case we hold that the defendant was aware of possible harm and yet cared to do nothing about it. The action was, therefore, reckless, and therefore in the eye of law male fide, and therefore unprotected by Section 167 of the Act.
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Poohari Fakir Sadavarthy of Bondilipuram & Another Vs. Commissioner, Hindu Religious & Charitable Endowments | for the support of the pagoda of Jagannadhaswami in column 8 meant for the description of the inam again, appears to be an entry made under an erroneous impression. There was no temple in existence when the grant was made in about 1747 A.D.23. Exhibit P-55 is an extract from the Register of Inams in the village of Balaga of Chicacole taluk, dated August 13, 1881. It mentions, under the heading by whom granted and in what year, the grant was made by Rajah Narayana Gazapati raz Bahadur under orders of Alamgir Padsha on 14th May of Hizira 1171 corresponding with English years 1754 55. It is also noted: the Sanad granted is in existence. It is stated therein that as these lands appear from a former firman to have been granted to Sadavarti Mandass Bavaji for planting topes and raising buildings, they should be restored to him in pursuance of the long-standing right. This means that the firman, which was not forthcoming during the inam enquiry, dated from very early times. It must be noted again that this extract also describes the inam as Devadayam, i.e., dedicated to God. Again, clearly, this entry is wrong in view of the sanad which was in existence clearly stating that the lands were granted under a firman to Sadavarti Mandass Bavaji for planting topes and raising buildings and also in view of what is recorded in Exhibit P-12, a parvana of 1742 A. D. under the seal of Nawab Jafer All Khan. It records :"It has been proved that Mandas, the successor of Poohari (Poojari) Fakir Sadavarti has per endorsement full six kattis of land, free from assessment, in the village of Balaga and etc., villages of the said Haveli Sircar, fixed for the expenses of the coming and going Fakirs in accordance with the sanads of the previous rulers. Therefore in consideration of the blessings to follow, it has been confirmed as of yore."It was the result of this wrong view of the enquiry officer that the Inam Commissioner confirmed the grant free of quit rent so long as the service was kept up, presumably the service of the deity, as the distribution of charity would not be properly described as service.24. The fact that the Inam Commissioner treated the grant relating to Exhibit P-50 to be in support of Sadavarti and for the support of the temple of Sri Jagannadhaswami, would not make the grant for the purposes of the temple when the temple was itself not in existence at the time the grant was made and when a later sanad referring to it definitely stated that the original villages were granted for the purposes of charity. The observation of the Privy Council in Arunachellams case 46 Ind App 204 : (AIR 19I9 PC 62) that in the absence of the original grant the Inam Register is of great evidentiary value, does not mean that the entry or entries in any particular column or columns be accepted at their face value without giving due consideration to other matters recorded in the entry itself. We have already stated that the divine service referred to in this entry does not refer to any religious worship but to the prayers to be offered by the grantee for the preservation of the State.25. We do not find anything on record to support the observations in the High Court judgment that the Bavajee, with the consent of the Ruler for the time being constructed a temple and appropriated the income for carrying out the worship of the temple. No document states that the temple was constructed by the Bavajee after obtaining the consent of the ruler for the time being. Exhibits P-52 and P-53 just mentioned that the trustees built a temple of Sri Jagannadhaswami. The expression trustees refers to the trustees of the Sadavarti institution and not to the trustees of the temple as such. There is nothing in these documents to support the view that the temple was built with the consent of the ruler for the time being.26-32. Their Lordships then considered the evidence in the case and continued as under :33. We need not consider the statements of the witnesses with respect to the features associated with the public temple and which are said to be absent in the temple in suit. It is admitted by the respondents witness that there is a Tulsi plant before the shrine. It is strenuously urged for the appellants that no public temple has a Tulsi Kotta, and this contention seems to find support from the statement made by the respondents witness in re-examination that generally, in Oriya temples no flag-staffs are located and Tulsi plants are grown instead. The description of the temple with respect to its construction, equipment, practices, observances and the forms of worship are not inconsistent with the inference from the other evidence that the temple is not a public temple.34. The statement of the respondents witness that generally Oriya temples have no flag-staffs and have Tulsi plants has significance in one other connection also. It was said in Mundacheri Koman v. Achuthan Nair, 61 Ind App 405 at p. 408: (AIR 1934 PC 230 at p.231) that in the greater part of the Madras Presidency, where private temples were practically unknown, the presumption is that temples and their endowments from public charitable trusts. The presumption is certainly rebuttable. The evidence in this case sufficiently rebuts it. The temple is situate at a place which was practically at the boundary of the Madras Presidency, and close to the common boundary between that Presidency and Orissa. The presumption with respect to the temples in the Madras Presidency, therefore, will be a very weak one with respect to the temple so situated.35. We are therefore of opinion that the temple in suit is not a temple as defined in the Act as it is not used as of right by the Hindu community, or any section thereof, as a place of religious worship. | 1[ds]12. It is also a matter for surprise that no independent grant to this temple was made subsequent to its coming into existence. Some one religiously and charitably disposed could have thought of endowing some property to this public temple erected by the Head of a well-known institution in that part of the country, where, it has been held judicially, there is a presumption of a temple being a public temple. We may make it clear that among the documents referred to, we are not at the moment including entries in the Inam registers. It follows from an examination of the various documents of the period between 1698 and l803 A.D., that the various endowments were for the Fakir or Bavajee who ran the Sadavarti institution and that none of the grants was for the temple or even for the Sadavarti institution itself, it being always in the name of the Bavajee in charge of that institution.It is clear from the fact that the grant was considered a charitable grant that the grant was not taken to be for the purposes of the temple, but was taken to be grant for the purposes Sadavarti. This is also clear from the statement of Bartudoss Bavaji that it is only a part of the proceeds which is spent on the temple and not a major portion of the proceeds, as his statement is to the effect that the proceeds are appropriated to the expenses attendant on the temple to some extent. There is no suggestion that the temple was in existence in 1739 A.D., when the grant was made. This makes it clear that no grant could have been made for the expenses of the temple and that a small portion of the proceeds was naturally spent on the temple by the Bavaji after the temple has been constructed. Any statement in these entries about the grant being both for Sadavarti and for the expenses of the temple appears to be due to the wrong inference of the person making the enquiry. He could easily commit such an error on account of the existence of a temple at the time of the enquiry and on account of the expression divine service. The divine service really meant, as would appear from the expression in the other documents of the period 1698 to 1802 A.D. service by way of prayer for the stability and continuity of the State.16. The expression that the grant was hereditary also supports the conclusion that the grant was to the Bavajee personally and not to the temple even if the temple existed at the time of the original grant. In fact, the sanad granted by Sectaram Ranzi Maharaja and produced before the enquiry officers explicitly stated that the proceeds of the village were to be appropriated for Sadavarti.The fact that the Inam Commissioner treated the grant relating to Exhibit P-50 to be in support of Sadavarti and for the support of the temple of Sri Jagannadhaswami, would not make the grant for the purposes of the temple when the temple was itself not in existence at the time the grant was made and when a later sanad referring to it definitely stated that the original villages were granted for the purposes of charity. The observation of the Privy Council in Arunachellams case 46 Ind App 204 : (AIR 19I9 PC 62) that in the absence of the original grant the Inam Register is of great evidentiary value, does not mean that the entry or entries in any particular column or columns be accepted at their face value without giving due consideration to other matters recorded in the entry itself. We have already stated that the divine service referred to in this entry does not refer to any religious worship but to the prayers to be offered by the grantee for the preservation of the State.25. We do not find anything on record to support the observations in the High Court judgment that the Bavajee, with the consent of the Ruler for the time being constructed a temple and appropriated the income for carrying out the worship of the temple. No document states that the temple was constructed by the Bavajee after obtaining the consent of the ruler for the time being. Exhibits P-52 and P-53 just mentioned that the trustees built a temple of Sri Jagannadhaswami. The expression trustees refers to the trustees of the Sadavarti institution and not to the trustees of the temple as such. There is nothing in these documents to support the view that the temple was built with the consent of the ruler for the time being.We need not consider the statements of the witnesses with respect to the features associated with the public temple and which are said to be absent in the temple in suit. It is admitted by the respondents witness that there is a Tulsi plant before the shrine. It is strenuously urged for the appellants that no public temple has a Tulsi Kotta, and this contention seems to find support from the statement made by the respondents witness in re-examination that generally, in Oriya temples no flag-staffs are located and Tulsi plants are grown instead. The description of the temple with respect to its construction, equipment, practices, observances and the forms of worship are not inconsistent with the inference from the other evidence that the temple is not a public temple.We are therefore of opinion that the temple in suit is not a temple as defined in the Act as it is not used as of right by the Hindu community, or any section thereof, as a place of religious worship. | 1 | 5,177 | 992 | ### 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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for the support of the pagoda of Jagannadhaswami in column 8 meant for the description of the inam again, appears to be an entry made under an erroneous impression. There was no temple in existence when the grant was made in about 1747 A.D.23. Exhibit P-55 is an extract from the Register of Inams in the village of Balaga of Chicacole taluk, dated August 13, 1881. It mentions, under the heading by whom granted and in what year, the grant was made by Rajah Narayana Gazapati raz Bahadur under orders of Alamgir Padsha on 14th May of Hizira 1171 corresponding with English years 1754 55. It is also noted: the Sanad granted is in existence. It is stated therein that as these lands appear from a former firman to have been granted to Sadavarti Mandass Bavaji for planting topes and raising buildings, they should be restored to him in pursuance of the long-standing right. This means that the firman, which was not forthcoming during the inam enquiry, dated from very early times. It must be noted again that this extract also describes the inam as Devadayam, i.e., dedicated to God. Again, clearly, this entry is wrong in view of the sanad which was in existence clearly stating that the lands were granted under a firman to Sadavarti Mandass Bavaji for planting topes and raising buildings and also in view of what is recorded in Exhibit P-12, a parvana of 1742 A. D. under the seal of Nawab Jafer All Khan. It records :"It has been proved that Mandas, the successor of Poohari (Poojari) Fakir Sadavarti has per endorsement full six kattis of land, free from assessment, in the village of Balaga and etc., villages of the said Haveli Sircar, fixed for the expenses of the coming and going Fakirs in accordance with the sanads of the previous rulers. Therefore in consideration of the blessings to follow, it has been confirmed as of yore."It was the result of this wrong view of the enquiry officer that the Inam Commissioner confirmed the grant free of quit rent so long as the service was kept up, presumably the service of the deity, as the distribution of charity would not be properly described as service.24. The fact that the Inam Commissioner treated the grant relating to Exhibit P-50 to be in support of Sadavarti and for the support of the temple of Sri Jagannadhaswami, would not make the grant for the purposes of the temple when the temple was itself not in existence at the time the grant was made and when a later sanad referring to it definitely stated that the original villages were granted for the purposes of charity. The observation of the Privy Council in Arunachellams case 46 Ind App 204 : (AIR 19I9 PC 62) that in the absence of the original grant the Inam Register is of great evidentiary value, does not mean that the entry or entries in any particular column or columns be accepted at their face value without giving due consideration to other matters recorded in the entry itself. We have already stated that the divine service referred to in this entry does not refer to any religious worship but to the prayers to be offered by the grantee for the preservation of the State.25. We do not find anything on record to support the observations in the High Court judgment that the Bavajee, with the consent of the Ruler for the time being constructed a temple and appropriated the income for carrying out the worship of the temple. No document states that the temple was constructed by the Bavajee after obtaining the consent of the ruler for the time being. Exhibits P-52 and P-53 just mentioned that the trustees built a temple of Sri Jagannadhaswami. The expression trustees refers to the trustees of the Sadavarti institution and not to the trustees of the temple as such. There is nothing in these documents to support the view that the temple was built with the consent of the ruler for the time being.26-32. Their Lordships then considered the evidence in the case and continued as under :33. We need not consider the statements of the witnesses with respect to the features associated with the public temple and which are said to be absent in the temple in suit. It is admitted by the respondents witness that there is a Tulsi plant before the shrine. It is strenuously urged for the appellants that no public temple has a Tulsi Kotta, and this contention seems to find support from the statement made by the respondents witness in re-examination that generally, in Oriya temples no flag-staffs are located and Tulsi plants are grown instead. The description of the temple with respect to its construction, equipment, practices, observances and the forms of worship are not inconsistent with the inference from the other evidence that the temple is not a public temple.34. The statement of the respondents witness that generally Oriya temples have no flag-staffs and have Tulsi plants has significance in one other connection also. It was said in Mundacheri Koman v. Achuthan Nair, 61 Ind App 405 at p. 408: (AIR 1934 PC 230 at p.231) that in the greater part of the Madras Presidency, where private temples were practically unknown, the presumption is that temples and their endowments from public charitable trusts. The presumption is certainly rebuttable. The evidence in this case sufficiently rebuts it. The temple is situate at a place which was practically at the boundary of the Madras Presidency, and close to the common boundary between that Presidency and Orissa. The presumption with respect to the temples in the Madras Presidency, therefore, will be a very weak one with respect to the temple so situated.35. We are therefore of opinion that the temple in suit is not a temple as defined in the Act as it is not used as of right by the Hindu community, or any section thereof, as a place of religious worship.
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12. It is also a matter for surprise that no independent grant to this temple was made subsequent to its coming into existence. Some one religiously and charitably disposed could have thought of endowing some property to this public temple erected by the Head of a well-known institution in that part of the country, where, it has been held judicially, there is a presumption of a temple being a public temple. We may make it clear that among the documents referred to, we are not at the moment including entries in the Inam registers. It follows from an examination of the various documents of the period between 1698 and l803 A.D., that the various endowments were for the Fakir or Bavajee who ran the Sadavarti institution and that none of the grants was for the temple or even for the Sadavarti institution itself, it being always in the name of the Bavajee in charge of that institution.It is clear from the fact that the grant was considered a charitable grant that the grant was not taken to be for the purposes of the temple, but was taken to be grant for the purposes Sadavarti. This is also clear from the statement of Bartudoss Bavaji that it is only a part of the proceeds which is spent on the temple and not a major portion of the proceeds, as his statement is to the effect that the proceeds are appropriated to the expenses attendant on the temple to some extent. There is no suggestion that the temple was in existence in 1739 A.D., when the grant was made. This makes it clear that no grant could have been made for the expenses of the temple and that a small portion of the proceeds was naturally spent on the temple by the Bavaji after the temple has been constructed. Any statement in these entries about the grant being both for Sadavarti and for the expenses of the temple appears to be due to the wrong inference of the person making the enquiry. He could easily commit such an error on account of the existence of a temple at the time of the enquiry and on account of the expression divine service. The divine service really meant, as would appear from the expression in the other documents of the period 1698 to 1802 A.D. service by way of prayer for the stability and continuity of the State.16. The expression that the grant was hereditary also supports the conclusion that the grant was to the Bavajee personally and not to the temple even if the temple existed at the time of the original grant. In fact, the sanad granted by Sectaram Ranzi Maharaja and produced before the enquiry officers explicitly stated that the proceeds of the village were to be appropriated for Sadavarti.The fact that the Inam Commissioner treated the grant relating to Exhibit P-50 to be in support of Sadavarti and for the support of the temple of Sri Jagannadhaswami, would not make the grant for the purposes of the temple when the temple was itself not in existence at the time the grant was made and when a later sanad referring to it definitely stated that the original villages were granted for the purposes of charity. The observation of the Privy Council in Arunachellams case 46 Ind App 204 : (AIR 19I9 PC 62) that in the absence of the original grant the Inam Register is of great evidentiary value, does not mean that the entry or entries in any particular column or columns be accepted at their face value without giving due consideration to other matters recorded in the entry itself. We have already stated that the divine service referred to in this entry does not refer to any religious worship but to the prayers to be offered by the grantee for the preservation of the State.25. We do not find anything on record to support the observations in the High Court judgment that the Bavajee, with the consent of the Ruler for the time being constructed a temple and appropriated the income for carrying out the worship of the temple. No document states that the temple was constructed by the Bavajee after obtaining the consent of the ruler for the time being. Exhibits P-52 and P-53 just mentioned that the trustees built a temple of Sri Jagannadhaswami. The expression trustees refers to the trustees of the Sadavarti institution and not to the trustees of the temple as such. There is nothing in these documents to support the view that the temple was built with the consent of the ruler for the time being.We need not consider the statements of the witnesses with respect to the features associated with the public temple and which are said to be absent in the temple in suit. It is admitted by the respondents witness that there is a Tulsi plant before the shrine. It is strenuously urged for the appellants that no public temple has a Tulsi Kotta, and this contention seems to find support from the statement made by the respondents witness in re-examination that generally, in Oriya temples no flag-staffs are located and Tulsi plants are grown instead. The description of the temple with respect to its construction, equipment, practices, observances and the forms of worship are not inconsistent with the inference from the other evidence that the temple is not a public temple.We are therefore of opinion that the temple in suit is not a temple as defined in the Act as it is not used as of right by the Hindu community, or any section thereof, as a place of religious worship.
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The Chairman & Mng.Dir., Tnhb Vs. S. Saraswathy | of 1998, his legal representatives do not have the locus to contend that the order dated 21-8-1990 passed by this Court in SLPs (C) Nos. 11353-55 of 1988 had the effect of nullifying the entire acquisition." 11. We are respectfully in accord with the observations of Coordinate Benches that unless the Declaration under Section 6 or the Notification under Section 4 of the Act is not explicitly quashed in toto or in its wholeness by the Court, the benefits of relief granted by the Court would be effective only qua the parties before it. As already adumbrated above, at the time the Appeal of A. S. Naidu came to be decided, the three year limitation period to publish a declaration under Section 6 of the Act had already expired, making it impossible for the Government to complete a fresh process culminating in another declaration; and it was for this reason that the acquisition was quashed by the Court.12. It has been repeatedly reiterated by this Court that those who have missed the boat in challenging the acquisition proceedings, who sat idle and have let the grass grow under their feet cannot, thereafter, be permitted to jump on the bandwagon of others who entered the portals of the Court at the appropriate time and thereafter obtained favourable orders. Significantly, in Chandrasekaran the Court was alive to the reality of utilization of large chunks of land by the State for housing scheme; and in this scenario, it was obviously and rightly reluctant and facially hesitant to quash the acquisition proceedings in toto, knowing that that would result in grave consequences to society. In this analysis, the Respondents including their vendor, P. Velu, cannot be permitted to take any advantage of the Orders passed by this Court in A. S. Naidu. 13. There could be cases however, where the acquisition proceedings are deracinated, annulled and quashed in toto. Such grounds could include, to wit: absence of public purpose; non publication of the substance of the notification under Section 4 as required, denuding the rights of the landowners; complete lack of consideration of the objections by the authorities, thus obscuring the public purpose; fraudulent or mala fide or colourable exercise of the power of eminent domain behind the smokescreen of public purpose; inherent defect or illegality in the issuance of the notification under Section 4; acquiring of land for a private company by illegally bypassing the extant statutory procedure etc. 14. Even if we assume that the Order passed by this Court swept away the entire acquisition proceedings, the claim of the Respondents is still unsustainable. In the Judgment dated 08.01.1988 passed by the High Court in the case of A. S. Naidu, it has been clarified that “only those persons, who are the owners on the date of Section 4(1) Notification alone can question the validity of the acquisition…when the property was already notified for acquisition, if the petitioners had come to purchase the property, they cannot have any right to agitate with regard to procedural violation.” There is thus no confusion that the relief of quashing of the Declaration under Section 6 of the Act was expressly limited to some while being plainly denied to others, signifying thereby, that the Declaration under Section 6 was left untouched in the other cases. In A. S. Naidu, this Court annulled the Notification issued under Section 4 on the premises of limitation. This would mean that the rest of the acquisition proceedings was left untouched by this Court in A. S. Naidu.15. The second factor, detaching the case of the contesting Respondents even farther, is that since the Respondents had purchased the suit land after the Award had been passed and possession of the land had been taken by the State, they could not have acquired any rights against the State. P. Velu did not bring down the acquisition proceedings qua his land, but on the contrary, by accepting compensation, had manifested his acceptance of the Award. In these circumstances, once the land stood vested in the State under Section 16 of the Act, P. Velu and his vendees, namely the Respondents, could not have created and engineered rights or interests in the property against the State, except the right of seeking and receiving enhanced compensation. We are mindful that the Land Acquisition Act, 1894 as applicable to the State of Tamil Nadu does not specifically preclude the land owners from entering into sale transactions during an ongoing acquisition proceeding. But as long as the acquisition proceedings are not invalidated, any agreement creating or altering or extinguishing rights with respect to the land under acquisition will not be effective or efficacious against the State. 16. As we have noted above, the additional case of the Respondents is that A. S. Naidu, as a co-owner or even otherwise, had challenged the acquisition proceedings qua the entire Survey No. 271 on behalf of himself and P. Velu also. We are sorry to record that we have found not a grain of evidence supporting their specious claim. The cases of A. Viswanatha Pillai v. The Special Tahsildar for Land Acquisition No. IV (1991) 4 SCC 17 and Jalandhar Improvement Trust v. State of Punjab (2003) 1 SCC 526 relied upon by them in this context, where reliefs were granted to the co-owners, are distinguishable from the facts obtaining in the instant case. The Respondents or even P. Velu cannot assert to be co-owner with A. S. Naidu merely because they happened to own plots in the larger or main Survey No. 271 in the backdrop of that Survey having been fractured into smaller Survey numbers, or even because an approved layout plan had been granted of the larger Survey number. Nor do we think that owning a plot in the same survey number ipso facto authorizes A.S. Naidu to litigate on behalf of P. Velu also. The writ petition of A. S. Naidu is also conspicuous in that it does not lay any claim to represent P. Velu. | 1[ds]11. We are respectfully in accord with the observations of Coordinate Benches that unless the Declaration under Section 6 or the Notification under Section 4 of the Act is not explicitly quashed in toto or in its wholeness by the Court, the benefits of relief granted by the Court would be effective only qua the parties before it. As already adumbrated above, at the time the Appeal of A. S. Naidu came to be decided, the three year limitation period to publish a declaration under Section 6 of the Act had already expired, making it impossible for the Government to complete a fresh process culminating in another declaration; and it was for this reason that the acquisition was quashed by the Court.12. It has been repeatedly reiterated by this Court that those who have missed the boat in challenging the acquisition proceedings, who sat idle and have let the grass grow under their feet cannot, thereafter, be permitted to jump on the bandwagon of others who entered the portals of the Court at the appropriate time and thereafter obtained favourable orders. Significantly, in Chandrasekaran the Court was alive to the reality of utilization of large chunks of land by the State for housing scheme; and in this scenario, it was obviously and rightly reluctant and facially hesitant to quash the acquisition proceedings in toto, knowing that that would result in grave consequences to society. In this analysis, the Respondents including their vendor, P. Velu, cannot be permitted to take any advantage of the Orders passed by this Court in A. S. Naidu.Even if we assume that the Order passed by this Court swept away the entire acquisition proceedings, the claim of the Respondents is still unsustainable. In the Judgment dated 08.01.1988 passed by the High Court in the case of A. S. Naidu, it has been clarified thatthose persons, who are the owners on the date of Section 4(1) Notification alone can question the validity of the acquisition…when the property was already notified for acquisition, if the petitioners had come to purchase the property, they cannot have any right to agitate with regard to proceduralThere is thus no confusion that the relief of quashing of the Declaration under Section 6 of the Act was expressly limited to some while being plainly denied to others, signifying thereby, that the Declaration under Section 6 was left untouched in the other cases. In A. S. Naidu, this Court annulled the Notification issued under Section 4 on the premises of limitation. This would mean that the rest of the acquisition proceedings was left untouched by this Court in A. S. Naidu.15. The second factor, detaching the case of the contesting Respondents even farther, is that since the Respondents had purchased the suit land after the Award had been passed and possession of the land had been taken by the State, they could not have acquired any rights against the State. P. Velu did not bring down the acquisition proceedings qua his land, but on the contrary, by accepting compensation, had manifested his acceptance of the Award. In these circumstances, once the land stood vested in the State under Section 16 of the Act, P. Velu and his vendees, namely the Respondents, could not have created and engineered rights or interests in the property against the State, except the right of seeking and receiving enhanced compensation. We are mindful that the Land Acquisition Act, 1894 as applicable to the State of Tamil Nadu does not specifically preclude the land owners from entering into sale transactions during an ongoing acquisition proceeding. But as long as the acquisition proceedings are not invalidated, any agreement creating or altering or extinguishing rights with respect to the land under acquisition will not be effective or efficacious against theRespondents or even P. Velu cannot assert to bewith A. S. Naidu merely because they happened to own plots in the larger or main Survey No. 271 in the backdrop of that Survey having been fractured into smaller Survey numbers, or even because an approved layout plan had been granted of the larger Survey number. Nor do we think that owning a plot in the same survey number ipso facto authorizes A.S. Naidu to litigate on behalf of P. Velu also. The writ petition of A. S. Naidu is also conspicuous in that it does not lay any claim to represent P. Velu. | 1 | 4,686 | 795 | ### 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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of 1998, his legal representatives do not have the locus to contend that the order dated 21-8-1990 passed by this Court in SLPs (C) Nos. 11353-55 of 1988 had the effect of nullifying the entire acquisition." 11. We are respectfully in accord with the observations of Coordinate Benches that unless the Declaration under Section 6 or the Notification under Section 4 of the Act is not explicitly quashed in toto or in its wholeness by the Court, the benefits of relief granted by the Court would be effective only qua the parties before it. As already adumbrated above, at the time the Appeal of A. S. Naidu came to be decided, the three year limitation period to publish a declaration under Section 6 of the Act had already expired, making it impossible for the Government to complete a fresh process culminating in another declaration; and it was for this reason that the acquisition was quashed by the Court.12. It has been repeatedly reiterated by this Court that those who have missed the boat in challenging the acquisition proceedings, who sat idle and have let the grass grow under their feet cannot, thereafter, be permitted to jump on the bandwagon of others who entered the portals of the Court at the appropriate time and thereafter obtained favourable orders. Significantly, in Chandrasekaran the Court was alive to the reality of utilization of large chunks of land by the State for housing scheme; and in this scenario, it was obviously and rightly reluctant and facially hesitant to quash the acquisition proceedings in toto, knowing that that would result in grave consequences to society. In this analysis, the Respondents including their vendor, P. Velu, cannot be permitted to take any advantage of the Orders passed by this Court in A. S. Naidu. 13. There could be cases however, where the acquisition proceedings are deracinated, annulled and quashed in toto. Such grounds could include, to wit: absence of public purpose; non publication of the substance of the notification under Section 4 as required, denuding the rights of the landowners; complete lack of consideration of the objections by the authorities, thus obscuring the public purpose; fraudulent or mala fide or colourable exercise of the power of eminent domain behind the smokescreen of public purpose; inherent defect or illegality in the issuance of the notification under Section 4; acquiring of land for a private company by illegally bypassing the extant statutory procedure etc. 14. Even if we assume that the Order passed by this Court swept away the entire acquisition proceedings, the claim of the Respondents is still unsustainable. In the Judgment dated 08.01.1988 passed by the High Court in the case of A. S. Naidu, it has been clarified that “only those persons, who are the owners on the date of Section 4(1) Notification alone can question the validity of the acquisition…when the property was already notified for acquisition, if the petitioners had come to purchase the property, they cannot have any right to agitate with regard to procedural violation.” There is thus no confusion that the relief of quashing of the Declaration under Section 6 of the Act was expressly limited to some while being plainly denied to others, signifying thereby, that the Declaration under Section 6 was left untouched in the other cases. In A. S. Naidu, this Court annulled the Notification issued under Section 4 on the premises of limitation. This would mean that the rest of the acquisition proceedings was left untouched by this Court in A. S. Naidu.15. The second factor, detaching the case of the contesting Respondents even farther, is that since the Respondents had purchased the suit land after the Award had been passed and possession of the land had been taken by the State, they could not have acquired any rights against the State. P. Velu did not bring down the acquisition proceedings qua his land, but on the contrary, by accepting compensation, had manifested his acceptance of the Award. In these circumstances, once the land stood vested in the State under Section 16 of the Act, P. Velu and his vendees, namely the Respondents, could not have created and engineered rights or interests in the property against the State, except the right of seeking and receiving enhanced compensation. We are mindful that the Land Acquisition Act, 1894 as applicable to the State of Tamil Nadu does not specifically preclude the land owners from entering into sale transactions during an ongoing acquisition proceeding. But as long as the acquisition proceedings are not invalidated, any agreement creating or altering or extinguishing rights with respect to the land under acquisition will not be effective or efficacious against the State. 16. As we have noted above, the additional case of the Respondents is that A. S. Naidu, as a co-owner or even otherwise, had challenged the acquisition proceedings qua the entire Survey No. 271 on behalf of himself and P. Velu also. We are sorry to record that we have found not a grain of evidence supporting their specious claim. The cases of A. Viswanatha Pillai v. The Special Tahsildar for Land Acquisition No. IV (1991) 4 SCC 17 and Jalandhar Improvement Trust v. State of Punjab (2003) 1 SCC 526 relied upon by them in this context, where reliefs were granted to the co-owners, are distinguishable from the facts obtaining in the instant case. The Respondents or even P. Velu cannot assert to be co-owner with A. S. Naidu merely because they happened to own plots in the larger or main Survey No. 271 in the backdrop of that Survey having been fractured into smaller Survey numbers, or even because an approved layout plan had been granted of the larger Survey number. Nor do we think that owning a plot in the same survey number ipso facto authorizes A.S. Naidu to litigate on behalf of P. Velu also. The writ petition of A. S. Naidu is also conspicuous in that it does not lay any claim to represent P. Velu.
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11. We are respectfully in accord with the observations of Coordinate Benches that unless the Declaration under Section 6 or the Notification under Section 4 of the Act is not explicitly quashed in toto or in its wholeness by the Court, the benefits of relief granted by the Court would be effective only qua the parties before it. As already adumbrated above, at the time the Appeal of A. S. Naidu came to be decided, the three year limitation period to publish a declaration under Section 6 of the Act had already expired, making it impossible for the Government to complete a fresh process culminating in another declaration; and it was for this reason that the acquisition was quashed by the Court.12. It has been repeatedly reiterated by this Court that those who have missed the boat in challenging the acquisition proceedings, who sat idle and have let the grass grow under their feet cannot, thereafter, be permitted to jump on the bandwagon of others who entered the portals of the Court at the appropriate time and thereafter obtained favourable orders. Significantly, in Chandrasekaran the Court was alive to the reality of utilization of large chunks of land by the State for housing scheme; and in this scenario, it was obviously and rightly reluctant and facially hesitant to quash the acquisition proceedings in toto, knowing that that would result in grave consequences to society. In this analysis, the Respondents including their vendor, P. Velu, cannot be permitted to take any advantage of the Orders passed by this Court in A. S. Naidu.Even if we assume that the Order passed by this Court swept away the entire acquisition proceedings, the claim of the Respondents is still unsustainable. In the Judgment dated 08.01.1988 passed by the High Court in the case of A. S. Naidu, it has been clarified thatthose persons, who are the owners on the date of Section 4(1) Notification alone can question the validity of the acquisition…when the property was already notified for acquisition, if the petitioners had come to purchase the property, they cannot have any right to agitate with regard to proceduralThere is thus no confusion that the relief of quashing of the Declaration under Section 6 of the Act was expressly limited to some while being plainly denied to others, signifying thereby, that the Declaration under Section 6 was left untouched in the other cases. In A. S. Naidu, this Court annulled the Notification issued under Section 4 on the premises of limitation. This would mean that the rest of the acquisition proceedings was left untouched by this Court in A. S. Naidu.15. The second factor, detaching the case of the contesting Respondents even farther, is that since the Respondents had purchased the suit land after the Award had been passed and possession of the land had been taken by the State, they could not have acquired any rights against the State. P. Velu did not bring down the acquisition proceedings qua his land, but on the contrary, by accepting compensation, had manifested his acceptance of the Award. In these circumstances, once the land stood vested in the State under Section 16 of the Act, P. Velu and his vendees, namely the Respondents, could not have created and engineered rights or interests in the property against the State, except the right of seeking and receiving enhanced compensation. We are mindful that the Land Acquisition Act, 1894 as applicable to the State of Tamil Nadu does not specifically preclude the land owners from entering into sale transactions during an ongoing acquisition proceeding. But as long as the acquisition proceedings are not invalidated, any agreement creating or altering or extinguishing rights with respect to the land under acquisition will not be effective or efficacious against theRespondents or even P. Velu cannot assert to bewith A. S. Naidu merely because they happened to own plots in the larger or main Survey No. 271 in the backdrop of that Survey having been fractured into smaller Survey numbers, or even because an approved layout plan had been granted of the larger Survey number. Nor do we think that owning a plot in the same survey number ipso facto authorizes A.S. Naidu to litigate on behalf of P. Velu also. The writ petition of A. S. Naidu is also conspicuous in that it does not lay any claim to represent P. Velu.
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Board Of Directors Of Andhra Pradesh Co-Operative Centra Vs. Chittor Primary Co-Operative Land Mortgagebank Ltd. Etc | which power to supervise is to include the power of appointment, transfer and disciplinary action. It is only where what is not included in a particular term as generally understood or where there is some doubt in respect of any particular matter being included, that the Legislature specified it by including that matter.The supervisory power in respect of the employees of the mortgage banks does not include the power to transfer an employee from one mortgage bank to another creating thereby a contract of service with a different employer. The word transfer, must be read as a transfer from one branch of the same mortgage bank to another of its branch. The learned Advocate for the appellants stated that the mortgage banks have no branches. We would not, however, venture to say so. As pointed out by the learned Advocate for the first respondent in Civil Appeal No. 2231 of 1972 that By-law 20 of the Model Bye-Laws of Co-operative Land Mortgage Bank Ltd. provides for maintaining a record of service by the Bank in respect of each employeein which all changes affecting rank, emoluments, transfers and other allied matters shall be noted in the register under the attestation of the Secretary. This provision shows that the Bye-laws envisage a transfer of an employee from one branch to another of a mortgage bank. This bye-law is consistent with Section 115 of the Act which confers a supervisory power in respect of transfer of an employee from one branch to another of the mortgage bank and not from one mortgage bank to another.8. The learned Advocate for the appellants contends that it is the Central Mortgage Bank which advances the funds to its members, namely, the mortgage banks and the responsibility is on the Central Mortgage Bank to see that the amounts advanced by the member banks are collected and the loans advanced by it are properly secured. While no doubt the Central Mortgage Bank may be concerned with securing its loans to the mortgage banks, the provisions of the Act do not confer upon the Central Mortgate Bank the power to collect any loans advanced by the member banks i.e. the mortgage banks. The security given to the mortgage banks in respect of the loans advanced by them no doubt is deemed to have been transferred to the Central Mortgage Bank, but that is only by way of securing the monies advanced by the Central Mortgage Bank to the mortgage banks. Nonetheless, as we have seen earlier, the duty to collect the loan is upon the mortgage banks and notwithstanding the deemed transfer to the Central Mortgage Bank of any property mortgaged to the mortgage banks, the amount due to the mortgage banks is payable to the mortgage banks only and not to the Central Mortgage Bank. Unless there is any specific provision in the Act which directly creates a contractual liability between the Central Mortgage Bank and the borrowers from the mortgage banks, the liability of the borrows for payment of loans advanced to them is only to the mortgage banks which actually advanced the loans to them. The borrowers have no liability to the Central Mortgage Bank.9. The Legislature apparently realised the absence of any power in the Act, and therefore provided for creation of the common cadre of employees when it enacted Section 116 A empowering the Registrar to create a common cadre of employees for any class of societies if he considers it necessary in the interest of the co-operative movement to do so. This Section reads as under :S. 116A - "(1) Notwithstanding anything in this Act where the Registrar, in the interest of the co-operative movement, considers that the creation of a common cadre of employees for any class of societies is necessary, he may, constitute an appointment committee or authorise one or more federal societies to which such class of societies is affiliated, to exercise the power of appointment, transfer and disciplinary action in respect of such categories of employees of that class of societies as may be specified by him and make such regulations as may be necessary for carrying out the said purpose. Where, such appointment committee is constituted or federal society is authorised by the Registrar, the affiliated societies shall not have powers to deal with such categories of employees except to the extent the regulation may permit.(2) The Registrar shall have power to require the affiliated societies to make contribution of such sum every year towards expenditure, as the appointment committee or federal society is likely to incur or has incurred for the purpose. If any society fails to pay the said sum to such authority as maybe specified by the Registrar and within the time fixed by him, the Registrar may on the application of the authority, and after such enquiry as he may consider necessary, make an order requiring the society to pay the amount, and every such order shall be enforceable against the society as if it were a decision under Section 62".The power of the Registrar, it will be noticed, is to create a common cadre of employees for any class of societies. The power, therefore, is of a general nature and is applicable to the mortgage banks as well as to the other societies registered as societies under the Act. Section 116-A also empowers the Registrar to require the affiliated societies to make contribution of such sum every year towards expenditure as may be incurred for the purposes of creation of any common cadre and make such payment enforceable.In our view the High Court is right in holding that when a centralised service or any cadre of employees of the mortgage banks cannot be created by the Board in exercise of its power under Section 115 of the Act, Rule 70 cannot vest such power in the Board. In this view, Rule 70 is ultra vires the rule-making power of the State under sub-s. (1) of Section 130 read with section of the Act. | 0[ds]6. We have set out some of the relevant provisions to show that there is nothing in the Act which empowers the Central Mortgage Bank, notwithstanding the fact it provides funds to the mortgage banks to make collection of the loans advanced by the mortgage banks. The rule making power conferred on the Government for carrying out all or any of the purposes of the Act must be confined to such of the purposes as are enumerated or indicated in the preamble or in any of the provisions of the Act. The only provision to which a reference has been made specifically as empowering the Board of Directors of the Central Mortgage Bank to constitute a centralised service for the mortgage bank is Section 115 of the Act. A careful reading of Section 115, however, does not justify the contention that the Central Mortgage Bank either has the power directly to collect the loans and advances given by the member banks, namely, the mortgage banks, or to create a centralised cadre of service from among the employees of the mortgage banks which are members of the Central Mortgage Bank. That section merely confers power of supervision on the Board of the Central Mortgage Bank over the mortgage banks which power includes the power of appointment, transfer and disciplinary action in respect of the employees of the mortgage banks. It may be that some questions may be raised in respect of the actions of the mortgage banks in the matter of appointment, transfer and disciplinary actions of its employees. Whenever such questions are raised, the Board of Directors of the Central Mortgage Bank in exercise of its power of supervision can go into the question of such appointments, transfers and disciplinary actions made or taken by the mortgage banks. This power, therefore, can in no circumstances be construed as empowering the Board to Directors of the Central Mortgage Bank to recruit employees for the mortgage banks or to make appointments to a common cadre created by it from out of the employees of the member mortgage banks. If the employees are appointed by the Central Mortgage Bank, their salaries and other emoluments should be paid by it. But evidently this is not so as sub-rules (13) and (14) of R. 70 authorise the Central Mortgage Bank to call for contribution for the cost of the service rendered by the Central Mortgage Bank to be borne by the mortgage banks and provides that once a centralised cadre is constituted all rights and privileges accrued and liabilities incurred by the employee in relation to his service in the mortgage bank shall stand vested with the Board. It is power that the appellants are seeking to draw from Section 115, because only if such a power can be found in that provision, or any other provision of the Act, can the impunged Rule 70 be made under sub-section (1) of Section 130 of the Act. In this connection it should be observed that the key words in Section 115 are employees of the mortgage banks. The power of supervision including the power of appointment, transfer and punitive action may be taken by the Central Mortgage Bank against persons who are the employees of the mortgage banks. But Rule 70 seeks to bring into being a centralised service, the employees whereof shall be the employees of the Central Mortgage Bank and not of the mortgage banks. Such a centralised service is not contemplated by Section 115.We cannot read this power in the manner suggested, and if so this would authorise the constitution of a centralised cadre. As we have explained already the power of the Central Mortgage Bank is only of supervision which power to supervise is to include the power of appointment, transfer and disciplinary action. It is only where what is not included in a particular term as generally understood or where there is some doubt in respect of any particular matter being included, that the Legislature specified it by including that matter.The supervisory power in respect of the employees of the mortgage banks does not include the power to transfer an employee from one mortgage bank to another creating thereby a contract of service with a different employer. The word transfer, must be read as a transfer from one branch of the same mortgage bank to another of its branch. The learned Advocate for the appellants stated that the mortgage banks have no branches. We would not, however, venture to say so. As pointed out by the learned Advocate for the first respondent in Civil Appeal No. 2231 of 1972 that By-law 20 of the Model Bye-Laws of Co-operative Land Mortgage Bank Ltd. provides for maintaining a record of service by the Bank in respect of each employeein which all changes affecting rank, emoluments, transfers and other allied matters shall be noted in the register under the attestation of the Secretary. This provision shows that the Bye-laws envisage a transfer of an employee from one branch to another of a mortgage bank. This bye-law is consistent with Section 115 of the Act which confers a supervisory power in respect of transfer of an employee from one branch to another of the mortgage bank and not from one mortgage bank tono doubt the Central Mortgage Bank may be concerned with securing its loans to the mortgage banks, the provisions of the Act do not confer upon the Central Mortgate Bank the power to collect any loans advanced by the member banks i.e. the mortgage banks. The security given to the mortgage banks in respect of the loans advanced by them no doubt is deemed to have been transferred to the Central Mortgage Bank, but that is only by way of securing the monies advanced by the Central Mortgage Bank to the mortgage banks. Nonetheless, as we have seen earlier, the duty to collect the loan is upon the mortgage banks and notwithstanding the deemed transfer to the Central Mortgage Bank of any property mortgaged to the mortgage banks, the amount due to the mortgage banks is payable to the mortgage banks only and not to the Central Mortgage Bank. Unless there is any specific provision in the Act which directly creates a contractual liability between the Central Mortgage Bank and the borrowers from the mortgage banks, the liability of the borrows for payment of loans advanced to them is only to the mortgage banks which actually advanced the loans to them. The borrowers have no liability to the Central Mortgagepower of the Registrar, it will be noticed, is to create a common cadre of employees for any class of societies. The power, therefore, is of a general nature and is applicable to the mortgage banks as well as to the other societies registered as societies under the Act. Section 116-A also empowers the Registrar to require the affiliated societies to make contribution of such sum every year towards expenditure as may be incurred for the purposes of creation of any common cadre and make such payment enforceable.In our view the High Court is right in holding that when a centralised service or any cadre of employees of the mortgage banks cannot be created by the Board in exercise of its power under Section 115 of the Act, Rule 70 cannot vest such power in the Board. In this view, Rule 70 is ultra vires the rule-making power of the State under sub-s. (1) of Section 130 read with section of thecannot read this power in the manner suggested, and if so this would authorise the constitution of a centralised cadre. As we have explained already the power of the Central Mortgage Bank is only of supervision which power to supervise is to include the power of appointment, transfer and disciplinary action. It is only where what is not included in a particular term as generally understood or where there is some doubt in respect of any particular matter being included, that the Legislature specified it by including that matter.The supervisory power in respect of the employees of the mortgage banks does not include the power to transfer an employee from one mortgage bank to another creating thereby a contract of service with a different employer. The word transfer, must be read as a transfer from one branch of the same mortgage bank to another of its branch. The learned Advocate for the appellants stated that the mortgage banks have no branches. We would not, however, venture to say so. As pointed out by the learned Advocate for the first respondent in Civil Appeal No. 2231 of 1972 that20 of the Modelve Land Mortgage Bank Ltd. provides for maintaining a record of service by the Bank in respect of each employeein which all changes affecting rank, emoluments, transfers and other allied matters shall be noted in the register under the attestation of the Secretary. This provision shows that theenvisage a transfer of an employee from one branch to another of a mortgage bank. Thisis consistent with Section 115 of the Act which confers a supervisory power in respect of transfer of an employee from one branch to another of the mortgage bank and not from one mortgage bank tono doubt the Central Mortgage Bank may be concerned with securing its loans to the mortgage banks, the provisions of the Act do not confer upon the Central Mortgate Bank the power to collect any loans advanced by the member banks i.e. the mortgage banks. The security given to the mortgage banks in respect of the loans advanced by them no doubt is deemed to have been transferred to the Central Mortgage Bank, but that is only by way of securing the monies advanced by the Central Mortgage Bank to the mortgage banks. Nonetheless, as we have seen earlier, the duty to collect the loan is upon the mortgage banks and notwithstanding the deemed transfer to the Central Mortgage Bank of any property mortgaged to the mortgage banks, the amount due to the mortgage banks is payable to the mortgage banks only and not to the Central Mortgage Bank. Unless there is any specific provision in the Act which directly creates a contractual liability between the Central Mortgage Bank and the borrowers from the mortgage banks, the liability of the borrows for payment of loans advanced to them is only to the mortgage banks which actually advanced the loans to them. The borrowers have no liability to the Central Mortgageour view the High Court is right in holding that when a centralised service or any cadre of employees of the mortgage banks cannot be created by the Board in exercise of its power under Section 115 of the Act, Rule 70 cannot vest such power in the Board. In this view, Rule 70 is ultra vires thepower of the State under(1) of Section 130 read with section of the | 0 | 3,380 | 1,934 | ### 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 power to supervise is to include the power of appointment, transfer and disciplinary action. It is only where what is not included in a particular term as generally understood or where there is some doubt in respect of any particular matter being included, that the Legislature specified it by including that matter.The supervisory power in respect of the employees of the mortgage banks does not include the power to transfer an employee from one mortgage bank to another creating thereby a contract of service with a different employer. The word transfer, must be read as a transfer from one branch of the same mortgage bank to another of its branch. The learned Advocate for the appellants stated that the mortgage banks have no branches. We would not, however, venture to say so. As pointed out by the learned Advocate for the first respondent in Civil Appeal No. 2231 of 1972 that By-law 20 of the Model Bye-Laws of Co-operative Land Mortgage Bank Ltd. provides for maintaining a record of service by the Bank in respect of each employeein which all changes affecting rank, emoluments, transfers and other allied matters shall be noted in the register under the attestation of the Secretary. This provision shows that the Bye-laws envisage a transfer of an employee from one branch to another of a mortgage bank. This bye-law is consistent with Section 115 of the Act which confers a supervisory power in respect of transfer of an employee from one branch to another of the mortgage bank and not from one mortgage bank to another.8. The learned Advocate for the appellants contends that it is the Central Mortgage Bank which advances the funds to its members, namely, the mortgage banks and the responsibility is on the Central Mortgage Bank to see that the amounts advanced by the member banks are collected and the loans advanced by it are properly secured. While no doubt the Central Mortgage Bank may be concerned with securing its loans to the mortgage banks, the provisions of the Act do not confer upon the Central Mortgate Bank the power to collect any loans advanced by the member banks i.e. the mortgage banks. The security given to the mortgage banks in respect of the loans advanced by them no doubt is deemed to have been transferred to the Central Mortgage Bank, but that is only by way of securing the monies advanced by the Central Mortgage Bank to the mortgage banks. Nonetheless, as we have seen earlier, the duty to collect the loan is upon the mortgage banks and notwithstanding the deemed transfer to the Central Mortgage Bank of any property mortgaged to the mortgage banks, the amount due to the mortgage banks is payable to the mortgage banks only and not to the Central Mortgage Bank. Unless there is any specific provision in the Act which directly creates a contractual liability between the Central Mortgage Bank and the borrowers from the mortgage banks, the liability of the borrows for payment of loans advanced to them is only to the mortgage banks which actually advanced the loans to them. The borrowers have no liability to the Central Mortgage Bank.9. The Legislature apparently realised the absence of any power in the Act, and therefore provided for creation of the common cadre of employees when it enacted Section 116 A empowering the Registrar to create a common cadre of employees for any class of societies if he considers it necessary in the interest of the co-operative movement to do so. This Section reads as under :S. 116A - "(1) Notwithstanding anything in this Act where the Registrar, in the interest of the co-operative movement, considers that the creation of a common cadre of employees for any class of societies is necessary, he may, constitute an appointment committee or authorise one or more federal societies to which such class of societies is affiliated, to exercise the power of appointment, transfer and disciplinary action in respect of such categories of employees of that class of societies as may be specified by him and make such regulations as may be necessary for carrying out the said purpose. Where, such appointment committee is constituted or federal society is authorised by the Registrar, the affiliated societies shall not have powers to deal with such categories of employees except to the extent the regulation may permit.(2) The Registrar shall have power to require the affiliated societies to make contribution of such sum every year towards expenditure, as the appointment committee or federal society is likely to incur or has incurred for the purpose. If any society fails to pay the said sum to such authority as maybe specified by the Registrar and within the time fixed by him, the Registrar may on the application of the authority, and after such enquiry as he may consider necessary, make an order requiring the society to pay the amount, and every such order shall be enforceable against the society as if it were a decision under Section 62".The power of the Registrar, it will be noticed, is to create a common cadre of employees for any class of societies. The power, therefore, is of a general nature and is applicable to the mortgage banks as well as to the other societies registered as societies under the Act. Section 116-A also empowers the Registrar to require the affiliated societies to make contribution of such sum every year towards expenditure as may be incurred for the purposes of creation of any common cadre and make such payment enforceable.In our view the High Court is right in holding that when a centralised service or any cadre of employees of the mortgage banks cannot be created by the Board in exercise of its power under Section 115 of the Act, Rule 70 cannot vest such power in the Board. In this view, Rule 70 is ultra vires the rule-making power of the State under sub-s. (1) of Section 130 read with section of the Act.
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under the attestation of the Secretary. This provision shows that the Bye-laws envisage a transfer of an employee from one branch to another of a mortgage bank. This bye-law is consistent with Section 115 of the Act which confers a supervisory power in respect of transfer of an employee from one branch to another of the mortgage bank and not from one mortgage bank tono doubt the Central Mortgage Bank may be concerned with securing its loans to the mortgage banks, the provisions of the Act do not confer upon the Central Mortgate Bank the power to collect any loans advanced by the member banks i.e. the mortgage banks. The security given to the mortgage banks in respect of the loans advanced by them no doubt is deemed to have been transferred to the Central Mortgage Bank, but that is only by way of securing the monies advanced by the Central Mortgage Bank to the mortgage banks. Nonetheless, as we have seen earlier, the duty to collect the loan is upon the mortgage banks and notwithstanding the deemed transfer to the Central Mortgage Bank of any property mortgaged to the mortgage banks, the amount due to the mortgage banks is payable to the mortgage banks only and not to the Central Mortgage Bank. Unless there is any specific provision in the Act which directly creates a contractual liability between the Central Mortgage Bank and the borrowers from the mortgage banks, the liability of the borrows for payment of loans advanced to them is only to the mortgage banks which actually advanced the loans to them. The borrowers have no liability to the Central Mortgagepower of the Registrar, it will be noticed, is to create a common cadre of employees for any class of societies. The power, therefore, is of a general nature and is applicable to the mortgage banks as well as to the other societies registered as societies under the Act. Section 116-A also empowers the Registrar to require the affiliated societies to make contribution of such sum every year towards expenditure as may be incurred for the purposes of creation of any common cadre and make such payment enforceable.In our view the High Court is right in holding that when a centralised service or any cadre of employees of the mortgage banks cannot be created by the Board in exercise of its power under Section 115 of the Act, Rule 70 cannot vest such power in the Board. In this view, Rule 70 is ultra vires the rule-making power of the State under sub-s. (1) of Section 130 read with section of thecannot read this power in the manner suggested, and if so this would authorise the constitution of a centralised cadre. As we have explained already the power of the Central Mortgage Bank is only of supervision which power to supervise is to include the power of appointment, transfer and disciplinary action. It is only where what is not included in a particular term as generally understood or where there is some doubt in respect of any particular matter being included, that the Legislature specified it by including that matter.The supervisory power in respect of the employees of the mortgage banks does not include the power to transfer an employee from one mortgage bank to another creating thereby a contract of service with a different employer. The word transfer, must be read as a transfer from one branch of the same mortgage bank to another of its branch. The learned Advocate for the appellants stated that the mortgage banks have no branches. We would not, however, venture to say so. As pointed out by the learned Advocate for the first respondent in Civil Appeal No. 2231 of 1972 that20 of the Modelve Land Mortgage Bank Ltd. provides for maintaining a record of service by the Bank in respect of each employeein which all changes affecting rank, emoluments, transfers and other allied matters shall be noted in the register under the attestation of the Secretary. This provision shows that theenvisage a transfer of an employee from one branch to another of a mortgage bank. Thisis consistent with Section 115 of the Act which confers a supervisory power in respect of transfer of an employee from one branch to another of the mortgage bank and not from one mortgage bank tono doubt the Central Mortgage Bank may be concerned with securing its loans to the mortgage banks, the provisions of the Act do not confer upon the Central Mortgate Bank the power to collect any loans advanced by the member banks i.e. the mortgage banks. The security given to the mortgage banks in respect of the loans advanced by them no doubt is deemed to have been transferred to the Central Mortgage Bank, but that is only by way of securing the monies advanced by the Central Mortgage Bank to the mortgage banks. Nonetheless, as we have seen earlier, the duty to collect the loan is upon the mortgage banks and notwithstanding the deemed transfer to the Central Mortgage Bank of any property mortgaged to the mortgage banks, the amount due to the mortgage banks is payable to the mortgage banks only and not to the Central Mortgage Bank. Unless there is any specific provision in the Act which directly creates a contractual liability between the Central Mortgage Bank and the borrowers from the mortgage banks, the liability of the borrows for payment of loans advanced to them is only to the mortgage banks which actually advanced the loans to them. The borrowers have no liability to the Central Mortgageour view the High Court is right in holding that when a centralised service or any cadre of employees of the mortgage banks cannot be created by the Board in exercise of its power under Section 115 of the Act, Rule 70 cannot vest such power in the Board. In this view, Rule 70 is ultra vires thepower of the State under(1) of Section 130 read with section of the
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Supertex Industries Limited Vs. S Union of India | the subsidy is liable to be given to the petitioner. Relying on certain cases decided by the Supreme Court of India, it was submitted by Mr. Agarwal that this Court, in writ jurisdiction, should not normally issue a mandamus directing doing of a particular thing when the allegation is that there is failure on the part of the respondents to do that particular thing which the law enjoins it to do. He, therefore, opposed adjudication of the question of grant of subsidy by this Court directly. ( 9 ) IT was also submitted by Mr. Joshi, learned Counsel for the petitioner, canvassing for adjudication of the entire dispute by this Court that the petitioner has lost the advantage of subsidy for last 12 years. Severe financial stress has been caused to the company and it would further suffer if the matter is again remitted to the Joint Secretary to the Government of India for adjudication. According to the learned Counsel, even if certain facts are required to be investigated into, the facts already on record disclose that the dispute of fact is not such as would require intensive investigation by this Court and, therefore, taking into consideration the delay of 12 years caused in the matter of awarding of the subsidy, the matter should be decided by this Court once and for all here only. As another limb of his argument, it was pointed out by Mr. Joshi that the petitioner having started and run the industry for last 12 years and on the promises by the respondents that subsidy will be received by it some day, the petitioner has incurred certain obligations because of the chequered career of the litigation since 1990 to date the subsidy is not forthcoming. It is likely to be postponed further. In the circumstances, principles of law of equity demand that the respondents be directed to pay interest to the petitioner on the amount of subsidy from the date the same ought to have been paid in 1990 to the date of actual payment. Mr. Agarwal opposed the prayer for grant of interest and wanted to rely on a large number of cases for his contention that no interest can be paid in the present case. Thereafter, during the course of arguments. Mr. Joshi, learned Counsel for the petitioner, stated that the petitioner would give up his claim for any interest, if the matter is adjudicated upon finally by this Court. He stated that he was willing to do only to avoid a lengthy litigation which was bound to be involved if the matter was remanded. ( 10 ) WE have considered the rival submissions and given appropriate weight. It will be seen that the application of the petitioner company was rejected on the ground that it belongs to a group of companies and, therefore, is not entitled to grant of subsidy. Therefore, it does not fulfill the requirements mentioned in the four different circulars which govern the grant. The petitioner company has been held to be a group of companies only because one Director Mr. Khemani is a Director in two companies, the ultimate product manufactured by both of them being very similar. However, from the fact disclosed by the affidavits on record, it will be seen that the holding of Mr. Khemani in the petitioner company is very minimal, less than one per cent, and it cannot be said that he has any control over the petitioner company. On this ground alone the company cannot be treated as a group of companies. Mr. Joshi correctly pointed out, relying on one of the circulars issued by the Government of India, that in order to ascertain what is meant by group company the definition of group company contained in the Monopolies and Restrictive Trade Practices Act, 1969 (M. R. T. P. Act) is liable to be taken into consideration. So considered, as held by the Supreme Court, a company can be called a group of two or more individuals or associations of individuals and associations of firms etc. It must have control directly or indirectly over any body corporate, firm or trust. What is meant by "associated persons" is also defined by the Act and it means any company of which such Director, whether independently or together with his relatives, constitutes one-fourth of its Board of Director. According to Mr. Joshi, therefore, holding Mr. Khemani being only 10 shares he did not constitute one-fourth of the Board of Directors and was therefore, not an associated person and it did not make Mr. Khemani, a person of the petitioner company a group as defined by the Act. Prima facie, there appears to be much substance in this submission made by Mr. Joshi. However, taking into consideration the objections raised by Mr. Agarwal to the adjudication of the petitioners entitlement to subsidy by this Court directly, we do not think it proper to pronounce our opinion on this aspect. It is true, as pointed by Mr. Agarwal, that it is for the Government of India to consider the factual position in the light of the four circulars issued by the State and to decide as to whether in the circumstances so disclosed, the petitioner company is or is not entitled to grant of investment subsidy. We are inclined to accept this argument for yet another reason and that is availing of possible remedy against the decision of Government of India. To elaborate, if the competent authority decides in favour of the petitioner and grants subsidy and if the Government is not satisfied with the decision, it can be challenged appropriately. Similarly, a refusal if it ensues can be challenged by the petitioner appropriately. If the submission of the petitioner is accepted, we short circuit the process and decide the matter ourselves possibly the petitioner or the State loose one remedy. It is also better that we keep ourselves with the tradition of not entertaining disputed facts or adjudicating upon disputed facts unless it is directly necessary. | 1[ds]( 10 ) WE have considered the rival submissions and given appropriate weight. It will be seen that the application of the petitioner company was rejected on the ground that it belongs to a group of companies and, therefore, is not entitled to grant of subsidy. Therefore, it does not fulfill the requirements mentioned in the four different circulars which govern the grant. The petitioner company has been held to be a group of companies only because one Director Mr. Khemani is a Director in two companies, the ultimate product manufactured by both of them being very similar. However, from the fact disclosed by the affidavits on record, it will be seen that the holding of Mr. Khemani in the petitioner company is very minimal, less than one per cent, and it cannot be said that he has any control over the petitioner company. On this ground alone the company cannot be treated as a group of companies. Mr. Joshi correctly pointed out, relying on one of the circulars issued by the Government of India, that in order to ascertain what is meant by group company the definition of group company contained in the Monopolies and Restrictive Trade Practices Act, 1969 (M. R. T. P. Act) is liable to be taken intois true, as pointed by Mr. Agarwal, that it is for the Government of India to consider the factual position in the light of the four circulars issued by the State and to decide as to whether in the circumstances so disclosed, the petitioner company is or is not entitled to grant of investment subsidy. We are inclined to accept this argument for yet another reason and that is availing of possible remedy against the decision of Government of India. To elaborate, if the competent authority decides in favour of the petitioner and grants subsidy and if the Government is not satisfied with the decision, it can be challenged appropriately. Similarly, a refusal if it ensues can be challenged by the petitioner appropriately. If the submission of the petitioner is accepted, we short circuit the process and decide the matter ourselves possibly the petitioner or the State loose one remedy. It is also better that we keep ourselves with the tradition of not entertaining disputed facts or adjudicating upon disputed facts unless it is directly necessary. | 1 | 2,909 | 425 | ### 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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the subsidy is liable to be given to the petitioner. Relying on certain cases decided by the Supreme Court of India, it was submitted by Mr. Agarwal that this Court, in writ jurisdiction, should not normally issue a mandamus directing doing of a particular thing when the allegation is that there is failure on the part of the respondents to do that particular thing which the law enjoins it to do. He, therefore, opposed adjudication of the question of grant of subsidy by this Court directly. ( 9 ) IT was also submitted by Mr. Joshi, learned Counsel for the petitioner, canvassing for adjudication of the entire dispute by this Court that the petitioner has lost the advantage of subsidy for last 12 years. Severe financial stress has been caused to the company and it would further suffer if the matter is again remitted to the Joint Secretary to the Government of India for adjudication. According to the learned Counsel, even if certain facts are required to be investigated into, the facts already on record disclose that the dispute of fact is not such as would require intensive investigation by this Court and, therefore, taking into consideration the delay of 12 years caused in the matter of awarding of the subsidy, the matter should be decided by this Court once and for all here only. As another limb of his argument, it was pointed out by Mr. Joshi that the petitioner having started and run the industry for last 12 years and on the promises by the respondents that subsidy will be received by it some day, the petitioner has incurred certain obligations because of the chequered career of the litigation since 1990 to date the subsidy is not forthcoming. It is likely to be postponed further. In the circumstances, principles of law of equity demand that the respondents be directed to pay interest to the petitioner on the amount of subsidy from the date the same ought to have been paid in 1990 to the date of actual payment. Mr. Agarwal opposed the prayer for grant of interest and wanted to rely on a large number of cases for his contention that no interest can be paid in the present case. Thereafter, during the course of arguments. Mr. Joshi, learned Counsel for the petitioner, stated that the petitioner would give up his claim for any interest, if the matter is adjudicated upon finally by this Court. He stated that he was willing to do only to avoid a lengthy litigation which was bound to be involved if the matter was remanded. ( 10 ) WE have considered the rival submissions and given appropriate weight. It will be seen that the application of the petitioner company was rejected on the ground that it belongs to a group of companies and, therefore, is not entitled to grant of subsidy. Therefore, it does not fulfill the requirements mentioned in the four different circulars which govern the grant. The petitioner company has been held to be a group of companies only because one Director Mr. Khemani is a Director in two companies, the ultimate product manufactured by both of them being very similar. However, from the fact disclosed by the affidavits on record, it will be seen that the holding of Mr. Khemani in the petitioner company is very minimal, less than one per cent, and it cannot be said that he has any control over the petitioner company. On this ground alone the company cannot be treated as a group of companies. Mr. Joshi correctly pointed out, relying on one of the circulars issued by the Government of India, that in order to ascertain what is meant by group company the definition of group company contained in the Monopolies and Restrictive Trade Practices Act, 1969 (M. R. T. P. Act) is liable to be taken into consideration. So considered, as held by the Supreme Court, a company can be called a group of two or more individuals or associations of individuals and associations of firms etc. It must have control directly or indirectly over any body corporate, firm or trust. What is meant by "associated persons" is also defined by the Act and it means any company of which such Director, whether independently or together with his relatives, constitutes one-fourth of its Board of Director. According to Mr. Joshi, therefore, holding Mr. Khemani being only 10 shares he did not constitute one-fourth of the Board of Directors and was therefore, not an associated person and it did not make Mr. Khemani, a person of the petitioner company a group as defined by the Act. Prima facie, there appears to be much substance in this submission made by Mr. Joshi. However, taking into consideration the objections raised by Mr. Agarwal to the adjudication of the petitioners entitlement to subsidy by this Court directly, we do not think it proper to pronounce our opinion on this aspect. It is true, as pointed by Mr. Agarwal, that it is for the Government of India to consider the factual position in the light of the four circulars issued by the State and to decide as to whether in the circumstances so disclosed, the petitioner company is or is not entitled to grant of investment subsidy. We are inclined to accept this argument for yet another reason and that is availing of possible remedy against the decision of Government of India. To elaborate, if the competent authority decides in favour of the petitioner and grants subsidy and if the Government is not satisfied with the decision, it can be challenged appropriately. Similarly, a refusal if it ensues can be challenged by the petitioner appropriately. If the submission of the petitioner is accepted, we short circuit the process and decide the matter ourselves possibly the petitioner or the State loose one remedy. It is also better that we keep ourselves with the tradition of not entertaining disputed facts or adjudicating upon disputed facts unless it is directly necessary.
### Response:
1
### Explanation:
( 10 ) WE have considered the rival submissions and given appropriate weight. It will be seen that the application of the petitioner company was rejected on the ground that it belongs to a group of companies and, therefore, is not entitled to grant of subsidy. Therefore, it does not fulfill the requirements mentioned in the four different circulars which govern the grant. The petitioner company has been held to be a group of companies only because one Director Mr. Khemani is a Director in two companies, the ultimate product manufactured by both of them being very similar. However, from the fact disclosed by the affidavits on record, it will be seen that the holding of Mr. Khemani in the petitioner company is very minimal, less than one per cent, and it cannot be said that he has any control over the petitioner company. On this ground alone the company cannot be treated as a group of companies. Mr. Joshi correctly pointed out, relying on one of the circulars issued by the Government of India, that in order to ascertain what is meant by group company the definition of group company contained in the Monopolies and Restrictive Trade Practices Act, 1969 (M. R. T. P. Act) is liable to be taken intois true, as pointed by Mr. Agarwal, that it is for the Government of India to consider the factual position in the light of the four circulars issued by the State and to decide as to whether in the circumstances so disclosed, the petitioner company is or is not entitled to grant of investment subsidy. We are inclined to accept this argument for yet another reason and that is availing of possible remedy against the decision of Government of India. To elaborate, if the competent authority decides in favour of the petitioner and grants subsidy and if the Government is not satisfied with the decision, it can be challenged appropriately. Similarly, a refusal if it ensues can be challenged by the petitioner appropriately. If the submission of the petitioner is accepted, we short circuit the process and decide the matter ourselves possibly the petitioner or the State loose one remedy. It is also better that we keep ourselves with the tradition of not entertaining disputed facts or adjudicating upon disputed facts unless it is directly necessary.
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Union of India and Others Vs. M. B. Patnaik and Others | of an Inquiry Committee consisting of more than one person by the impression formed by him about the truthfulness or otherwise of a particular witness examined during the inquiry. From the stage antecedent to the framing of the charges everything is recorded in writing. The allegations on which the charges are based are made known to the railway servant and he is called upon to file his written statement after looking into all the relevant records. The oral evidence of all the witnesses tendered during the enquiry is recorded in writing. Whereas here the oral evidence is recorded in the presence of three persons constituting the Inquiry Committee, any impression created by the demeanour of a particular witness on the mind of any one member cannot affect the conclusion afterwards arrived at jointly by them. It can not be suggested that all the three persons would record t heir impressions separately about the demeanour of a witness and it is quite possible that a particular witness may appear to one member of the committee to be untruthful without his being considered so by the others. The members of the Inquiry Committee cannot record their findings separately, but it is their duty to record findings on each of the charges together with the reasons therefore. It is to be noted that the duty of the Inquiry Committee ends with the making of the report. The Disciplinary Authority has to consider the record of the inquiry and arrive at its own conclusion on each charge. Whatever may be the impression created by a particular witness on the min d of one member of the Committee, the same is never translated into writing and the Disciplinary Committee merely goes by the written record after giving a personal hearing to the railway servant if he asks for it. Even i f the Inquiry Committee makes a report absolving the railway servant of the charges against him, the Disciplinary Authority may, on considering the entire record come to a different conclusion and impose a penalty. This is amply borne out by a judgment of this Court in Union of India v. H.C. Goel (A.I.R. 1964 S.C. 364) where it was said that neither the findings nor the recommendations of the Inquiry Committee are binding on the Government. In such a state of affairs a change in the personnel of the Inquiry Committee after the proceedings are begun and some evidence recorded cannot make any difference to the case of the railway servant. The record will speak for itself and it is the record consisting of the documents and the oral evidence as recorded which must form the basis of the report of the Inquiry Committee. The Committee is not the punishing authority and the personal impress ion of a member of the Committee cannot possibly affect the decision of the Disciplinary Authority. In a state of affairs like this, we cannot see any reason for holding that any known principle of natural justice is violated w hen one member of the Committee is substituted by another." 7. It would appear from the above extract that it is not at all necessary that the enquiry which had been held in part by more than one enquiry officers should be continued by the same enquiry officers until the end. The post which the members of the Inquiry Committee held originally might have been ceased to exist at a later stage, or one or more of the members of the Inquiry Committee may no longer be available either on account of retirement or due to any other cause. For that reason, it could not be held that the enquiry could not be continued at all. Therefore, there could be no valid objection to the supplementary enquiry being continued by the v ery two individuals, even after they had ceased to hold their respective offices which they held at the time of the original enquiry. The plea of malafides raised against the two Inquiry Officers on behalf of P.N.L. Das, the respondent in C.A. No. 389 of 1981 before Misra and Panda JJ, when Writ Petition (O.J.C.) No. 579/71 was heard was rejected by the learned Judges who have observed in their judgment that after hearing the counsel they were satisfied that no good foundation has been laid for the plea of malafides, bias or prejudice by the enquiry officers and it was also conceded by the learned counsel who appeared for P.N.L. Das in that Writ Petition that on the material on records it may be difficult for him to persuade them to hold in favour of the petitioner before them in regard to the plea of mala fides. Therefore, we are clearly of the opinion there could be. no bar to B.K. Patnaik and B.B. Chatterjee who were originally the Assistant Commercial Superintendent, Khurda Road and Assistant Accounts Officer, Garden Reach respectively, holding the supplementary enquiry even after they ceased to hold their respective offices by reason of their promotion as Divisional Commercial Superintendent, Kharagpur and Divisional Accounts Officer, Adra sometime before the commencement of the supplementary enquiry. However, we agree with Misra and Mohanty JJ of the Orissa High Court that it would be inequitable for a fresh enquiry being made into the charge framed against the respondents in S. As. Nos. 2119- 2121/79 or to go into the merits of the case against P.N.L. Das the respondent in C.A. No. 389 of 1981, having regard to the long lapse of time, the offences having been stated to have been committed in about 1955. Mr. M.M. Abdul Khader, learned counsel for the appellants in these appeals represented before us that no recovery will be made from S/Shri Ch. R. Murty, B.S.N. Rao and B. Papa Rao who have retired from service and also from P.N.L. Das the in respondent in C.A. No. 389 of 1981 who has been reinstated subsequent to the decision of the Orissa High Court in Writ Petition (O.J.C.) No. 832 of 1977. | 0[ds]It would appear from the above extract that it is not at all necessary that the enquiry which had been held in part by more than one enquiry officers should be continued by the same enquiry officers until the end. The post which the members of the Inquiry Committee held originally might have been ceased to exist at a later stage, or one or more of the members of the Inquiry Committee may no longer be available either on account of retirement or due to any other cause. For that reason, it could not be held that the enquiry could not be continued at all. Therefore, there could be no valid objection to the supplementary enquiry being continued by the v ery two individuals, even after they had ceased to hold their respective offices which they held at the time of the original enquiry. The plea of malafides raised against the two Inquiry Officers on behalf of P.N.L. Das, the respondent in C.A. No. 389 of 1981 before Misra and Panda JJ, when Writ Petition (O.J.C.) No. 579/71 was heard was rejected by the learned Judges who have observed in their judgment that after hearing the counsel they were satisfied that no good foundation has been laid for the plea of malafides, bias or prejudice by the enquiry officers and it was also conceded by the learned counsel who appeared for P.N.L. Das in that Writ Petition that on the material on records it may be difficult for him to persuade them to hold in favour of the petitioner before them in regard to the plea of mala fides. Therefore, we are clearly of the opinion there could be. no bar to B.K. Patnaik and B.B. Chatterjee who were originally the Assistant Commercial Superintendent, Khurda Road and Assistant Accounts Officer, Garden Reach respectively, holding the supplementary enquiry even after they ceased to hold their respective offices by reason of their promotion as Divisional Commercial Superintendent, Kharagpur and Divisional Accounts Officer, Adra sometime before the commencement of the supplementary enquiry. However, we agree with Misra and Mohanty JJ of the Orissa High Court that it would be inequitable for a fresh enquiry being made into the charge framed against the respondents in S. As. Nos. 2119- 2121/79 or to go into the merits of the case against P.N.L. Das the respondent in C.A. No. 389 of 1981, having regard to the long lapse of time, the offences having been stated to have been committed in about 1955. | 0 | 3,381 | 459 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
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of an Inquiry Committee consisting of more than one person by the impression formed by him about the truthfulness or otherwise of a particular witness examined during the inquiry. From the stage antecedent to the framing of the charges everything is recorded in writing. The allegations on which the charges are based are made known to the railway servant and he is called upon to file his written statement after looking into all the relevant records. The oral evidence of all the witnesses tendered during the enquiry is recorded in writing. Whereas here the oral evidence is recorded in the presence of three persons constituting the Inquiry Committee, any impression created by the demeanour of a particular witness on the mind of any one member cannot affect the conclusion afterwards arrived at jointly by them. It can not be suggested that all the three persons would record t heir impressions separately about the demeanour of a witness and it is quite possible that a particular witness may appear to one member of the committee to be untruthful without his being considered so by the others. The members of the Inquiry Committee cannot record their findings separately, but it is their duty to record findings on each of the charges together with the reasons therefore. It is to be noted that the duty of the Inquiry Committee ends with the making of the report. The Disciplinary Authority has to consider the record of the inquiry and arrive at its own conclusion on each charge. Whatever may be the impression created by a particular witness on the min d of one member of the Committee, the same is never translated into writing and the Disciplinary Committee merely goes by the written record after giving a personal hearing to the railway servant if he asks for it. Even i f the Inquiry Committee makes a report absolving the railway servant of the charges against him, the Disciplinary Authority may, on considering the entire record come to a different conclusion and impose a penalty. This is amply borne out by a judgment of this Court in Union of India v. H.C. Goel (A.I.R. 1964 S.C. 364) where it was said that neither the findings nor the recommendations of the Inquiry Committee are binding on the Government. In such a state of affairs a change in the personnel of the Inquiry Committee after the proceedings are begun and some evidence recorded cannot make any difference to the case of the railway servant. The record will speak for itself and it is the record consisting of the documents and the oral evidence as recorded which must form the basis of the report of the Inquiry Committee. The Committee is not the punishing authority and the personal impress ion of a member of the Committee cannot possibly affect the decision of the Disciplinary Authority. In a state of affairs like this, we cannot see any reason for holding that any known principle of natural justice is violated w hen one member of the Committee is substituted by another." 7. It would appear from the above extract that it is not at all necessary that the enquiry which had been held in part by more than one enquiry officers should be continued by the same enquiry officers until the end. The post which the members of the Inquiry Committee held originally might have been ceased to exist at a later stage, or one or more of the members of the Inquiry Committee may no longer be available either on account of retirement or due to any other cause. For that reason, it could not be held that the enquiry could not be continued at all. Therefore, there could be no valid objection to the supplementary enquiry being continued by the v ery two individuals, even after they had ceased to hold their respective offices which they held at the time of the original enquiry. The plea of malafides raised against the two Inquiry Officers on behalf of P.N.L. Das, the respondent in C.A. No. 389 of 1981 before Misra and Panda JJ, when Writ Petition (O.J.C.) No. 579/71 was heard was rejected by the learned Judges who have observed in their judgment that after hearing the counsel they were satisfied that no good foundation has been laid for the plea of malafides, bias or prejudice by the enquiry officers and it was also conceded by the learned counsel who appeared for P.N.L. Das in that Writ Petition that on the material on records it may be difficult for him to persuade them to hold in favour of the petitioner before them in regard to the plea of mala fides. Therefore, we are clearly of the opinion there could be. no bar to B.K. Patnaik and B.B. Chatterjee who were originally the Assistant Commercial Superintendent, Khurda Road and Assistant Accounts Officer, Garden Reach respectively, holding the supplementary enquiry even after they ceased to hold their respective offices by reason of their promotion as Divisional Commercial Superintendent, Kharagpur and Divisional Accounts Officer, Adra sometime before the commencement of the supplementary enquiry. However, we agree with Misra and Mohanty JJ of the Orissa High Court that it would be inequitable for a fresh enquiry being made into the charge framed against the respondents in S. As. Nos. 2119- 2121/79 or to go into the merits of the case against P.N.L. Das the respondent in C.A. No. 389 of 1981, having regard to the long lapse of time, the offences having been stated to have been committed in about 1955. Mr. M.M. Abdul Khader, learned counsel for the appellants in these appeals represented before us that no recovery will be made from S/Shri Ch. R. Murty, B.S.N. Rao and B. Papa Rao who have retired from service and also from P.N.L. Das the in respondent in C.A. No. 389 of 1981 who has been reinstated subsequent to the decision of the Orissa High Court in Writ Petition (O.J.C.) No. 832 of 1977.
### Response:
0
### Explanation:
It would appear from the above extract that it is not at all necessary that the enquiry which had been held in part by more than one enquiry officers should be continued by the same enquiry officers until the end. The post which the members of the Inquiry Committee held originally might have been ceased to exist at a later stage, or one or more of the members of the Inquiry Committee may no longer be available either on account of retirement or due to any other cause. For that reason, it could not be held that the enquiry could not be continued at all. Therefore, there could be no valid objection to the supplementary enquiry being continued by the v ery two individuals, even after they had ceased to hold their respective offices which they held at the time of the original enquiry. The plea of malafides raised against the two Inquiry Officers on behalf of P.N.L. Das, the respondent in C.A. No. 389 of 1981 before Misra and Panda JJ, when Writ Petition (O.J.C.) No. 579/71 was heard was rejected by the learned Judges who have observed in their judgment that after hearing the counsel they were satisfied that no good foundation has been laid for the plea of malafides, bias or prejudice by the enquiry officers and it was also conceded by the learned counsel who appeared for P.N.L. Das in that Writ Petition that on the material on records it may be difficult for him to persuade them to hold in favour of the petitioner before them in regard to the plea of mala fides. Therefore, we are clearly of the opinion there could be. no bar to B.K. Patnaik and B.B. Chatterjee who were originally the Assistant Commercial Superintendent, Khurda Road and Assistant Accounts Officer, Garden Reach respectively, holding the supplementary enquiry even after they ceased to hold their respective offices by reason of their promotion as Divisional Commercial Superintendent, Kharagpur and Divisional Accounts Officer, Adra sometime before the commencement of the supplementary enquiry. However, we agree with Misra and Mohanty JJ of the Orissa High Court that it would be inequitable for a fresh enquiry being made into the charge framed against the respondents in S. As. Nos. 2119- 2121/79 or to go into the merits of the case against P.N.L. Das the respondent in C.A. No. 389 of 1981, having regard to the long lapse of time, the offences having been stated to have been committed in about 1955.
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Thiru John and Another Vs. Returning Officer and Others | learned counsel and hold that Shri Mohana Rangam did not get automatically excluded. Both he and Shri Subramanyan were continuing candidates. Shri Subramanyan could not be declared elected as he had not obtained the required quota of 3, 201 votes. This takes us to the next question . Should all the votes that had polled in favour of the candidate (Shri John) who has been found by the Court to be statutorily disqualified for election, , be regarded as thrown away, and in consequence, the appellant, Shri Subramanyan, who secured 300 votes as against none obtained by Shri Mohana Rangam, be declared elected ?Again, the answer to this question, in our opinion, must be in tire negative. It is nobodys case that the electors who voted for Shri John, had at the time of election, knowledge or notice of the statutory disqualification of this candidate. On the contrary, they must have been under the impression that Shri John was a candidate whose nomination had been validly accepted by the returning officer. Had the electors notice of Shri Johns disqualification, how many of them would have voted for him and how many for the other continuing candidates, including Sarv Shri Subramanyan and Mohan Rangam, and in what preferential order, remains a question in the realm of speculation and unpredictability. 27. In the view we take, we are fortified by the observations in this Courts decision in R.M. Seshadri v. G.V. Pai (AIR. 1969 S.C. 692, at page 701). In that case, the election of R.M. Seshadri to the Madras Legislative Council was set aside on the ground that he was guilty of the corrupt practice of hiring or procuring motor vehicles to carry voters. The total votes polled were 12, 153. Since the voting was by a single transferable vote, three out of the five candidates were eliminated at different counts with the result that their votes were transferred to the second candidate named in the ballot. At the final count Seshadri received 5643 votes and his nearest rival, G.V. Pal received 5388 votes. The number of the voters who were carried in the hired or procured vehicles could not be ascertained. 28. Before this Court, it was contended that the election of Seshadri having been set aside, G.V. Pai who had polled the next highest number of votes should be declared elected. Hidayatullah C.J. speaking for the Court, rejected this contention with these observations:"This (question) will depend on our reaching the conclusion that but for the fact that voters were brought through this corrupt practise to the polling booths, the result of the election had been materially affected In a single transferable vote, it is very difficult to say how the voting would have gone, because if all the votes which Seshadri had got, had gone to one of the other candidates who got eliminated at the earlier counts, those candidates would have won. We cannot order a recount because those voters were not free from complicity. It would be speculating to decide how many of the voters were brought to the polling booths in car. We think that we are not in a position to declare Vasanta Pai as elected, because that would be merely a guess or surmise as to the nature of the voting which would have taken place if this corrupt practice had not been perpetrated." 29. The position in the instant case is no better. It is extremely difficult, if not impossible, to predicate what the voting pattern would have been if the electors knew at the time of election, that Shri John was not qualified to contest the election. In any case, Shri Subramanyan. was neither the sole continuing candidate, nor had he secured the requisite quota of votes. He cannot therefore, be declared elected. 30. The dictum of this Court in Viswanatha v. Konappa (supra) does not advance the case of the appellant, Shri Subramanyan. In that case, the election in question was not held according to the system of a single transferable vote. There were only two candidates, in the field for a single seat, and one of them was under a statutory disqualification, Shah J. (as he then was) speaking for the Court, held that the votes cast in favour of the disqualified candidate may be regarded as thrown away, even if the voters who had voted for him were unaware of the disqualification, and the candidate securing the next highest number of votes was declared elected. The learned Judge was however careful enough to add:"This is not to say that where there are more than two candidates in the field for a single seat, and one alone is disqualified, on proof of disqualification all the votes cast in his favour will be discarded and the candidate securing the next highest number of votes will be declared elected. In such a case, question of notice to the voters may assume, significance, for the voters may not, if aware of the disqualification, have voted for the disqualified candidate" 31. The ratio decidendi of Viswanatha v. Konappa is applicable only where (a) there are two contesting candidates and one of them is disqualified, . (b) and the election is on the basis of single non-transferable vote. Both these conditions do not exist in the present case. As already discussed, Shri Subramanyan appellant was not the sole surviving continuing candidate left in the field, after exclusion of the disqualified candidate, Shri John. The election in question was not held by mode of single transferable vote according to which a simple majority of votes secured ensures the success of a candidate, but by proportional representation with sing le transferable vote, under which system the success of a candidate normally depends on his securing the requisite quota. 32. However, the principle underlying the obiter in Viswanatha v. Konappa, which we have extracted, is applicable to the instant case because here, after the exclusion of the disqualified candidate, two continuing candidates were left in the field. 33. | 0[ds]While it is true that the onus of proving that on the date fixed for the scrutiny of nominations, Shri John was less than 30 years of age, w as on the election-petitioners, they had amply discharged this onus by bringing on record overwhelming documentary evidence of a cogent and convincing character. This documentary evidence includes no less than a dozen previous admissions and declarations made by Shri John himself about his age, between March 1964 and July 1973All aspects of this issue have been discussed threadbare by the High Court. Suffice it to say, that from the evidence on record it stood clearly established that on the date of the scrutiny of the nominations, Shri John was less than 30 years of are and in view of Article 84(b) of the Constitution he was not competent to contest the election for the Rajya Sabha. His nomination was therefore improperly accepted by the Returning Officer, and this improper acceptance has, in so far as it concerned the returned candidate, Shri John, materially affected the result of the election.Shri Johns election was thus rightly set aside by the High CourtIf (at any election held for filling more than one seat) at the end of any count or at the end of the transfer of any parcel or sub- parcel of an excluded candidate the value of ballot papers credited to a candidate is equal to, or greater than the quota, that candidate shall be declared elected (Rule 78). if at the end of any count the value of the ballot papers credited to a candidate is greater than the quota, the surplus is transferred in accordance with the provisions of Rule 79, to the continuing candidates indicated in the ballot papers of that candidate a s being next in order of the electors preference [Sub-Rule (1 ) of Rule79] "Surplus" means the number by which the value of the votes original and transferred, of any candidate exceed the quota [Sub-rule (6) of Rule 71 ]. "Continuing candidate" means any candidate not elected and not excluded from the poll at any given time [Sub-rule (1 ) of Rule 71]. If more than one candidate have a surplus, the largest surplus is dealt with firs t and the others in order of magnitude, but every surplus arising on the first count is dealt with before those arising on the second count and so on. Where there are more surpluses than one to distribute and two or more surpluses are equal, regard shall be had to the original votes of each candidate and the candidate for whom most original votes are recorded shall have his surplus first distributed; and if the values of their original vote s are equal, . the returning officer decides by lot which candidate shall have his surplus first distributed. [Sub-rules (2) &(3) of Rule 78]. "Original Vote", in relation to any candidate, means a vote derived from a ballot paper on which a first preference is recorded, for such candidate.If the surplus of any candidate to be transferred arises from original votes only, the returning officer shall examine all the papers in t he parcel belonging to that candidate, divide the unexhausted papers into sub-parcels according to the next preferences recorded thereon and make a separate sub-parcel of the exhausted papers [Clause (a) of sub- rule (4) of Rule 78]. "Exhausted paper" means a ballot paper on which no further preference is recorded for a continuing candidate, provided that a paper shall be deemed to have become exhausted whenever--(a) the names of two or more candidates, whether continuing or not, are marked with the same figure and are next in order of preference; or (b) the name of the candidate next in order of preference, whether continuing or not, is mar ked by a figure not falling consecutively after some other figure on the ballot paper or by two or more figures [Sub-Rule (3) of Rule 71]. The Returning Officer has to ascertain the value of the papers in each sub- parcel and of all the unexhausted papers. If the value of the unexhausted papers is equal or less than the surplus, he shall transfer all the unexhausted papers at the value at which they were received by the candidate whose surplus is being transferred. If the value of the unex- hausted paVers is greater than the surplus, he shall trans- fer the sub-parcels of unexhausted papers and the value at which each paper shall be transferred sha ll be ascertained by dividing the surplus by the total number of unexhausted Papers [Sub-Rule (4) of Rule 78]. Sub-Rule (5) indicates the procedure where the surplus of any candidate to be transferred arises from transferred as well as orginal votes; All papers in the parcel or sub-parcel of an elected candidate not tansferred under this rule have to set apart as finally dealt with [Sub-Rule (7) of Rule 78]There is nothing in Rule 74 or any other Rule which, at an election to fill more than one seat, requires or empowers the returning officer to exclude a candidate from the poll merely on the ground that in the counting of the first preferences, he has not secured any valid vote. Sub Rule (3) of Rule 75, to which reference was made at one stage, has no application to the instant case. That sub-rule---which requires the returning officer to exclude from the poll a candidate whose score is the lowest--governs the counting of votes where only one seat is to be filled and at the end of any count, no candid ate can be declared elected. Such is not the case before us. Rule 80 also can have no application because it comes into operation at a stage "after all surpluses have been transferred". That stage never arrived in the instant case because in the first counting itself, all the six seats were filled up, six candidates (including Shri John) having secured the requisite quota of first preference votes. Nor did the stage for applying Rule 81 arise, because at the end of the first count, no vacancy remained unfilledWe therefore, repel the contention of the learned counsel and hold that Shri Mohana Rangam did not get automatically excluded. Both he and Shri Subramanyan were continuing candidates. Shri Subramanyan could not be declared elected as he had not obtained the required quota of 3, 201 votes. This takes us to the next question . Should all the votes that had polled in favour of the candidate (Shri John) who has been found by the Court to be statutorily disqualified for election, , be regarded as thrown away, and in consequence, the appellant, Shri Subramanyan, who secured 300 votes as against none obtained by Shri Mohana Rangam, be declared elected ?Again, the answer to this question, in our opinion, must be in tire negative. It is nobodys case that the electors who voted for Shri John, had at the time of election, knowledge or notice of the statutory disqualification of this candidate. On the contrary, they must have been under the impression that Shri John was a candidate whose nomination had been validly accepted by the returning officer. Had the electors notice of Shri Johns disqualification, how many of them would have voted for him and how many for the other continuing candidates, including Sarv Shri Subramanyan and Mohan Rangam, and in what preferential order, remains a question in the realm of speculation and unpredictabilityIn the view we take, we are fortified by the observations in this Courts decision in R.M. Seshadri v. G.V. Pai (AIR. 1969 S.C. 692, at page 701). In that case, the election of R.M. Seshadri to the Madras Legislative Council was set aside on the ground that he was guilty of the corrupt practice of hiring or procuring motor vehicles to carry voters. The total votes polled were 12, 153. Since the voting was by a single transferable vote, three out of the five candidates were eliminated at different counts with the result that their votes were transferred to the second candidate named in the ballot. At the final count Seshadri received 5643 votes and his nearest rival, G.V. Pal received 5388 votes. The number of the voters who were carried in the hired or procured vehicles could not be ascertainedBefore this Court, it was contended that the election of Seshadri having been set aside, G.V. Pai who had polled the next highest number of votes should be declared elected. Hidayatullah C.J. speaking for the Court, rejected this contention with these observations:"This (question) will depend on our reaching the conclusion that but for the fact that voters were brought through this corrupt practise to the polling booths, the result of the election had been materially affected In a single transferable vote, it is very difficult to say how the voting would have gone, because if all the votes which Seshadri had got, had gone to one of the other candidates who got eliminated at the earlier counts, those candidates would have won. We cannot order a recount because those voters were not free from complicity. It would be speculating to decide how many of the voters were brought to the polling booths in car. We think that we are not in a position to declare Vasanta Pai as elected, because that would be merely a guess or surmise as to the nature of the voting which would have taken place if this corrupt practice had not been perpetrated."The position in the instant case is no better. It is extremely difficult, if not impossible, to predicate what the voting pattern would have been if the electors knew at the time of election, that Shri John was not qualified to contest the election. In any case, Shri Subramanyan. was neither the sole continuing candidate, nor had he secured the requisite quota of votes. He cannot therefore, be declared electedThe dictum of this Court in Viswanatha v. Konappa (supra) does not advance the case of the appellant, Shri Subramanyan. In that case, the election in question was not held according to the system of a single transferable vote. There were only two candidates, in the field for a single seat, and one of them was under a statutory disqualification, Shah J. (as he then was) speaking for the Court, held that the votes cast in favour of the disqualified candidate may be regarded as thrown away, even if the voters who had voted for him were unaware of the disqualification, and the candidate securing the next highest number of votes was declared elected. The learned Judge was however careful enough tos is not to say that where there are more than two candidates in the field for a single seat, and one alone is disqualified, on proof of disqualification all the votes cast in his favour will be discarded and the candidate securing the next highest number of votes will be declared elected. In such a case, question of notice to the voters may assume, significance, for the voters may not, if aware of the disqualification, have voted for the disqualified candidate"The ratio decidendi of Viswanatha v. Konappa is applicable only where (a) there are two contesting candidates and one of them is disqualified, . (b) and the election is on the basis of single non-transferable vote. Both these conditions do not exist in the present case. As already discussed, Shri Subramanyan appellant was not the sole surviving continuing candidate left in the field, after exclusion of the disqualified candidate, Shri John. The election in question was not held by mode of single transferable vote according to which a simple majority of votes secured ensures the success of a candidate, but by proportional representation with sing le transferable vote, under which system the success of a candidate normally depends on his securing the requisite quotaHowever, the principle underlying the obiter in Viswanatha v. Konappa, which we have extracted, is applicable to the instant case because here, after the exclusion of the disqualified candidate, two continuing candidates were left in the fieldWe find these contentions wholly devoid of meritThe above principle will apply with greater force in the instant case. Here, there are a number of clear admissions in prior declarations precisely and deliberately made in solemn documents by Shri John. These admissions were made ante litem motam during the decade preceding the election in question. These admissions were entitled to great weight. They had shifted the burden on the appellant (Shri John) to show that they were incorrect. The appellant had miserably failed to show that these admissions were incorrectWe find no substance in these contentions. In the witness box both Shri John (RW. 1 ) and his eider brother (RW 3 )admitted their respective signatures on this entry (Ex.P. 29) in the Marriage RegisterThe eider brother (RW. 3) however, admitted that they had signed the Register, notwithstanding the fact that the age of Shri John was mentioned therein as 26 years. Both the brothers however, admitted that Shri Johns marriage was solemnised in St . Francis Xavier Church on. In view of the admissions of RWs 1 and 3, the High Court was right in holding that Ex.P.29 stood proved, and the entries therein were entitled to great weight. | 0 | 7,872 | 2,497 | ### Instruction:
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learned counsel and hold that Shri Mohana Rangam did not get automatically excluded. Both he and Shri Subramanyan were continuing candidates. Shri Subramanyan could not be declared elected as he had not obtained the required quota of 3, 201 votes. This takes us to the next question . Should all the votes that had polled in favour of the candidate (Shri John) who has been found by the Court to be statutorily disqualified for election, , be regarded as thrown away, and in consequence, the appellant, Shri Subramanyan, who secured 300 votes as against none obtained by Shri Mohana Rangam, be declared elected ?Again, the answer to this question, in our opinion, must be in tire negative. It is nobodys case that the electors who voted for Shri John, had at the time of election, knowledge or notice of the statutory disqualification of this candidate. On the contrary, they must have been under the impression that Shri John was a candidate whose nomination had been validly accepted by the returning officer. Had the electors notice of Shri Johns disqualification, how many of them would have voted for him and how many for the other continuing candidates, including Sarv Shri Subramanyan and Mohan Rangam, and in what preferential order, remains a question in the realm of speculation and unpredictability. 27. In the view we take, we are fortified by the observations in this Courts decision in R.M. Seshadri v. G.V. Pai (AIR. 1969 S.C. 692, at page 701). In that case, the election of R.M. Seshadri to the Madras Legislative Council was set aside on the ground that he was guilty of the corrupt practice of hiring or procuring motor vehicles to carry voters. The total votes polled were 12, 153. Since the voting was by a single transferable vote, three out of the five candidates were eliminated at different counts with the result that their votes were transferred to the second candidate named in the ballot. At the final count Seshadri received 5643 votes and his nearest rival, G.V. Pal received 5388 votes. The number of the voters who were carried in the hired or procured vehicles could not be ascertained. 28. Before this Court, it was contended that the election of Seshadri having been set aside, G.V. Pai who had polled the next highest number of votes should be declared elected. Hidayatullah C.J. speaking for the Court, rejected this contention with these observations:"This (question) will depend on our reaching the conclusion that but for the fact that voters were brought through this corrupt practise to the polling booths, the result of the election had been materially affected In a single transferable vote, it is very difficult to say how the voting would have gone, because if all the votes which Seshadri had got, had gone to one of the other candidates who got eliminated at the earlier counts, those candidates would have won. We cannot order a recount because those voters were not free from complicity. It would be speculating to decide how many of the voters were brought to the polling booths in car. We think that we are not in a position to declare Vasanta Pai as elected, because that would be merely a guess or surmise as to the nature of the voting which would have taken place if this corrupt practice had not been perpetrated." 29. The position in the instant case is no better. It is extremely difficult, if not impossible, to predicate what the voting pattern would have been if the electors knew at the time of election, that Shri John was not qualified to contest the election. In any case, Shri Subramanyan. was neither the sole continuing candidate, nor had he secured the requisite quota of votes. He cannot therefore, be declared elected. 30. The dictum of this Court in Viswanatha v. Konappa (supra) does not advance the case of the appellant, Shri Subramanyan. In that case, the election in question was not held according to the system of a single transferable vote. There were only two candidates, in the field for a single seat, and one of them was under a statutory disqualification, Shah J. (as he then was) speaking for the Court, held that the votes cast in favour of the disqualified candidate may be regarded as thrown away, even if the voters who had voted for him were unaware of the disqualification, and the candidate securing the next highest number of votes was declared elected. The learned Judge was however careful enough to add:"This is not to say that where there are more than two candidates in the field for a single seat, and one alone is disqualified, on proof of disqualification all the votes cast in his favour will be discarded and the candidate securing the next highest number of votes will be declared elected. In such a case, question of notice to the voters may assume, significance, for the voters may not, if aware of the disqualification, have voted for the disqualified candidate" 31. The ratio decidendi of Viswanatha v. Konappa is applicable only where (a) there are two contesting candidates and one of them is disqualified, . (b) and the election is on the basis of single non-transferable vote. Both these conditions do not exist in the present case. As already discussed, Shri Subramanyan appellant was not the sole surviving continuing candidate left in the field, after exclusion of the disqualified candidate, Shri John. The election in question was not held by mode of single transferable vote according to which a simple majority of votes secured ensures the success of a candidate, but by proportional representation with sing le transferable vote, under which system the success of a candidate normally depends on his securing the requisite quota. 32. However, the principle underlying the obiter in Viswanatha v. Konappa, which we have extracted, is applicable to the instant case because here, after the exclusion of the disqualified candidate, two continuing candidates were left in the field. 33.
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voted for him and how many for the other continuing candidates, including Sarv Shri Subramanyan and Mohan Rangam, and in what preferential order, remains a question in the realm of speculation and unpredictabilityIn the view we take, we are fortified by the observations in this Courts decision in R.M. Seshadri v. G.V. Pai (AIR. 1969 S.C. 692, at page 701). In that case, the election of R.M. Seshadri to the Madras Legislative Council was set aside on the ground that he was guilty of the corrupt practice of hiring or procuring motor vehicles to carry voters. The total votes polled were 12, 153. Since the voting was by a single transferable vote, three out of the five candidates were eliminated at different counts with the result that their votes were transferred to the second candidate named in the ballot. At the final count Seshadri received 5643 votes and his nearest rival, G.V. Pal received 5388 votes. The number of the voters who were carried in the hired or procured vehicles could not be ascertainedBefore this Court, it was contended that the election of Seshadri having been set aside, G.V. Pai who had polled the next highest number of votes should be declared elected. Hidayatullah C.J. speaking for the Court, rejected this contention with these observations:"This (question) will depend on our reaching the conclusion that but for the fact that voters were brought through this corrupt practise to the polling booths, the result of the election had been materially affected In a single transferable vote, it is very difficult to say how the voting would have gone, because if all the votes which Seshadri had got, had gone to one of the other candidates who got eliminated at the earlier counts, those candidates would have won. We cannot order a recount because those voters were not free from complicity. It would be speculating to decide how many of the voters were brought to the polling booths in car. We think that we are not in a position to declare Vasanta Pai as elected, because that would be merely a guess or surmise as to the nature of the voting which would have taken place if this corrupt practice had not been perpetrated."The position in the instant case is no better. It is extremely difficult, if not impossible, to predicate what the voting pattern would have been if the electors knew at the time of election, that Shri John was not qualified to contest the election. In any case, Shri Subramanyan. was neither the sole continuing candidate, nor had he secured the requisite quota of votes. He cannot therefore, be declared electedThe dictum of this Court in Viswanatha v. Konappa (supra) does not advance the case of the appellant, Shri Subramanyan. In that case, the election in question was not held according to the system of a single transferable vote. There were only two candidates, in the field for a single seat, and one of them was under a statutory disqualification, Shah J. (as he then was) speaking for the Court, held that the votes cast in favour of the disqualified candidate may be regarded as thrown away, even if the voters who had voted for him were unaware of the disqualification, and the candidate securing the next highest number of votes was declared elected. The learned Judge was however careful enough tos is not to say that where there are more than two candidates in the field for a single seat, and one alone is disqualified, on proof of disqualification all the votes cast in his favour will be discarded and the candidate securing the next highest number of votes will be declared elected. In such a case, question of notice to the voters may assume, significance, for the voters may not, if aware of the disqualification, have voted for the disqualified candidate"The ratio decidendi of Viswanatha v. Konappa is applicable only where (a) there are two contesting candidates and one of them is disqualified, . (b) and the election is on the basis of single non-transferable vote. Both these conditions do not exist in the present case. As already discussed, Shri Subramanyan appellant was not the sole surviving continuing candidate left in the field, after exclusion of the disqualified candidate, Shri John. The election in question was not held by mode of single transferable vote according to which a simple majority of votes secured ensures the success of a candidate, but by proportional representation with sing le transferable vote, under which system the success of a candidate normally depends on his securing the requisite quotaHowever, the principle underlying the obiter in Viswanatha v. Konappa, which we have extracted, is applicable to the instant case because here, after the exclusion of the disqualified candidate, two continuing candidates were left in the fieldWe find these contentions wholly devoid of meritThe above principle will apply with greater force in the instant case. Here, there are a number of clear admissions in prior declarations precisely and deliberately made in solemn documents by Shri John. These admissions were made ante litem motam during the decade preceding the election in question. These admissions were entitled to great weight. They had shifted the burden on the appellant (Shri John) to show that they were incorrect. The appellant had miserably failed to show that these admissions were incorrectWe find no substance in these contentions. In the witness box both Shri John (RW. 1 ) and his eider brother (RW 3 )admitted their respective signatures on this entry (Ex.P. 29) in the Marriage RegisterThe eider brother (RW. 3) however, admitted that they had signed the Register, notwithstanding the fact that the age of Shri John was mentioned therein as 26 years. Both the brothers however, admitted that Shri Johns marriage was solemnised in St . Francis Xavier Church on. In view of the admissions of RWs 1 and 3, the High Court was right in holding that Ex.P.29 stood proved, and the entries therein were entitled to great weight.
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HYDERABAD INDUSTRIES LTD Vs. COMMERCIAL TAX OFFICER | Civil Appeal No. 6246 of 2004 1. This appeal is directed against the judgment and order passed by High Court of Madras in Writ Petition No. 6169 of 2002, dated 01.04.2004 whereby and whereunder the Division Bench of the High Court by a well-reasoned order has rejected the writ petition filed by the Appellant-herein. The Appellant has filed the aforesaid Writ Petition, inter alia, questioning the order passed by the Tamil Nadu Taxation Special Tribunal, Chennai in Tax Case (Revision) No. 147 of 2000, dated 24.01.2001, whereby the Tribunal had allowed the Revenues appeal against the order passed by the Tamil Nadu Sales Tax Appellate Tribunal (Additional Bench), Chennai in T.A. No. 870 of 1993. 2. The assessment year in question is 1988-89. Since we are in complete agreement with the view expressed by the Division Bench of the High Court, we do not intend to delve into the facts of the case and also various submissions made by the learned Counsels for the parties. In the instant case, suffice it is to appreciate and confirm the correct principle of law. 3. The High Court while rejecting the writ petition, at paragraph 13 of the judgment has observed as under: ....Thus, the buyer pays the catalogue price less transport rebate allowed, irrespective of the amount paid for freight charges by the Assessee. Fluctuation in freight charges is not the concern of the buyer as he is bound to pay only the catalogue price or F.O.R. price. Thus, the agreed price being inclusive of freight subject to fixed transport rebate allowed, it would be a matter of indifference to the customer as to what is the amount of freight. 4. While enunciating so, the High Court has followed the decision of the Constitution Bench of this Court in the case of Tungabhadra Industries Ltd. Vs. The Commercial Tax Officer, Kurnool, . Therein, the Constitution Bench of this Court has observed as under: One other point which is involved in the appeal relates to the claim of the Appellant-company to a deduction in respect of the freight-charges included in the price of the commodity. Under Rule 5(1)(g) of the Turnover and Assessment Rules, in determining the net turnover of a dealer, he is entitled to have deducted from his gross turnover all amounts falling under the following two heads, when specified and charged for by the dealer separately, without including them in the price of the goods sold: (i) freight; (ii) ** ** ** The Appellant claimed exemption on a sum of Rs. 3,88,377-13-3 on the ground that it represented the freight in respect of the goods sold by the Appellant, asserting that they had been charged for separately. The assessing officer rejected the claim and this rejection was upheld by the departmental authorities and by the High Court in revision. It would be seen that in order to claim the benefit of this exemption the freight should (i) have been specified and charged for by the dealer separately, and (ii) the same should not have been included in the price of the goods sold. The learned Judges of the High Court held that neither of these conditions was satisfied by the bills produced by the Appellant. We consider, the decision of the High Court on this point was correct. In the specimen bill which the learned Counsel for the Appellants has placed before us, after setting out the quantity sold by weight (23.760 lb.) the price is specified as 15 annas 9 pies per lb. and the total amount of the price is determined at Rs. 23,388-12-0. From this the railway freight of Rs. 1,439-12-0 is deducted and the balance is shown as the sum on which sales tax has been computed. From the contents of this invoice it would be seen that the Appellant has charged a price inclusive of the railway freight and would therefore be outside the terms of Rule 5(1)(g) which requires that in order to enable a dealer to claim the deduction it should be charged for separately and not included in the price of goods sold. The conditions of the rule not having been complied with, the Appellant was not entitled to the deduction in respect of freight. 5. In our considered view, the facts of this case are similar to the facts noticed in the case of Tungabhadra Industries Ltd. Kurnool (supra). | 0[ds]2. The assessment year in question is 1988-89. Since we are in complete agreement with the view expressed by the Division Bench of the High Court, we do not intend to delve into the facts of the case and also various submissions made by the learned Counsels for the parties. In the instant case, suffice it is to appreciate and confirm the correct principle of law.4. While enunciating so, the High Court has followed the decision of the Constitution Bench of this Court in the case of Tungabhadra Industries Ltd. Vs. The Commercial Tax Officer, Kurnool, . Therein, the Constitution Bench of this Court has observed as under:One other point which is involved in the appeal relates to the claim of the Appellant-company to a deduction in respect of the freight-charges included in the price of the commodity. Under Rule 5(1)(g) of the Turnover and Assessment Rules, in determining the net turnover of a dealer, he is entitled to have deducted from his gross turnover all amounts falling under the following two heads, when specified and charged for by the dealer separately, without including them in the price of the goods sold:(i) freight;(ii) ** ** **The Appellant claimed exemption on a sum of Rs. 3,88,377-13-3 on the ground that it represented the freight in respect of the goods sold by the Appellant, asserting that they had been charged for separately. The assessing officer rejected the claim and this rejection was upheld by the departmental authorities and by the High Court in revision. It would be seen that in order to claim the benefit of this exemption the freight should (i) have been specified and charged for by the dealer separately, and (ii) the same should not have been included in the price of the goods sold. The learned Judges of the High Court held that neither of these conditions was satisfied by the bills produced by the Appellant. We consider, the decision of the High Court on this point was correct. In the specimen bill which the learned Counsel for the Appellants has placed before us, after setting out the quantity sold by weight (23.760 lb.) the price is specified as 15 annas 9 pies per lb. and the total amount of the price is determined at Rs. 23,388-12-0. From this the railway freight of Rs. 1,439-12-0 is deducted and the balance is shown as the sum on which sales tax has been computed. From the contents of this invoice it would be seen that the Appellant has charged a price inclusive of the railway freight and would therefore be outside the terms of Rule 5(1)(g) which requires that in order to enable a dealer to claim the deduction it should be charged for separately and not included in the price of goods sold. The conditions of the rule not having been complied with, the Appellant was not entitled to the deduction in respect of freight.5. In our considered view, the facts of this case are similar to the facts noticed in the case of Tungabhadra Industries Ltd. Kurnool (supra). | 0 | 829 | 586 | ### Instruction:
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Civil Appeal No. 6246 of 2004 1. This appeal is directed against the judgment and order passed by High Court of Madras in Writ Petition No. 6169 of 2002, dated 01.04.2004 whereby and whereunder the Division Bench of the High Court by a well-reasoned order has rejected the writ petition filed by the Appellant-herein. The Appellant has filed the aforesaid Writ Petition, inter alia, questioning the order passed by the Tamil Nadu Taxation Special Tribunal, Chennai in Tax Case (Revision) No. 147 of 2000, dated 24.01.2001, whereby the Tribunal had allowed the Revenues appeal against the order passed by the Tamil Nadu Sales Tax Appellate Tribunal (Additional Bench), Chennai in T.A. No. 870 of 1993. 2. The assessment year in question is 1988-89. Since we are in complete agreement with the view expressed by the Division Bench of the High Court, we do not intend to delve into the facts of the case and also various submissions made by the learned Counsels for the parties. In the instant case, suffice it is to appreciate and confirm the correct principle of law. 3. The High Court while rejecting the writ petition, at paragraph 13 of the judgment has observed as under: ....Thus, the buyer pays the catalogue price less transport rebate allowed, irrespective of the amount paid for freight charges by the Assessee. Fluctuation in freight charges is not the concern of the buyer as he is bound to pay only the catalogue price or F.O.R. price. Thus, the agreed price being inclusive of freight subject to fixed transport rebate allowed, it would be a matter of indifference to the customer as to what is the amount of freight. 4. While enunciating so, the High Court has followed the decision of the Constitution Bench of this Court in the case of Tungabhadra Industries Ltd. Vs. The Commercial Tax Officer, Kurnool, . Therein, the Constitution Bench of this Court has observed as under: One other point which is involved in the appeal relates to the claim of the Appellant-company to a deduction in respect of the freight-charges included in the price of the commodity. Under Rule 5(1)(g) of the Turnover and Assessment Rules, in determining the net turnover of a dealer, he is entitled to have deducted from his gross turnover all amounts falling under the following two heads, when specified and charged for by the dealer separately, without including them in the price of the goods sold: (i) freight; (ii) ** ** ** The Appellant claimed exemption on a sum of Rs. 3,88,377-13-3 on the ground that it represented the freight in respect of the goods sold by the Appellant, asserting that they had been charged for separately. The assessing officer rejected the claim and this rejection was upheld by the departmental authorities and by the High Court in revision. It would be seen that in order to claim the benefit of this exemption the freight should (i) have been specified and charged for by the dealer separately, and (ii) the same should not have been included in the price of the goods sold. The learned Judges of the High Court held that neither of these conditions was satisfied by the bills produced by the Appellant. We consider, the decision of the High Court on this point was correct. In the specimen bill which the learned Counsel for the Appellants has placed before us, after setting out the quantity sold by weight (23.760 lb.) the price is specified as 15 annas 9 pies per lb. and the total amount of the price is determined at Rs. 23,388-12-0. From this the railway freight of Rs. 1,439-12-0 is deducted and the balance is shown as the sum on which sales tax has been computed. From the contents of this invoice it would be seen that the Appellant has charged a price inclusive of the railway freight and would therefore be outside the terms of Rule 5(1)(g) which requires that in order to enable a dealer to claim the deduction it should be charged for separately and not included in the price of goods sold. The conditions of the rule not having been complied with, the Appellant was not entitled to the deduction in respect of freight. 5. In our considered view, the facts of this case are similar to the facts noticed in the case of Tungabhadra Industries Ltd. Kurnool (supra).
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0
### Explanation:
2. The assessment year in question is 1988-89. Since we are in complete agreement with the view expressed by the Division Bench of the High Court, we do not intend to delve into the facts of the case and also various submissions made by the learned Counsels for the parties. In the instant case, suffice it is to appreciate and confirm the correct principle of law.4. While enunciating so, the High Court has followed the decision of the Constitution Bench of this Court in the case of Tungabhadra Industries Ltd. Vs. The Commercial Tax Officer, Kurnool, . Therein, the Constitution Bench of this Court has observed as under:One other point which is involved in the appeal relates to the claim of the Appellant-company to a deduction in respect of the freight-charges included in the price of the commodity. Under Rule 5(1)(g) of the Turnover and Assessment Rules, in determining the net turnover of a dealer, he is entitled to have deducted from his gross turnover all amounts falling under the following two heads, when specified and charged for by the dealer separately, without including them in the price of the goods sold:(i) freight;(ii) ** ** **The Appellant claimed exemption on a sum of Rs. 3,88,377-13-3 on the ground that it represented the freight in respect of the goods sold by the Appellant, asserting that they had been charged for separately. The assessing officer rejected the claim and this rejection was upheld by the departmental authorities and by the High Court in revision. It would be seen that in order to claim the benefit of this exemption the freight should (i) have been specified and charged for by the dealer separately, and (ii) the same should not have been included in the price of the goods sold. The learned Judges of the High Court held that neither of these conditions was satisfied by the bills produced by the Appellant. We consider, the decision of the High Court on this point was correct. In the specimen bill which the learned Counsel for the Appellants has placed before us, after setting out the quantity sold by weight (23.760 lb.) the price is specified as 15 annas 9 pies per lb. and the total amount of the price is determined at Rs. 23,388-12-0. From this the railway freight of Rs. 1,439-12-0 is deducted and the balance is shown as the sum on which sales tax has been computed. From the contents of this invoice it would be seen that the Appellant has charged a price inclusive of the railway freight and would therefore be outside the terms of Rule 5(1)(g) which requires that in order to enable a dealer to claim the deduction it should be charged for separately and not included in the price of goods sold. The conditions of the rule not having been complied with, the Appellant was not entitled to the deduction in respect of freight.5. In our considered view, the facts of this case are similar to the facts noticed in the case of Tungabhadra Industries Ltd. Kurnool (supra).
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Shankar Sitaram Sontakke And Another Vs. Balkrishna Sitaram Sontakke And Others | family business would be either altogether stopped after the 31st March 1946, or would be run either by the arbitrators or the Commissioners and the profits accruing there from would be deposited in court for distribution among the parties according to their shares.This application was made on November 22, 1947. His Pleader, however, stated on April 6, 1948:"The application is abandoned by the applicant as he wishes to pursue his remedy by way of an independent suit for the grievance in the application",and the court passed the order : "The application is disposed of as it is not pressed". The learned Judges of the High Court in referring to this application observe thus:"It is obvious therefrom that really speaking the idea of the profits of several businesses after the 1st of April 1946 was present to the minds of the parties; but the parties did not care to ask that accounts of the other businesses will be taken up after the 1st April 1946. One of the businesses was a liquor business, which admittedly was to come to an end on the 31st of March 1946; but there was also another business; that was a kirana shop, which was not a very big business. But all the same it was there and there is force, therefore, in the contention which has been advanced on behalf of the appellants that it as not as if there has been an oversight on the part of the parties, but the parties knew that the businesses might go on afterwards; but if they were carried on, they did not particularly care for providing by the compromise decree for accounts of those businesses being taken after the 1st of April 1946."Having said all this they record the conclusion that the compromise did not expressly negative the right of the plaintiff to an account of motor business. We are unable to accept this conclusion. The observations quoted above negative the plaintiffs case about mistake or misunderstanding in regard to the true effect of the compromise and show that the plaintiff abandoned the right to account after the crucial date and the status of the parties thereafter changed into one of tenants in common. If the plaintiff really intended that accounts of the motor business or indeed of all other businesses were to be taken up to the date of the final decree, there was no point in mentioning the 31st March, 1946. The normal course, after the preliminary decree was passed by the court, was to divide all the property by the metes and bounds and to award monies as found on examination of the accounts right up to the date of the final decree. But for the compromise which limited the period of the account the plaintiff would have obtained the relief he is now seeking in the partition suit as accounts of would have been taken of all the businesses up to the date of the final decree. The plaintiff has himself to thank for preventing the natural course of events and for forbidding the accounts to be taken after the 31st March, 1946. The plaintiff on the other hand has no real grievance in the matter, for although the defendants 1 and 2, who continued to run the motor business, may have made some money with the help of the two old motor buses, the plaintiff whose keeneses to run the liquor business is apparent from the notice referred to above was not precluded from reaping the fruits of that business. It is hard to conceive that the plaintiff would have agreed to share his burden of the loss if the motor business has sustained any. We hold, therefore, that the compromise closed once for all the controvers about taking any account of the joint family businesses including the motor business after the 31st March, 1946 and the plaintiff is bound by the terms of the compromise and the consent decree following upon it.9. The obvious effect of this finding is that the plaintiff is barred by the principle of res judicata from reagitating the question in the present suit. It is well settled that a consent decree is as binding upon the parties thereto as a decree passed by invitum. The compromise having been found not to be vitiated by fraud, misrepresentation, misunderstanding or mistake, the decree passed thereon has the binding force of res judicata.10. We are also of opinion that the plaintiffs claim is barred by the provisions of Order II, Rule 2(3) of the Code of Civil Procedure. The plaintiff by confining his claim to account up to March 31, 1946, only, implicitly if not explicitly, relinquished his claim to the account for the subsequent period. Sub-rule 3 clearly lays down that if a person omits, except with the leave of the court, to sue for all reliefs to which he is entitled, he shall not afterwards sue for any relief so omitted. We do not agree with the High Court that the cause of action in the subsequent suit was different from the cause of action in the first suit. The cause of action in the first suit was the desire of the plaintiff to separate from his brothers and to divide the joint family property. That suit embraced the entire property without any reservation and was compromised, the plaintiff having abandoned his claim to account in respect to the motor business subsequent to March 31, 1946. His subsequent suit to enforce a part of the claim is founded on the same cause of action which he deliberately relinquished. We are clear, therefore, that the cause of action in the two suits being the same, the suit is barred under Order II, R. 2(3)of the Civil Procedure Code.11. As the suit is barred both by res judicata and Order II, Rule 2(3) of the Civil Procedure Code, no further question as to the applicability of Section 90 of the Indian Trusts Act can possibly arise under the circumstances. | 1[ds]7. It seems to us that upon a fair reading of the compromise arrived at between the parties in the circumstances then existing, the only legitimate conclusion possible is that the parties had agreed to confine the taking of all accounts up to March 31, 1946, and had closed the door to reopening them beyond that date. If the compromise was arrived at after full consideration by the parties and was not vitiated by fraud, misrepresentation, mistake or misunderstanding as held by the trial Court - a finding which was not interfered with by the High Court it follows that a matter once concluded between the parties who were dealing with each other at arms length cannot now bearrangement was apparently acceptable to all the brothers as being fair and reasonable and as not giving undue advantage to any party over the other. This being our construction of the compromise, it follows that the plaintiffs conduct in going back upon that arrangement by filing a fresh suit in regard to the motor business only is anything but honest. The plaint filed in the previous suit leaves no manner of doubt that the plaintiffs in that suit sought a complete division of all the family property both moveable and immoveable and a final determination of all the accounts in respect of the familysaid all this they record the conclusion that the compromise did not expressly negative the right of the plaintiff to an account of motor business. We are unable to accept this conclusion. The observations quoted above negative the plaintiffs case about mistake or misunderstanding in regard to the true effect of the compromise and show that the plaintiff abandoned the right to account after the crucial date and the status of the parties thereafter changed into one of tenants in common. If the plaintiff really intended that accounts of the motor business or indeed of all other businesses were to be taken up to the date of the final decree, there was no point in mentioning the 31st March, 1946. The normal course, after the preliminary decree was passed by the court, was to divide all the property by the metes and bounds and to award monies as found on examination of the accounts right up to the date of the final decree. But for the compromise which limited the period of the account the plaintiff would have obtained the relief he is now seeking in the partition suit as accounts of would have been taken of all the businesses up to the date of the final decree. The plaintiff has himself to thank for preventing the natural course of events and for forbidding the accounts to be taken after the 31st March, 1946. The plaintiff on the other hand has no real grievance in the matter, for although the defendants 1 and 2, who continued to run the motor business, may have made some money with the help of the two old motor buses, the plaintiff whose keeneses to run the liquor business is apparent from the notice referred to above was not precluded from reaping the fruits of that business. It is hard to conceive that the plaintiff would have agreed to share his burden of the loss if the motor business has sustained any. We hold, therefore, that the compromise closed once for all the controvers about taking any account of the joint family businesses including the motor business after the 31st March, 1946 and the plaintiff is bound by the terms of the compromiseThe obvious effect of this finding is that the plaintiff is barred by the principle of res judicata from reagitating the question in the present suit. It is well settled that a consent decree is as binding upon the parties thereto as a decree passed by invitum. The compromise having been found not to be vitiated by fraud, misrepresentation, misunderstanding or mistake, the decree passed thereon has the binding force of res judicata.10. We are also of opinion that the plaintiffs claim is barred by the provisions of Order II, Rule 2(3) of the Code of Civil Procedure. The plaintiff by confining his claim to account up to March 31, 1946, only, implicitly if not explicitly, relinquished his claim to the account for the subsequent period. Sub-rule 3 clearly lays down that if a person omits, except with the leave of the court, to sue for all reliefs to which he is entitled, he shall not afterwards sue for any relief so omitted. We do not agree with the High Court that the cause of action in the subsequent suit was different from the cause of action in the first suit. The cause of action in the first suit was the desire of the plaintiff to separate from his brothers and to divide the joint family property. That suit embraced the entire property without any reservation and was compromised, the plaintiff having abandoned his claim to account in respect to the motor business subsequent to March 31, 1946. His subsequent suit to enforce a part of the claim is founded on the same cause of action which he deliberately relinquished. We are clear, therefore, that the cause of action in the two suits being the same, the suit is barred under Order II, R. 2(3)of the Civil Procedure Code.11. As the suit is barred both by res judicata and Order II, Rule 2(3) of the Civil Procedure Code, no further question as to the applicability of Section 90 of the Indian Trusts Act can possibly arise under the circumstances. | 1 | 3,231 | 1,004 | ### 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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family business would be either altogether stopped after the 31st March 1946, or would be run either by the arbitrators or the Commissioners and the profits accruing there from would be deposited in court for distribution among the parties according to their shares.This application was made on November 22, 1947. His Pleader, however, stated on April 6, 1948:"The application is abandoned by the applicant as he wishes to pursue his remedy by way of an independent suit for the grievance in the application",and the court passed the order : "The application is disposed of as it is not pressed". The learned Judges of the High Court in referring to this application observe thus:"It is obvious therefrom that really speaking the idea of the profits of several businesses after the 1st of April 1946 was present to the minds of the parties; but the parties did not care to ask that accounts of the other businesses will be taken up after the 1st April 1946. One of the businesses was a liquor business, which admittedly was to come to an end on the 31st of March 1946; but there was also another business; that was a kirana shop, which was not a very big business. But all the same it was there and there is force, therefore, in the contention which has been advanced on behalf of the appellants that it as not as if there has been an oversight on the part of the parties, but the parties knew that the businesses might go on afterwards; but if they were carried on, they did not particularly care for providing by the compromise decree for accounts of those businesses being taken after the 1st of April 1946."Having said all this they record the conclusion that the compromise did not expressly negative the right of the plaintiff to an account of motor business. We are unable to accept this conclusion. The observations quoted above negative the plaintiffs case about mistake or misunderstanding in regard to the true effect of the compromise and show that the plaintiff abandoned the right to account after the crucial date and the status of the parties thereafter changed into one of tenants in common. If the plaintiff really intended that accounts of the motor business or indeed of all other businesses were to be taken up to the date of the final decree, there was no point in mentioning the 31st March, 1946. The normal course, after the preliminary decree was passed by the court, was to divide all the property by the metes and bounds and to award monies as found on examination of the accounts right up to the date of the final decree. But for the compromise which limited the period of the account the plaintiff would have obtained the relief he is now seeking in the partition suit as accounts of would have been taken of all the businesses up to the date of the final decree. The plaintiff has himself to thank for preventing the natural course of events and for forbidding the accounts to be taken after the 31st March, 1946. The plaintiff on the other hand has no real grievance in the matter, for although the defendants 1 and 2, who continued to run the motor business, may have made some money with the help of the two old motor buses, the plaintiff whose keeneses to run the liquor business is apparent from the notice referred to above was not precluded from reaping the fruits of that business. It is hard to conceive that the plaintiff would have agreed to share his burden of the loss if the motor business has sustained any. We hold, therefore, that the compromise closed once for all the controvers about taking any account of the joint family businesses including the motor business after the 31st March, 1946 and the plaintiff is bound by the terms of the compromise and the consent decree following upon it.9. The obvious effect of this finding is that the plaintiff is barred by the principle of res judicata from reagitating the question in the present suit. It is well settled that a consent decree is as binding upon the parties thereto as a decree passed by invitum. The compromise having been found not to be vitiated by fraud, misrepresentation, misunderstanding or mistake, the decree passed thereon has the binding force of res judicata.10. We are also of opinion that the plaintiffs claim is barred by the provisions of Order II, Rule 2(3) of the Code of Civil Procedure. The plaintiff by confining his claim to account up to March 31, 1946, only, implicitly if not explicitly, relinquished his claim to the account for the subsequent period. Sub-rule 3 clearly lays down that if a person omits, except with the leave of the court, to sue for all reliefs to which he is entitled, he shall not afterwards sue for any relief so omitted. We do not agree with the High Court that the cause of action in the subsequent suit was different from the cause of action in the first suit. The cause of action in the first suit was the desire of the plaintiff to separate from his brothers and to divide the joint family property. That suit embraced the entire property without any reservation and was compromised, the plaintiff having abandoned his claim to account in respect to the motor business subsequent to March 31, 1946. His subsequent suit to enforce a part of the claim is founded on the same cause of action which he deliberately relinquished. We are clear, therefore, that the cause of action in the two suits being the same, the suit is barred under Order II, R. 2(3)of the Civil Procedure Code.11. As the suit is barred both by res judicata and Order II, Rule 2(3) of the Civil Procedure Code, no further question as to the applicability of Section 90 of the Indian Trusts Act can possibly arise under the circumstances.
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1
### Explanation:
7. It seems to us that upon a fair reading of the compromise arrived at between the parties in the circumstances then existing, the only legitimate conclusion possible is that the parties had agreed to confine the taking of all accounts up to March 31, 1946, and had closed the door to reopening them beyond that date. If the compromise was arrived at after full consideration by the parties and was not vitiated by fraud, misrepresentation, mistake or misunderstanding as held by the trial Court - a finding which was not interfered with by the High Court it follows that a matter once concluded between the parties who were dealing with each other at arms length cannot now bearrangement was apparently acceptable to all the brothers as being fair and reasonable and as not giving undue advantage to any party over the other. This being our construction of the compromise, it follows that the plaintiffs conduct in going back upon that arrangement by filing a fresh suit in regard to the motor business only is anything but honest. The plaint filed in the previous suit leaves no manner of doubt that the plaintiffs in that suit sought a complete division of all the family property both moveable and immoveable and a final determination of all the accounts in respect of the familysaid all this they record the conclusion that the compromise did not expressly negative the right of the plaintiff to an account of motor business. We are unable to accept this conclusion. The observations quoted above negative the plaintiffs case about mistake or misunderstanding in regard to the true effect of the compromise and show that the plaintiff abandoned the right to account after the crucial date and the status of the parties thereafter changed into one of tenants in common. If the plaintiff really intended that accounts of the motor business or indeed of all other businesses were to be taken up to the date of the final decree, there was no point in mentioning the 31st March, 1946. The normal course, after the preliminary decree was passed by the court, was to divide all the property by the metes and bounds and to award monies as found on examination of the accounts right up to the date of the final decree. But for the compromise which limited the period of the account the plaintiff would have obtained the relief he is now seeking in the partition suit as accounts of would have been taken of all the businesses up to the date of the final decree. The plaintiff has himself to thank for preventing the natural course of events and for forbidding the accounts to be taken after the 31st March, 1946. The plaintiff on the other hand has no real grievance in the matter, for although the defendants 1 and 2, who continued to run the motor business, may have made some money with the help of the two old motor buses, the plaintiff whose keeneses to run the liquor business is apparent from the notice referred to above was not precluded from reaping the fruits of that business. It is hard to conceive that the plaintiff would have agreed to share his burden of the loss if the motor business has sustained any. We hold, therefore, that the compromise closed once for all the controvers about taking any account of the joint family businesses including the motor business after the 31st March, 1946 and the plaintiff is bound by the terms of the compromiseThe obvious effect of this finding is that the plaintiff is barred by the principle of res judicata from reagitating the question in the present suit. It is well settled that a consent decree is as binding upon the parties thereto as a decree passed by invitum. The compromise having been found not to be vitiated by fraud, misrepresentation, misunderstanding or mistake, the decree passed thereon has the binding force of res judicata.10. We are also of opinion that the plaintiffs claim is barred by the provisions of Order II, Rule 2(3) of the Code of Civil Procedure. The plaintiff by confining his claim to account up to March 31, 1946, only, implicitly if not explicitly, relinquished his claim to the account for the subsequent period. Sub-rule 3 clearly lays down that if a person omits, except with the leave of the court, to sue for all reliefs to which he is entitled, he shall not afterwards sue for any relief so omitted. We do not agree with the High Court that the cause of action in the subsequent suit was different from the cause of action in the first suit. The cause of action in the first suit was the desire of the plaintiff to separate from his brothers and to divide the joint family property. That suit embraced the entire property without any reservation and was compromised, the plaintiff having abandoned his claim to account in respect to the motor business subsequent to March 31, 1946. His subsequent suit to enforce a part of the claim is founded on the same cause of action which he deliberately relinquished. We are clear, therefore, that the cause of action in the two suits being the same, the suit is barred under Order II, R. 2(3)of the Civil Procedure Code.11. As the suit is barred both by res judicata and Order II, Rule 2(3) of the Civil Procedure Code, no further question as to the applicability of Section 90 of the Indian Trusts Act can possibly arise under the circumstances.
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Vizagapatam Dock Labour Board Vs. Stevedores Association, Vishakhapatnam & Ors | of retrenchment compensation to certain workmen who had registered themselves as workmen under the Dock Labour Board. They had filed a claim against the permanent Stevedores under whom they were working originally. The learned Judge, after a consideration of the Scheme framed for the Cochin Port, which is substantially similar to the one before us, held that the Board was the employer of the workmen. We are not inclined to agree with this decision.28. We may also refer to the decision of the Calcutta High Court in A. C. Roy and Co. Ltd. v. Taslim, 71 Cal WN 531 = (AIR 1968 Cal 114 ). There is no doubt the question arose in respect of a claim under the Workmens Compensation Act, 1923. The learned Chief Justice, after a brief analysis of the Act and the Scheme framed for the Calcutta Port, held that when the Administrative Body of the Board allocated a worker in the Reserve Pool to the registered employer, then for the time being and for the purpose of the work concerned, that worker becomes an employee under the registered employer; and in that decision the Court came to the conclusion that the particular worker concerned was at the material time under the employ of the Stevedore. When that is the position with regard to a workman in the Reserve pool, it stands to reason that the monthly worker who is engaged by a registered employer under a contract on a monthly basis is an employee of such registered employer.29. The matter can also be considered from another point of view, viz., can it be stated that the Board is carrying on an industry, so as to attract the provisions of the Industrial Disputes Act? We have already referred to the various circumstances which will show that there is no employment as such of the dock worker by the Board. As observed by this Court in Gymkhana Club Union v. Management 1968-1 SCR 742 at p. 752 = (AIR 1968 SC 554 at p. 561):"What matters is not the nexus between the employee and the product of the employers efforts but the nature of the employers occupation. If his work cannot be described as an industry his workmen are not industrial workmen and the disputes arising between them are not industrial disputes. The cardinal test is thus to find out whether there is an industry according to the denotation of the word in the first part. The second part will then show what will be included from the angle of employees."Dealing with the definition of industry, this Court further observed:"The definition of industry is in two parts. In its first part it means any business, trade, undertaking, manufacture or calling of employers. This part of the definition determines an industry by reference to occupation of employers in respect of certain activities. These activities are specified by five words and they determine what an industry is and what the cognate expression industrial is intended to convey. This is the denotation of the term or what the word denotes. We shall presently discuss what the words business, trade, undertaking, manufacture or calling comprehend. The second part views the matter from the angle of employees and is designed to include something more in what the term primarily denotes. By the second part of the definition any calling, service, employment, handicraft or industrial occupation or avocation of workmen is included in the concept of industry. This part gives the extended connotation. If the activity can be described as an industry with reference to the occupation of the employers, the ambit of the industry, under the force of the second part, takes in the different kinds of activity of the employees mentioned in the second part. But the second part standing alone cannot define industry. An industry is not to be found in every case of employment or service."Dealing with the expression industrial dispute in the Industrial Disputes Act, this Court further proceeds to state, in the above decision at p. 757 (of SCR) = (at p. 564 of AIR):"...the words are industrial dispute and not trade dispute. Trade is only one aspect of industrial activity; business and manufacture are two others. The words also is not industry in the abstract which means diligence or assiduity in any task or effort but a branch of productive labour. This requires co-operation in some form between employers and workmen and the result is directly the product of this association but not necessarily commercial".and wound up the discussion, at p. 758, thus:"Industry is the nexus between employers and employees and it is this nexus which brings two distinct bodies together to produce a result."30. Applying the above principles to the case on hand,in our opinion it is clear that it cannot be stated that the Board functioning under the Act and the Scheme, carries on any industry so as to attract the provisions of the Industrial Disputes Act.As a claim for any type of bonus can be met only from the actual employer in respect of any industry and as we have held thatthe Board is neither the employer nor carries on any industry, it follows that the Industrial Tribunal was wrong in directing the Board to pay bonus for the years in question.In this view the order of the Industrial Tribunal, dated May 24, 1968 has to be set aside. But, as the claim of the workman against the Stevedores Association and its members who are parties to the Reference has to be considered and adjudicated by the Industrial Tribunal, I. D. No. 10 of 1967 has to be remanded to the Industrial Tribunal concerned for disposal according to law. The Tribunal will be at liberty to call upon the parties concerned to file supplementary statements and permit them to adduce further evidence, oral and documentary, which may be considered necessary; but it is made clear that the Dock Labour Board, the appellant, will be completely out of the picture in the remand proceedings. | 1[ds]10. Having due regard to the nature of the claim and the basis on which the Tribunal itself has proceeded, we are satisfied that the claim for bonus has been made by the Unions specifically against the Stevedores Association and its members and, as such, the Tribunal was not justified in making the Board liable.11. In the statement of claim filed by the Port Khalasis Union, in paragraph 2 it is stated that since the Stevedores are the registered employers of the Dock Labour Board, the bonus should be settled by the Stevedores Association only. In paragraph 14 the Union has stated that the plea of the Stevedores at Visakhapatnam that they are not concerned with the demand for bonus since the workers are registered with the Dock Labour Board is wrong, baseless and aimed at contusing the issue. After referring to the agreements arrived at between the Stevedores workmen and the Stevedores at Bombay. Calcutta, Cochin and Madras, the Union has stated in Para 15 that the Stevedores at Visakhapatnam Port are in no way different and they cannot disclaim their responsibilities for payment of bonus to the workmen.The Stevedores Association no doubt has stated that the Dock workers are the workmen of the Board as all the ingredients of master and servant exist as between the Board and the dock workers. The Board has categorically stated in its written statement that the dock workers claim against the Stevedores should not be allowed to be converted by the Stevedores into a claim against the Board. The Board has further specifically pleaded that no award could be passed against it contrary to the claim made by the dock workers themselves.14. The various averments contained in the statements referred to above will clearly show that the claim for payment of bonus by the dock workers was essentially and in the main directed against the Stevedores Association and its members. Otherwise a reference by the Union to the prosperity and lucrative business conducted by the Stevedores and the large profits made by them will have no relevancy at all. No doubt here and there are certain averments regarding the Board but so far as we could see, no specific claim for payment of bonus as against the Board has been made. On the other hand the claim is that the Board on behalf of the Stevedores in Visakhapatnam can pay the bonus claimed by the Union. The statement filed by the Stevedores Association also makes it clear that they understood the claim by the workmen as directed against them because it makes various averments to establish that the workmen have no claim as against them as the Stevedores Association or its members are not the employers of the workmen. The Board has specifically stated that a claim made against the Stevedores should not be converted into a claim made against the Board and no award can be passed contrary to the claim of the workmen themselves.The observation extracted earlier shows that the Tribunal has also proceeded on the basis that the claim by the workmen has to be adjudicated upon on the basis that it is the liability of the Stevedores. But, unfortunately, in the latter part of the award the Tribunal has mixed up the discussion regarding the liability of the Board or the Stevedores Association and has ultimately held that the Board is liable for payment of bonus. No doubt the basis for this conclusion is that the Board is the employer of the dock workers. The correctness of the view about the Board being the employer of the dock workers will be considered by us when we deal with the second contention of the learned Attorney General. To conclude on the first aspect the learned Attorney General is well founded in his contention that in view of the pleadings and the nature of the claim made by the workmen the award making the Board liable for payment of bonus is not correct.15. Normally, our decision accepting the first contention of the learned Attorney General is enough to dispose of the appeal. But, as the Tribunal has adjudicated upon the contention of the Board that it is not the employer of the dock workers and held against it, we shall proceed to consider the second contention of the learned Attorney General.16. In order to appreciate the relationship between the Board, the dock workers and the Stevedores Association, it is necessary to refer to certain provisions of the Act and the Scheme.But before we do so, we can broadly set out how the work of loading and unloading of ships in the port of Visakhapatnam is being done. The Board maintains a Dock Labour pool. The shipping companies have their agents at Visakhapatnam. The Stevedores enter into contracts with thefor the loading and unloading of cargo. The contracts contain clauses regarding the rate per ton of cargo payable to the Stevedores who handle the loading or the unloading of cargo. The shipping agents inform the Stevedores about the ship that is due to arrive as also the nature and quantity of the cargo to be loaded or unloaded. The Stevedores inform the Board about the quality of cargo to be loaded or unloaded and place an indent stating the approximate labour force that may be required for the said purpose. The Board supplies the labour force as asked for. Along with the labour force the Board desputes two supervisors who are called the loading mazdoors and the tindal. The Stevedores employ one Foreman for the entire operation of either loading or unloading. The duty of the Foreman appears to be to see that the cargo is not damaged and that it is properly handled by the labour force supplied by the Board. The Stevedores have to carry on the work with the labour force supplied by the Board and they cannot engage outside labour for the work. The Stevedores pay to the Board for the services of the workers supplied by it. Over and above the wages due to the labourers and paid to the Board the Stevedores have also to pay 105 per cent of the actual wages to the Board known as General and Welfare Levy. The Board utilises this additional amount for making certain payments to the workers. The Stevedores cannot take any disciplinary action against the workmen but, on the other hand, they have to complain to the Board. The Board takes the necessary disciplinary action against the workers concerned. It fixes the rates of wages to be paid by the Stevedores and collects the same from them and pays to the workers. A particular gang of workmen may work for one Stevedore on a particular day and on the next day they may work for another Stevedore. In fact it may even happen that one gang of workmen work for different Stevedores in the course of the same day.We have rather elaborately gone into the various matters dealt gone into the various matters dealt with under the Act and the Scheme as that will give a true picture of the nature of the functions and duties that the Board discharges in respect of the work carried on in the port.From the various provisions of the Act and the Scheme referred to above, it is evident that the Board is a statutory body charged with the duty of administering the Scheme, the object of which is to ensure greater regularity of employment, for dock workers and to secure that an adequate number of dock workers are available for the efficient performance of dock work. The Board is an autonomous body, competent to determine and prescribe the wages, allowances and other conditions of service of the Dock workers. The purport of the Scheme is that the entire body of workers should be under the control and supervision of the Board. The registered employers are allocated monthly workers by the Administrative Body and the Administrative Body supplies, whenever necessary, the labour force to the Stevedores from the Reserve Pool. The workmen who are allotted to the registered employers are to do the work under the control and supervision of the registered employers and to act under their directions. The registered employers pay the wages due to the workers to the Administrative Body and the latter, in turn, as agent of the registered employers, pay them over to the concerned workmen.24.All these circumstances, in our opinion, prima facie establish that the Board cannot be considered to be the employer of the Dock Labour workmen. In fact, the various provisions referred to in the Scheme clearly show that the registered employer to whom the labour force is allotted by the Board is the employer whose work of loading or unloading of ships is done by the dock workers allotted to them.25.Mr. Srinivasamurthy, learned counsel for the respondent,referred us to certain circumstances to support his contention that the relationship ofs between the Board and the dock workers.Some of those circumstances are recruitment and registration of the dock labour force, fixation of wages and dearness allowance, payment of workmens compensation, taking of disciplinary action and prohibition against employment of workmen who are not registered with the Board. These circumstances, in our opinion, do not establish a relationship of employer and employee between the Board and the dock labour. The functions referred to above are discharged by the Board under the Scheme, the object of which, as mentioned earlier, is to ensure greater regularity of employment for dock workers and to secure that an adequate number of dock workers is available for the efficient performance of dock work.It is with this purpose in view, that the Scheme has provided for various matters and considerable duties and responsibilities are cast on the Board in this regard. But we have also already pointed out that under(5) of cl. 36 a registered dock worker, when allotted for employment under a registered employer, shall carry out his duties in accordance with the directions of such registered employer and cl. 11 (e) also makes it clear that in the matter of allocation of registered dock workers in the Reserve Pool to registered employers, the Administrative Body shall be deemed to act as agent for the employer.Though the contributions for the Dock Workers Fund as well as the wages and other earnings due to a worker are paid by the registered employer to the Board at the rates fixed by it, the latter passes on the same to the dock worker concerned, as agent of the registered employer, under cl. 11 (f) (iii). Further, the definition of the expression dock worker and employer under S. 2 (b) and (c) respectively of the Act and the definition of dock employer and monthly worker in cls. 3 (g) and (k) respectively of the Scheme and the obligation cast under cl. 36 (5) of the Scheme on a registered dock worker,when allocated for employment under a registered employer to carry out his duties in accordance with the directions of the latter and the provisions contained in cl. 37 (5) of the Scheme regarding payment by a registered employer to the Administrative Body of the gross wages due to the dock worker andthe implied condition of contract between the registered dock worker and the registered employer under cl. 40, read along with the provisions regarding the functions of the Board, in our view, clearly lead to the conclusion that the Board cannot be considered to be the employer of the dock workmen and there is no relationship of master and servant between the two.We are not inclined to agree with thishave already referred to the various circumstances which will show that there is no employment as such of the dock worker by the Board.Applying the above principles to the case on hand,in our opinion it is clear that it cannot be stated that the Board functioning under the Act and the Scheme, carries on any industry so as to attract the provisions of the Industrial Disputes Act.As a claim for any type of bonus can be met only from the actual employer in respect of any industry and as we have held thatthe Board is neither the employer nor carries on any industry, it follows that the Industrial Tribunal was wrong in directing the Board to pay bonus for the years in question.In this view the order of the Industrial Tribunal, dated May 24, 1968 has to be set aside. But, as the claim of the workman against the Stevedores Association and its members who are parties to the Reference has to be considered and adjudicated by the Industrial Tribunal, I. D. No. 10 of 1967 has to be remanded to the Industrial Tribunal concerned for disposal according to law. The Tribunal will be at liberty to call upon the parties concerned to file supplementary statements and permit them to adduce further evidence, oral and documentary, which may be considered necessary; but it is made clear that the Dock Labour Board, the appellant, will be completely out of the picture in the remand proceedings. | 1 | 7,070 | 2,341 | ### Instruction:
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of retrenchment compensation to certain workmen who had registered themselves as workmen under the Dock Labour Board. They had filed a claim against the permanent Stevedores under whom they were working originally. The learned Judge, after a consideration of the Scheme framed for the Cochin Port, which is substantially similar to the one before us, held that the Board was the employer of the workmen. We are not inclined to agree with this decision.28. We may also refer to the decision of the Calcutta High Court in A. C. Roy and Co. Ltd. v. Taslim, 71 Cal WN 531 = (AIR 1968 Cal 114 ). There is no doubt the question arose in respect of a claim under the Workmens Compensation Act, 1923. The learned Chief Justice, after a brief analysis of the Act and the Scheme framed for the Calcutta Port, held that when the Administrative Body of the Board allocated a worker in the Reserve Pool to the registered employer, then for the time being and for the purpose of the work concerned, that worker becomes an employee under the registered employer; and in that decision the Court came to the conclusion that the particular worker concerned was at the material time under the employ of the Stevedore. When that is the position with regard to a workman in the Reserve pool, it stands to reason that the monthly worker who is engaged by a registered employer under a contract on a monthly basis is an employee of such registered employer.29. The matter can also be considered from another point of view, viz., can it be stated that the Board is carrying on an industry, so as to attract the provisions of the Industrial Disputes Act? We have already referred to the various circumstances which will show that there is no employment as such of the dock worker by the Board. As observed by this Court in Gymkhana Club Union v. Management 1968-1 SCR 742 at p. 752 = (AIR 1968 SC 554 at p. 561):"What matters is not the nexus between the employee and the product of the employers efforts but the nature of the employers occupation. If his work cannot be described as an industry his workmen are not industrial workmen and the disputes arising between them are not industrial disputes. The cardinal test is thus to find out whether there is an industry according to the denotation of the word in the first part. The second part will then show what will be included from the angle of employees."Dealing with the definition of industry, this Court further observed:"The definition of industry is in two parts. In its first part it means any business, trade, undertaking, manufacture or calling of employers. This part of the definition determines an industry by reference to occupation of employers in respect of certain activities. These activities are specified by five words and they determine what an industry is and what the cognate expression industrial is intended to convey. This is the denotation of the term or what the word denotes. We shall presently discuss what the words business, trade, undertaking, manufacture or calling comprehend. The second part views the matter from the angle of employees and is designed to include something more in what the term primarily denotes. By the second part of the definition any calling, service, employment, handicraft or industrial occupation or avocation of workmen is included in the concept of industry. This part gives the extended connotation. If the activity can be described as an industry with reference to the occupation of the employers, the ambit of the industry, under the force of the second part, takes in the different kinds of activity of the employees mentioned in the second part. But the second part standing alone cannot define industry. An industry is not to be found in every case of employment or service."Dealing with the expression industrial dispute in the Industrial Disputes Act, this Court further proceeds to state, in the above decision at p. 757 (of SCR) = (at p. 564 of AIR):"...the words are industrial dispute and not trade dispute. Trade is only one aspect of industrial activity; business and manufacture are two others. The words also is not industry in the abstract which means diligence or assiduity in any task or effort but a branch of productive labour. This requires co-operation in some form between employers and workmen and the result is directly the product of this association but not necessarily commercial".and wound up the discussion, at p. 758, thus:"Industry is the nexus between employers and employees and it is this nexus which brings two distinct bodies together to produce a result."30. Applying the above principles to the case on hand,in our opinion it is clear that it cannot be stated that the Board functioning under the Act and the Scheme, carries on any industry so as to attract the provisions of the Industrial Disputes Act.As a claim for any type of bonus can be met only from the actual employer in respect of any industry and as we have held thatthe Board is neither the employer nor carries on any industry, it follows that the Industrial Tribunal was wrong in directing the Board to pay bonus for the years in question.In this view the order of the Industrial Tribunal, dated May 24, 1968 has to be set aside. But, as the claim of the workman against the Stevedores Association and its members who are parties to the Reference has to be considered and adjudicated by the Industrial Tribunal, I. D. No. 10 of 1967 has to be remanded to the Industrial Tribunal concerned for disposal according to law. The Tribunal will be at liberty to call upon the parties concerned to file supplementary statements and permit them to adduce further evidence, oral and documentary, which may be considered necessary; but it is made clear that the Dock Labour Board, the appellant, will be completely out of the picture in the remand proceedings.
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true picture of the nature of the functions and duties that the Board discharges in respect of the work carried on in the port.From the various provisions of the Act and the Scheme referred to above, it is evident that the Board is a statutory body charged with the duty of administering the Scheme, the object of which is to ensure greater regularity of employment, for dock workers and to secure that an adequate number of dock workers are available for the efficient performance of dock work. The Board is an autonomous body, competent to determine and prescribe the wages, allowances and other conditions of service of the Dock workers. The purport of the Scheme is that the entire body of workers should be under the control and supervision of the Board. The registered employers are allocated monthly workers by the Administrative Body and the Administrative Body supplies, whenever necessary, the labour force to the Stevedores from the Reserve Pool. The workmen who are allotted to the registered employers are to do the work under the control and supervision of the registered employers and to act under their directions. The registered employers pay the wages due to the workers to the Administrative Body and the latter, in turn, as agent of the registered employers, pay them over to the concerned workmen.24.All these circumstances, in our opinion, prima facie establish that the Board cannot be considered to be the employer of the Dock Labour workmen. In fact, the various provisions referred to in the Scheme clearly show that the registered employer to whom the labour force is allotted by the Board is the employer whose work of loading or unloading of ships is done by the dock workers allotted to them.25.Mr. Srinivasamurthy, learned counsel for the respondent,referred us to certain circumstances to support his contention that the relationship ofs between the Board and the dock workers.Some of those circumstances are recruitment and registration of the dock labour force, fixation of wages and dearness allowance, payment of workmens compensation, taking of disciplinary action and prohibition against employment of workmen who are not registered with the Board. These circumstances, in our opinion, do not establish a relationship of employer and employee between the Board and the dock labour. The functions referred to above are discharged by the Board under the Scheme, the object of which, as mentioned earlier, is to ensure greater regularity of employment for dock workers and to secure that an adequate number of dock workers is available for the efficient performance of dock work.It is with this purpose in view, that the Scheme has provided for various matters and considerable duties and responsibilities are cast on the Board in this regard. But we have also already pointed out that under(5) of cl. 36 a registered dock worker, when allotted for employment under a registered employer, shall carry out his duties in accordance with the directions of such registered employer and cl. 11 (e) also makes it clear that in the matter of allocation of registered dock workers in the Reserve Pool to registered employers, the Administrative Body shall be deemed to act as agent for the employer.Though the contributions for the Dock Workers Fund as well as the wages and other earnings due to a worker are paid by the registered employer to the Board at the rates fixed by it, the latter passes on the same to the dock worker concerned, as agent of the registered employer, under cl. 11 (f) (iii). Further, the definition of the expression dock worker and employer under S. 2 (b) and (c) respectively of the Act and the definition of dock employer and monthly worker in cls. 3 (g) and (k) respectively of the Scheme and the obligation cast under cl. 36 (5) of the Scheme on a registered dock worker,when allocated for employment under a registered employer to carry out his duties in accordance with the directions of the latter and the provisions contained in cl. 37 (5) of the Scheme regarding payment by a registered employer to the Administrative Body of the gross wages due to the dock worker andthe implied condition of contract between the registered dock worker and the registered employer under cl. 40, read along with the provisions regarding the functions of the Board, in our view, clearly lead to the conclusion that the Board cannot be considered to be the employer of the dock workmen and there is no relationship of master and servant between the two.We are not inclined to agree with thishave already referred to the various circumstances which will show that there is no employment as such of the dock worker by the Board.Applying the above principles to the case on hand,in our opinion it is clear that it cannot be stated that the Board functioning under the Act and the Scheme, carries on any industry so as to attract the provisions of the Industrial Disputes Act.As a claim for any type of bonus can be met only from the actual employer in respect of any industry and as we have held thatthe Board is neither the employer nor carries on any industry, it follows that the Industrial Tribunal was wrong in directing the Board to pay bonus for the years in question.In this view the order of the Industrial Tribunal, dated May 24, 1968 has to be set aside. But, as the claim of the workman against the Stevedores Association and its members who are parties to the Reference has to be considered and adjudicated by the Industrial Tribunal, I. D. No. 10 of 1967 has to be remanded to the Industrial Tribunal concerned for disposal according to law. The Tribunal will be at liberty to call upon the parties concerned to file supplementary statements and permit them to adduce further evidence, oral and documentary, which may be considered necessary; but it is made clear that the Dock Labour Board, the appellant, will be completely out of the picture in the remand proceedings.
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Links Advertisers & Business Promoters Vs. Commissioner, Corporation Of The City Ofb | that the article should face or have its front toward, opposite or over against the house or the street. In our opinion the word "fronting" has been used in the proviso not in any leg al or technical sense but as used in ordinary parlance. It is not a term of art but one that signifies its meaning according to common notions. For these reasons, therefore, we are clearly of the opinion that as the advertisements upon the hoardings in the instant case were undoubtedly facing or fronting the street they were exigible to tax and the fact that they were a f[axed on the earth which formed the compound of the railway premises would make no difference in view of the plain and unambiguous language of the proviso. 22. Learned counsel for the appellants relied on a decision of the Madras High Court in The Corporation of Madras v. Messrs The Oriental Mercantile Company Ltd., Madras. ([1966] 2 M.L.J. 440, ) This authority, however, can have no application to the facts of the present case, because to begin with, there is nothing to show that the hoardings containing the advertisements were in any way fronting or facing the street. On the other hand, the advertisements were merely on the outside wall within the railway compound. In these circumstances, therefore, this case does not appear to be of any assistance to the appellant.Reliance was then placed on a decision of the Queens Bench Division in Ware Urban District Council v. Gaunt and Others([1969] 3 All E.R. 778, 787.) and particularly on the observations of Ashworth, J., where the Judge observed as follows:"The remaining issue is, in a sense, the most troublesome of all, namely, whether it is open to the appellants to apportion part of the expense on premises situate on the westerly side of Walton Road but separated from it by the public footpath. This issue involves as an ancillary problem the question whether part of the expense should in any event be apportioned on the public footpath. Section 6 of the Act of 1892 provides, inter alia, that ".:..the expenses incurred by the urban authority in executing private street works shall be apportioned (subject as in this Act mentioned) on the premises fronting, adjoining, or abutting on such street or pan of a street." " The observations extracted above will show that there also. the Court was dealing not with a tax on advertisements but a tax on premises, and the question of the frontage was interpreted having regard to the place where the premises were situate. In the same judgment, the learned Judge observed as follows:"In each case, as it seems to me, regard must be paid to the context in which the words appear and, quite apart front any decided cases, I am inclined to think that the context in the present case points to an enlarged rather than a restricted meaning of the word "adjoin"." (Emphasis ours) 23. It is, therefore, clear that the meaning of the words used in a particular statute has to be construed with reference to the context and not in isolation, not is it possible to lay down any rule of universal application in a matter like this. For these reasons, therefore, this authority also does not appear to be apposite so far as the present case is concerned.The Single Judge of the High Court, while interpreting the proviso, observed as follows:"These advertisements in question are displayed on the hoardings standing close to the cement fencing at the outer mark of the railway property. The cement railings are hardly about 3 feet in height and the advertisement boards are very much above the railings. The Public street to which the advertisements are facing runs along the cement railings, with no other obstacle between the advertisement boards and the public view. Therefore, it can reasonably, be said that they are fronting the Public Street." 24. We find ourselves in complete agreement with the view taken by the Single Judge. 25. The Division Bench of the High Court, however, while upholding the judgment of the Single Judge, observed as follows:"In the instant case, we are not faced with any situation as the one envisaged in the second part of the exemption clause relative to advertisement on a wall or other property of the railway frontage by street. We are concerned herein with the case of a hoarding put up by and belonging to the appellant and not t he railway. Hence, it is plain that no exemption on that score could be claimed on behalf of the appellant." 26. The High Court does not appear to have interpreted the proviso correctly. Th e view of the High Court that the proviso would only apply to advertisements of such hoardings whose ownership lies with the Railway or which belong to the Railway is not borne out by cl. (e) of the third proviso to s. 236. In other words the question of exigibility to tax is relatable not to the ownership of the hoarding but its situs. Even if the hoarding does not belong to the Railway but to some private party, if it does not front the street and is situated within the Railway premises or within the compound of the railway premises it is clearly exempt. We, therefore, do not approve of the line of reasoning adopted by the Division Bench.On a close and careful interpretation, therefore, of cl. (e) of the third proviso to s. 136 of the Act we are clearly of the opinion that on the facts proved in the present case as the hoardings, containing the advertisements were fronting the public street and were clearly exposed to public view and the members of the public passing through the street, they are not covered by the exemption contemplated by the proviso and are, therefore, exigible to tax. The demand notice, therefore, served on the appellant by the Municipal Corporation for payment of tax is not legally erroneous. 27. | 0[ds]The sine qua non for the application of this section is, therefore, that the advertisements displayed by any person must be to public view in any manner whatsoever. Once these conditions are satisfied, the person who exhibits the advertisements is liable to pay tax on such advertisements As, however, the Act was merely to regulate the premises falling within the Bangalore Municipal Corporation, it is obvious that the premises which did not fall within the Corporation or which belonged to other autonomous authorities could not be exigible to tax unless expressly so provided. Furthermore, it appears that the object of the Municipal Corporation in charging tax was to keep the public premises clean and water-tight and protect advertisements which may amount to nuisance, because the , Act lays down a procedure which has to be followed before the advertisements could be exhibited. Consistent with this object, there- fore, the third proviso to s. 136 of the Act grants an exemption from tax on any advertisement which is exhibited in any railway station or upon any wail or other property of a railway. Here also an exception is carved out which is that if such an advertisement, even though on any portion of the railway property, faces an y street it will not earn the exemptionWe have given anxious consideration to the arguments advanced by the learned counsel for the appellant, but on a proper interpretation of the proviso we are unable to accept the same. To. begin with, if the proviso is read with reference to the context, then it is absolutely clear that the verb "fronting" qualifies not t he wall or the property but the advertisement. The central subject-matter of s. 136 as also of the proviso is not a place or building but advertisement which alone attracted taxThe test, therefore, laid down by this proviso is that the Court has to see whether the advertisement affixed whether inside the compound of the railway or not fronts the street. If the advertisement fronts the street or faces the street even if it is within t he railway premises, it will be exigible to tax. For instance if the; hoardings containing the advertisements were affixed just behind the compound wall and the advertisements did not face the street at all but faced the other side of the railway station their back being to the street, then the advertisements will certainly be exempt from tax and the proviso would clearly apply. This seems to us to be the natural interpretation of the proviso having regard to the context in which it is placedAccording to the aforesaid dictionary meaning "fronting" merely means that the article should face or have its front toward, opposite or over against the house or the street. In our opinion the word "fronting" has been used in the proviso not in any leg al or technical sense but as used in ordinary parlance. It is not a term of art but one that signifies its meaning according to common notions. For these reasons, therefore, we are clearly of the opinion that as the advertisements upon the hoardings in the instant case were undoubtedly facing or fronting the street they were exigible to tax and the fact that they were a f[axed on the earth which formed the compound of the railway premises would make no difference in view of the plain and unambiguous language of the provisoIt is, therefore, clear that the meaning of the words used in a particular statute has to be construed with reference to the context and not in isolation, not is it possible to lay down any rule of universal application in a matter like this. For these reasons, therefore, this authority also does not appear to be apposite so far as the present case is concernedWe find ourselves in complete agreement with the view taken by the Single JudgeThe High Court does not appear to have interpreted the proviso correctly. Th e view of the High Court that the proviso would only apply to advertisements of such hoardings whose ownership lies with the Railway or which belong to the Railway is not borne out by cl. (e) of the third proviso to s. 236. In other words the question of exigibility to tax is relatable not to the ownership of the hoarding but its situs. Even if the hoarding does not belong to the Railway but to some private party, if it does not front the street and is situated within the Railway premises or within the compound of the railway premises it is clearly exempt. We, therefore, do not approve of the line of reasoning adopted by the Division Bench.On a close and careful interpretation, therefore, of cl. (e) of the third proviso to s. 136 of the Act we are clearly of the opinion that on the facts proved in the present case as the hoardings, containing the advertisements were fronting the public street and were clearly exposed to public view and the members of the public passing through the street, they are not covered by the exemption contemplated by the proviso and are, therefore, exigible to tax. The demand notice, therefore, served on the appellant by the Municipal Corporation for payment of tax is not legally erroneousFrom the photographs produced before us, as also before the High Court, it appears that the hoardings containing the advertisements are no doubt fixed just 2 or 3 feet behind the compound fencing of the railway station premisesThis authority, however, can have no application to the facts of the present case, because to begin with, there is nothing to show that the hoardings containing the advertisements were in any way fronting or facing the street. On the other hand, the advertisements were merely on the outside wall within the railway compound. In these circumstances, therefore, this case does not appear to be of any assistance to the appellant. | 0 | 3,424 | 1,074 | ### Instruction:
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that the article should face or have its front toward, opposite or over against the house or the street. In our opinion the word "fronting" has been used in the proviso not in any leg al or technical sense but as used in ordinary parlance. It is not a term of art but one that signifies its meaning according to common notions. For these reasons, therefore, we are clearly of the opinion that as the advertisements upon the hoardings in the instant case were undoubtedly facing or fronting the street they were exigible to tax and the fact that they were a f[axed on the earth which formed the compound of the railway premises would make no difference in view of the plain and unambiguous language of the proviso. 22. Learned counsel for the appellants relied on a decision of the Madras High Court in The Corporation of Madras v. Messrs The Oriental Mercantile Company Ltd., Madras. ([1966] 2 M.L.J. 440, ) This authority, however, can have no application to the facts of the present case, because to begin with, there is nothing to show that the hoardings containing the advertisements were in any way fronting or facing the street. On the other hand, the advertisements were merely on the outside wall within the railway compound. In these circumstances, therefore, this case does not appear to be of any assistance to the appellant.Reliance was then placed on a decision of the Queens Bench Division in Ware Urban District Council v. Gaunt and Others([1969] 3 All E.R. 778, 787.) and particularly on the observations of Ashworth, J., where the Judge observed as follows:"The remaining issue is, in a sense, the most troublesome of all, namely, whether it is open to the appellants to apportion part of the expense on premises situate on the westerly side of Walton Road but separated from it by the public footpath. This issue involves as an ancillary problem the question whether part of the expense should in any event be apportioned on the public footpath. Section 6 of the Act of 1892 provides, inter alia, that ".:..the expenses incurred by the urban authority in executing private street works shall be apportioned (subject as in this Act mentioned) on the premises fronting, adjoining, or abutting on such street or pan of a street." " The observations extracted above will show that there also. the Court was dealing not with a tax on advertisements but a tax on premises, and the question of the frontage was interpreted having regard to the place where the premises were situate. In the same judgment, the learned Judge observed as follows:"In each case, as it seems to me, regard must be paid to the context in which the words appear and, quite apart front any decided cases, I am inclined to think that the context in the present case points to an enlarged rather than a restricted meaning of the word "adjoin"." (Emphasis ours) 23. It is, therefore, clear that the meaning of the words used in a particular statute has to be construed with reference to the context and not in isolation, not is it possible to lay down any rule of universal application in a matter like this. For these reasons, therefore, this authority also does not appear to be apposite so far as the present case is concerned.The Single Judge of the High Court, while interpreting the proviso, observed as follows:"These advertisements in question are displayed on the hoardings standing close to the cement fencing at the outer mark of the railway property. The cement railings are hardly about 3 feet in height and the advertisement boards are very much above the railings. The Public street to which the advertisements are facing runs along the cement railings, with no other obstacle between the advertisement boards and the public view. Therefore, it can reasonably, be said that they are fronting the Public Street." 24. We find ourselves in complete agreement with the view taken by the Single Judge. 25. The Division Bench of the High Court, however, while upholding the judgment of the Single Judge, observed as follows:"In the instant case, we are not faced with any situation as the one envisaged in the second part of the exemption clause relative to advertisement on a wall or other property of the railway frontage by street. We are concerned herein with the case of a hoarding put up by and belonging to the appellant and not t he railway. Hence, it is plain that no exemption on that score could be claimed on behalf of the appellant." 26. The High Court does not appear to have interpreted the proviso correctly. Th e view of the High Court that the proviso would only apply to advertisements of such hoardings whose ownership lies with the Railway or which belong to the Railway is not borne out by cl. (e) of the third proviso to s. 236. In other words the question of exigibility to tax is relatable not to the ownership of the hoarding but its situs. Even if the hoarding does not belong to the Railway but to some private party, if it does not front the street and is situated within the Railway premises or within the compound of the railway premises it is clearly exempt. We, therefore, do not approve of the line of reasoning adopted by the Division Bench.On a close and careful interpretation, therefore, of cl. (e) of the third proviso to s. 136 of the Act we are clearly of the opinion that on the facts proved in the present case as the hoardings, containing the advertisements were fronting the public street and were clearly exposed to public view and the members of the public passing through the street, they are not covered by the exemption contemplated by the proviso and are, therefore, exigible to tax. The demand notice, therefore, served on the appellant by the Municipal Corporation for payment of tax is not legally erroneous. 27.
### Response:
0
### Explanation:
The sine qua non for the application of this section is, therefore, that the advertisements displayed by any person must be to public view in any manner whatsoever. Once these conditions are satisfied, the person who exhibits the advertisements is liable to pay tax on such advertisements As, however, the Act was merely to regulate the premises falling within the Bangalore Municipal Corporation, it is obvious that the premises which did not fall within the Corporation or which belonged to other autonomous authorities could not be exigible to tax unless expressly so provided. Furthermore, it appears that the object of the Municipal Corporation in charging tax was to keep the public premises clean and water-tight and protect advertisements which may amount to nuisance, because the , Act lays down a procedure which has to be followed before the advertisements could be exhibited. Consistent with this object, there- fore, the third proviso to s. 136 of the Act grants an exemption from tax on any advertisement which is exhibited in any railway station or upon any wail or other property of a railway. Here also an exception is carved out which is that if such an advertisement, even though on any portion of the railway property, faces an y street it will not earn the exemptionWe have given anxious consideration to the arguments advanced by the learned counsel for the appellant, but on a proper interpretation of the proviso we are unable to accept the same. To. begin with, if the proviso is read with reference to the context, then it is absolutely clear that the verb "fronting" qualifies not t he wall or the property but the advertisement. The central subject-matter of s. 136 as also of the proviso is not a place or building but advertisement which alone attracted taxThe test, therefore, laid down by this proviso is that the Court has to see whether the advertisement affixed whether inside the compound of the railway or not fronts the street. If the advertisement fronts the street or faces the street even if it is within t he railway premises, it will be exigible to tax. For instance if the; hoardings containing the advertisements were affixed just behind the compound wall and the advertisements did not face the street at all but faced the other side of the railway station their back being to the street, then the advertisements will certainly be exempt from tax and the proviso would clearly apply. This seems to us to be the natural interpretation of the proviso having regard to the context in which it is placedAccording to the aforesaid dictionary meaning "fronting" merely means that the article should face or have its front toward, opposite or over against the house or the street. In our opinion the word "fronting" has been used in the proviso not in any leg al or technical sense but as used in ordinary parlance. It is not a term of art but one that signifies its meaning according to common notions. For these reasons, therefore, we are clearly of the opinion that as the advertisements upon the hoardings in the instant case were undoubtedly facing or fronting the street they were exigible to tax and the fact that they were a f[axed on the earth which formed the compound of the railway premises would make no difference in view of the plain and unambiguous language of the provisoIt is, therefore, clear that the meaning of the words used in a particular statute has to be construed with reference to the context and not in isolation, not is it possible to lay down any rule of universal application in a matter like this. For these reasons, therefore, this authority also does not appear to be apposite so far as the present case is concernedWe find ourselves in complete agreement with the view taken by the Single JudgeThe High Court does not appear to have interpreted the proviso correctly. Th e view of the High Court that the proviso would only apply to advertisements of such hoardings whose ownership lies with the Railway or which belong to the Railway is not borne out by cl. (e) of the third proviso to s. 236. In other words the question of exigibility to tax is relatable not to the ownership of the hoarding but its situs. Even if the hoarding does not belong to the Railway but to some private party, if it does not front the street and is situated within the Railway premises or within the compound of the railway premises it is clearly exempt. We, therefore, do not approve of the line of reasoning adopted by the Division Bench.On a close and careful interpretation, therefore, of cl. (e) of the third proviso to s. 136 of the Act we are clearly of the opinion that on the facts proved in the present case as the hoardings, containing the advertisements were fronting the public street and were clearly exposed to public view and the members of the public passing through the street, they are not covered by the exemption contemplated by the proviso and are, therefore, exigible to tax. The demand notice, therefore, served on the appellant by the Municipal Corporation for payment of tax is not legally erroneousFrom the photographs produced before us, as also before the High Court, it appears that the hoardings containing the advertisements are no doubt fixed just 2 or 3 feet behind the compound fencing of the railway station premisesThis authority, however, can have no application to the facts of the present case, because to begin with, there is nothing to show that the hoardings containing the advertisements were in any way fronting or facing the street. On the other hand, the advertisements were merely on the outside wall within the railway compound. In these circumstances, therefore, this case does not appear to be of any assistance to the appellant.
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Bombay Oxygen Corporation Vs. Girish Nagesh Suvarna and Another | These two appeals arise out of the proceedings initiated before the Labour Court in two references. The case putforth by the respondents-workmen is that they were working as Courier servicemen since 1984 and their last drawn salary was Rs.600/- per month. Each of them claimed to have worked for four years without break since 1983/1984. The contention putforth on behalf of the appellants is that they were engaged on contract basis and they were not workmen. The Labour Court as well as the High Court on consideration of the evidence adduced before it came to the conclusion as follows: "The witness has admitted that at the time of appointment of these two workmen, the company had not required them to submit any rates for carrying out the courier service. No contract was entered into with these two workmen. The workmen were not submitting any bills for the work done. he has also admitted that the company was paying travelling expenses to these two workmen. On the basis of these materials, the learned Judge of the Labour Court had come to the conclusion that both these individuals are workman and there is a relationship of an employer and employee between the company and these workmen and, therefore, it is an industrial dispute. The Labour Court has come to the conclusion that both the workmen were doing the work of courier service as per the directions of the company in a specified manner. The work was clearly connected with the officers of the company and the services of the two workmen were terminated on 26.11.1989 without assigning any reasons." * | 1[ds]The contention putforth on behalf of the appellants is that they were engaged on contract basis and they were not workmen. The Labour Court as well as the High Court on consideration of the evidence adduced before it came to the conclusion aswitness has admitted that at the time of appointment of these two workmen, the company had not required them to submit any rates for carrying out the courier service. No contract was entered into with these two workmen. The workmen were not submitting any bills for the work done. he has also admitted that the company was paying travelling expenses to these two workmen. On the basis of these materials, the learned Judge of the Labour Court had come to the conclusion that both these individuals are workman and there is a relationship of an employer and employee between the company and these workmen and, therefore, it is an industrial dispute. The Labour Court has come to the conclusion that both the workmen were doing the work of courier service as per the directions of the company in a specified manner. The work was clearly connected with the officers of the company and the services of the two workmen were terminated on 26.11.1989 without assigning any reasons." * | 1 | 286 | 227 | ### 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:
These two appeals arise out of the proceedings initiated before the Labour Court in two references. The case putforth by the respondents-workmen is that they were working as Courier servicemen since 1984 and their last drawn salary was Rs.600/- per month. Each of them claimed to have worked for four years without break since 1983/1984. The contention putforth on behalf of the appellants is that they were engaged on contract basis and they were not workmen. The Labour Court as well as the High Court on consideration of the evidence adduced before it came to the conclusion as follows: "The witness has admitted that at the time of appointment of these two workmen, the company had not required them to submit any rates for carrying out the courier service. No contract was entered into with these two workmen. The workmen were not submitting any bills for the work done. he has also admitted that the company was paying travelling expenses to these two workmen. On the basis of these materials, the learned Judge of the Labour Court had come to the conclusion that both these individuals are workman and there is a relationship of an employer and employee between the company and these workmen and, therefore, it is an industrial dispute. The Labour Court has come to the conclusion that both the workmen were doing the work of courier service as per the directions of the company in a specified manner. The work was clearly connected with the officers of the company and the services of the two workmen were terminated on 26.11.1989 without assigning any reasons." *
### Response:
1
### Explanation:
The contention putforth on behalf of the appellants is that they were engaged on contract basis and they were not workmen. The Labour Court as well as the High Court on consideration of the evidence adduced before it came to the conclusion aswitness has admitted that at the time of appointment of these two workmen, the company had not required them to submit any rates for carrying out the courier service. No contract was entered into with these two workmen. The workmen were not submitting any bills for the work done. he has also admitted that the company was paying travelling expenses to these two workmen. On the basis of these materials, the learned Judge of the Labour Court had come to the conclusion that both these individuals are workman and there is a relationship of an employer and employee between the company and these workmen and, therefore, it is an industrial dispute. The Labour Court has come to the conclusion that both the workmen were doing the work of courier service as per the directions of the company in a specified manner. The work was clearly connected with the officers of the company and the services of the two workmen were terminated on 26.11.1989 without assigning any reasons." *
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Bhagwan Vishwanath Phadnis and Others Vs. Bhasker Digamber Choudhary | CHANDRACHUD, J.1. The appellants are owners of a house situated at 1204/23, Shivaji Nagar, Poona. They filed a suit against the respondent for possession of a block of three rooms and a verandah let out to him as a monthly tenant. After considering the requirements of the appellants and on consideration of the question of comparative hardship to the parties, the trial Court passed a decree for possession in favour of the appellants. That decree was confirmed in appeal by the learned Joint Judge, Poona, whereupon the respondent filed a petition in the High Court under Article 227 of the Constitution. By a judgment dated February 12, 1976 the High Court allowed the petition, set aside the judgment of the Joint Judge and remanded the appeal to him for a decision in the light of the observations contained in its judgment. This appeal by special leave is directed against the judgment of the High Court.2. Section 13(1)(g) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 provides, in so far as is material, that a landlord shall be entitled to recover possession of any premises from his tenant, if they are reasonably and bona fide required by him for his own occupation or for the occupation of any person for whose benefit the premises are held. But, by sub-section (2) of Section 13, a decree for eviction cannot be passed on this ground if the Court is satisfied that greater hardship would be caused by passing the decree than by refusing to pass it. The question of comparative hardship arising under sub-section (2) was considered both by the trial Court and the First Appellate Court, which took the view that not only did the appellants require the suit premises for their personal use and occupation but that greater hardship would be caused to them if a decree for possession were not passed in their favour. The learned Joint Judge disposed of the question of hardship by observing that the second appellant for whose personal use the premises were required and the respondent were "placed in almost identical circumstances", meaning thereby that the issue of hardship was evenly balanced; but he concluded that the fact that the second appellant was one of the owners "tilts the balance" in favour of the appellants.3. We are unable to appreciate, after considering everything that the learned Judge of the High Court has said in his elaborate judgment, that it was necessary to set aside the entire judgment of the Joint Judge and reopen the appeal before him. The two Courts of fact had concurrently recorded the finding that the landlords require the suit premises for the personal use and occupation of one of them and that the balance of convenience was in their favour. It must be mentioned that the learned Joint Judge did not deal with the question of hardship by merely resorting to the tilting of the scales, though even that course may in conceivable cases be permissible. He examined the evidence carefully and held in favour of the landlords because the respondent had retired from the Government service on a salary of Rs. 1800 p.m., that he drew a pension of over Rs. 500 that his daughters were married, his elder son had set up medical practice at Jalgaon, the younger one was taking education at Pawai, that no reliable evidence was produced to bear out the respondents assertion that it was necessary for him to live in Poona as the climate there suited his wifes ailment of rheumatism and that with the means at his disposal, the respondent could find alternate accommodation in Poona.4. If the High Court felt that there was any particularly issue which ought to have been considered by the Joint Judge but was not considered by him, a finding could have been called for on that question or the order of remand could have been limited to that question. That is what we propose to do, for the reasons which we will immediately proceed to mention.5. While the appeal against the judgment of the trial Court was pending before the learned Joint Judge, the respondent filed an application on September 6, 1975 agreeing to hand over possession of one of the three rooms in his occupation to the appellants. The appellants being already in possession of a hall on the first floor of the building for their common use, the respondents offer was calculated to show that if the landlords were given possession of one more room the need of the second appellant, in regard to which the suit was filed, would be satisfied. Unfortunately, the Joint Judge overlooked that application and did not pass any orders thereon. What we now propose to do is to direct him to consider the application and determine (i) whether the suit premises can be conveniently split up, and (ii) whether the offer made by the respondent can adequately meet the needs of the second appellant. If the premises cannot be conveniently split up, no further question will arise and the suit must succeed. It is only if they can be so split up that the second question shall have to be decided. | 1[ds]3. We are unable to appreciate, after considering everything that the learned Judge of the High Court has said in his elaborate judgment, that it was necessary to set aside the entire judgment of the Joint Judge and reopen the appeal before him. The two Courts of fact had concurrently recorded the finding that the landlords require the suit premises for the personal use and occupation of one of them and that the balance of convenience was in their favour. It must be mentioned that the learned Joint Judge did not deal with the question of hardship by merely resorting to the tilting of the scales, though even that course may in conceivable cases be permissible. He examined the evidence carefully and held in favour of the landlords because the respondent had retired from the Government service on a salary of Rs. 1800 p.m., that he drew a pension of over Rs. 500 that his daughters were married, his elder son had set up medical practice at Jalgaon, the younger one was taking education at Pawai, that no reliable evidence was produced to bear out the respondents assertion that it was necessary for him to live in Poona as the climate there suited his wifes ailment of rheumatism and that with the means at his disposal, the respondent could find alternate accommodation in Poona.While the appeal against the judgment of the trial Court was pending before the learned Joint Judge, the respondent filed an application on September 6, 1975 agreeing to hand over possession of one of the three rooms in his occupation to the appellants. The appellants being already in possession of a hall on the first floor of the building for their common use, the respondents offer was calculated to show that if the landlords were given possession of one more room the need of the second appellant, in regard to which the suit was filed, would be satisfied. Unfortunately, the Joint Judge overlooked that application and did not pass any orders thereon. What we now propose to do is to direct him to consider the application and determine (i) whether the suit premises can be conveniently split up, and (ii) whether the offer made by the respondent can adequately meet the needs of the second appellant. If the premises cannot be conveniently split up, no further question will arise and the suit must succeed. It is only if they can be so split up that the second question shall have to be decided. | 1 | 947 | 453 | ### 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:
CHANDRACHUD, J.1. The appellants are owners of a house situated at 1204/23, Shivaji Nagar, Poona. They filed a suit against the respondent for possession of a block of three rooms and a verandah let out to him as a monthly tenant. After considering the requirements of the appellants and on consideration of the question of comparative hardship to the parties, the trial Court passed a decree for possession in favour of the appellants. That decree was confirmed in appeal by the learned Joint Judge, Poona, whereupon the respondent filed a petition in the High Court under Article 227 of the Constitution. By a judgment dated February 12, 1976 the High Court allowed the petition, set aside the judgment of the Joint Judge and remanded the appeal to him for a decision in the light of the observations contained in its judgment. This appeal by special leave is directed against the judgment of the High Court.2. Section 13(1)(g) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 provides, in so far as is material, that a landlord shall be entitled to recover possession of any premises from his tenant, if they are reasonably and bona fide required by him for his own occupation or for the occupation of any person for whose benefit the premises are held. But, by sub-section (2) of Section 13, a decree for eviction cannot be passed on this ground if the Court is satisfied that greater hardship would be caused by passing the decree than by refusing to pass it. The question of comparative hardship arising under sub-section (2) was considered both by the trial Court and the First Appellate Court, which took the view that not only did the appellants require the suit premises for their personal use and occupation but that greater hardship would be caused to them if a decree for possession were not passed in their favour. The learned Joint Judge disposed of the question of hardship by observing that the second appellant for whose personal use the premises were required and the respondent were "placed in almost identical circumstances", meaning thereby that the issue of hardship was evenly balanced; but he concluded that the fact that the second appellant was one of the owners "tilts the balance" in favour of the appellants.3. We are unable to appreciate, after considering everything that the learned Judge of the High Court has said in his elaborate judgment, that it was necessary to set aside the entire judgment of the Joint Judge and reopen the appeal before him. The two Courts of fact had concurrently recorded the finding that the landlords require the suit premises for the personal use and occupation of one of them and that the balance of convenience was in their favour. It must be mentioned that the learned Joint Judge did not deal with the question of hardship by merely resorting to the tilting of the scales, though even that course may in conceivable cases be permissible. He examined the evidence carefully and held in favour of the landlords because the respondent had retired from the Government service on a salary of Rs. 1800 p.m., that he drew a pension of over Rs. 500 that his daughters were married, his elder son had set up medical practice at Jalgaon, the younger one was taking education at Pawai, that no reliable evidence was produced to bear out the respondents assertion that it was necessary for him to live in Poona as the climate there suited his wifes ailment of rheumatism and that with the means at his disposal, the respondent could find alternate accommodation in Poona.4. If the High Court felt that there was any particularly issue which ought to have been considered by the Joint Judge but was not considered by him, a finding could have been called for on that question or the order of remand could have been limited to that question. That is what we propose to do, for the reasons which we will immediately proceed to mention.5. While the appeal against the judgment of the trial Court was pending before the learned Joint Judge, the respondent filed an application on September 6, 1975 agreeing to hand over possession of one of the three rooms in his occupation to the appellants. The appellants being already in possession of a hall on the first floor of the building for their common use, the respondents offer was calculated to show that if the landlords were given possession of one more room the need of the second appellant, in regard to which the suit was filed, would be satisfied. Unfortunately, the Joint Judge overlooked that application and did not pass any orders thereon. What we now propose to do is to direct him to consider the application and determine (i) whether the suit premises can be conveniently split up, and (ii) whether the offer made by the respondent can adequately meet the needs of the second appellant. If the premises cannot be conveniently split up, no further question will arise and the suit must succeed. It is only if they can be so split up that the second question shall have to be decided.
### Response:
1
### Explanation:
3. We are unable to appreciate, after considering everything that the learned Judge of the High Court has said in his elaborate judgment, that it was necessary to set aside the entire judgment of the Joint Judge and reopen the appeal before him. The two Courts of fact had concurrently recorded the finding that the landlords require the suit premises for the personal use and occupation of one of them and that the balance of convenience was in their favour. It must be mentioned that the learned Joint Judge did not deal with the question of hardship by merely resorting to the tilting of the scales, though even that course may in conceivable cases be permissible. He examined the evidence carefully and held in favour of the landlords because the respondent had retired from the Government service on a salary of Rs. 1800 p.m., that he drew a pension of over Rs. 500 that his daughters were married, his elder son had set up medical practice at Jalgaon, the younger one was taking education at Pawai, that no reliable evidence was produced to bear out the respondents assertion that it was necessary for him to live in Poona as the climate there suited his wifes ailment of rheumatism and that with the means at his disposal, the respondent could find alternate accommodation in Poona.While the appeal against the judgment of the trial Court was pending before the learned Joint Judge, the respondent filed an application on September 6, 1975 agreeing to hand over possession of one of the three rooms in his occupation to the appellants. The appellants being already in possession of a hall on the first floor of the building for their common use, the respondents offer was calculated to show that if the landlords were given possession of one more room the need of the second appellant, in regard to which the suit was filed, would be satisfied. Unfortunately, the Joint Judge overlooked that application and did not pass any orders thereon. What we now propose to do is to direct him to consider the application and determine (i) whether the suit premises can be conveniently split up, and (ii) whether the offer made by the respondent can adequately meet the needs of the second appellant. If the premises cannot be conveniently split up, no further question will arise and the suit must succeed. It is only if they can be so split up that the second question shall have to be decided.
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M/S Best Sellers Retail(I)P.Ltd Vs. M/S Aditya Birla Nuvo Ltd | an order of injunction would not be passed as prayed for. Hence, we only have to consider whether these well-settled principles relating to grant of temporary injunction have been kept in mind by the trial court and the High Court. 13. On a reading of clause B-2 of the agreement, we find that Liberty Agencies had given a warranty that the suit schedule property was owned by it and that it will retain the possession of the suit schedule property until the expiry of the agreement. Clause D of the agreement clearly stipulated that the duration of the agreement shall be for a period of twelve years from the date of the agreement unless terminated in accordance with the provisions of the agreement. Clause E-2 further provides that respondent no.1 and not Liberty Agencies could terminate the agreement by giving a notice of not less than three months after the end of six years from the date of the agreement and respondent no.1 had not terminated the agreement under this clause. Before the expiry of six years from the date of the agreement, Liberty Agencies sent the letter dated 26.02.2010 to the respondent No.1 committing a breach of clause B-2 of the agreement which provided that Liberty Agencies will retain possession of the suit schedule property until the expiry of the agreement. This was the breach of the agreement which was sought to be prevented by the trial court by an order of temporary injunction. The trial court and the High Court were thus right in coming to the conclusion that the respondent no.1 had a prima facie case. 14. Yet, the settled principle of law is that even where prima facie case is in favour of the plaintiff, the Court will refuse temporary injunction if the injury suffered by the plaintiff on account of refusal of temporary injunction was not irreparable. In Dalpat Kumar & Anr. v. Prahlad Singh & Ors. [(1992) 1 SCC 719] this Court held: “Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in “irreparable injury” to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely, one that cannot be adequately compensated by way of damages.” 15. In the present case, the respondent no.1 itself had claimed in the plaint the alternative relief of damages to the tune of Rs.20,12,44,398/- if the relief for specific performance was to be refused by the Court and break-up of the damages of Rs.20,12,44,398/- claimed in the plaint was as follows: “I. Net Book stock amount on 28.02.2010 is Rs.1,15,97,638/-.II. Loan amount due as on 27.01.2010 is Rs.44,81,584/-.III. Amount due as per Statement of Accounts as on 28.02.2010 is Rs.20,65,176/-.IV. Projected Loss of profit on sales, for the balance 7 year term of the Agency Agreement amounts to a sum of Rs.10,31,00,000/-.V. Loss of Goodwill, Reputation including amount spent on advertisement Rs.2,00,00,000/-.VI. Loss of amount which Plaintiff would incur for relocating the store to other place in the Brigade Road, Bangalore and to continue its business for rest of the term 7 years would amount to Rs.6,00,00,000/- along with simple interest at the rate of 24% p.a. from the date of payment till realization as the same being a commercial transaction.” 16. Mr. Venugopal, learned counsel appearing for the respondent no.1, however, submitted that future profits and loss of goodwill of the respondent no.1 cannot be calculated in terms of the money, but the aforesaid statement of damages claimed by the respondent no.1 in the plaint would show that the respondent no.1 has itself calculated a projected loss of profit for the balance seven year term of the agreement as Rs.10,31,00,000/- and has also assessed loss of goodwill at Rs.2,00,00,000/- besides the loss of Rs.6,00,00,000/- in relocating the store to another place in Brigade Road, Bangalore. 17. Despite this claim towards damages made by the respondent no.1 in the plaint, the trial court has held that if the temporary injunction as sought for is not granted, Liberty Agencies may lease or sub-lease the suit schedule property or create third party interest over the same and in such an event, there will be multiplicity of proceedings and thereby the respondent no.1 will be put to hardship and mental agony, which cannot be compensated in terms of money. Respondent no.1 is a limited company carrying on the business of readymade garments and we fail to appreciate what mental agony and hardship it will suffer except financial losses. The High Court has similarly held in the impugned judgment that if the premises is let out, the respondent no.1 will be put to hardship and the relief claimed would be frustrated and, therefore, it is proper to grant injunction and the trial court has rightly granted injunction restraining the partners of Liberty Agencies from alienating, leasing, sub-leasing or encumbering the property till the disposal of the suit. The High Court lost sight of the fact that if the temporary injunction restraining Liberty Agencies and its partners from allowing, leasing, sub-leasing or encumbering the suit schedule property was not granted, and the respondent no.1 ultimately succeeded in the suit, it would be entitled to damages claimed and proved before the court. In other words, the respondent no.1 will not suffer irreparable injury. To quote the words of Alderson, B. in The Attorney-General vs. Hallett [153 ER 1316: (1857) 16 M. & W.569]: “I take the meaning of irreparable injury to be that which, if not prevented by injunction, cannot be afterwards compensated by any decree which the Court can pronounce in the result of the cause.” 18. For the aforesaid reasons, we | 1[ds]17. Despite this claim towards damages made by the respondent no.1 in the plaint, the trial court has held that if the temporary injunction as sought for is not granted, Liberty Agencies may lease or sub-lease the suit schedule property or create third party interest over the same and in such an event, there will be multiplicity of proceedings and thereby the respondent no.1 will be put to hardship and mental agony, which cannot be compensated in terms of money. Respondent no.1 is a limited company carrying on the business of readymade garments and we fail to appreciate what mental agony and hardship it will suffer except financial losses. The High Court has similarly held in the impugned judgment that if the premises is let out, the respondent no.1 will be put to hardship and the relief claimed would be frustrated and, therefore, it is proper to grant injunction and the trial court has rightly granted injunction restraining the partners of Liberty Agencies from alienating, leasing, sub-leasing or encumbering the property till the disposal of the suit. The High Court lost sight of the fact that if the temporary injunction restraining Liberty Agencies and its partners from allowing, leasing, sub-leasing or encumbering the suit schedule property was not granted, and the respondent no.1 ultimately succeeded in the suit, it would be entitled to damages claimed and proved before the court. In other words, the respondent no.1 will not suffer irreparable injury. To quote the words of Alderson, B. in The Attorney-General vs. Hallett [153 ER 1316: (1857) 16 M. &take the meaning of irreparable injury to be that which, if not prevented by injunction, cannot be afterwards compensated by any decree which the Court can pronounce in the result of the | 1 | 3,482 | 325 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
an order of injunction would not be passed as prayed for. Hence, we only have to consider whether these well-settled principles relating to grant of temporary injunction have been kept in mind by the trial court and the High Court. 13. On a reading of clause B-2 of the agreement, we find that Liberty Agencies had given a warranty that the suit schedule property was owned by it and that it will retain the possession of the suit schedule property until the expiry of the agreement. Clause D of the agreement clearly stipulated that the duration of the agreement shall be for a period of twelve years from the date of the agreement unless terminated in accordance with the provisions of the agreement. Clause E-2 further provides that respondent no.1 and not Liberty Agencies could terminate the agreement by giving a notice of not less than three months after the end of six years from the date of the agreement and respondent no.1 had not terminated the agreement under this clause. Before the expiry of six years from the date of the agreement, Liberty Agencies sent the letter dated 26.02.2010 to the respondent No.1 committing a breach of clause B-2 of the agreement which provided that Liberty Agencies will retain possession of the suit schedule property until the expiry of the agreement. This was the breach of the agreement which was sought to be prevented by the trial court by an order of temporary injunction. The trial court and the High Court were thus right in coming to the conclusion that the respondent no.1 had a prima facie case. 14. Yet, the settled principle of law is that even where prima facie case is in favour of the plaintiff, the Court will refuse temporary injunction if the injury suffered by the plaintiff on account of refusal of temporary injunction was not irreparable. In Dalpat Kumar & Anr. v. Prahlad Singh & Ors. [(1992) 1 SCC 719] this Court held: “Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in “irreparable injury” to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely, one that cannot be adequately compensated by way of damages.” 15. In the present case, the respondent no.1 itself had claimed in the plaint the alternative relief of damages to the tune of Rs.20,12,44,398/- if the relief for specific performance was to be refused by the Court and break-up of the damages of Rs.20,12,44,398/- claimed in the plaint was as follows: “I. Net Book stock amount on 28.02.2010 is Rs.1,15,97,638/-.II. Loan amount due as on 27.01.2010 is Rs.44,81,584/-.III. Amount due as per Statement of Accounts as on 28.02.2010 is Rs.20,65,176/-.IV. Projected Loss of profit on sales, for the balance 7 year term of the Agency Agreement amounts to a sum of Rs.10,31,00,000/-.V. Loss of Goodwill, Reputation including amount spent on advertisement Rs.2,00,00,000/-.VI. Loss of amount which Plaintiff would incur for relocating the store to other place in the Brigade Road, Bangalore and to continue its business for rest of the term 7 years would amount to Rs.6,00,00,000/- along with simple interest at the rate of 24% p.a. from the date of payment till realization as the same being a commercial transaction.” 16. Mr. Venugopal, learned counsel appearing for the respondent no.1, however, submitted that future profits and loss of goodwill of the respondent no.1 cannot be calculated in terms of the money, but the aforesaid statement of damages claimed by the respondent no.1 in the plaint would show that the respondent no.1 has itself calculated a projected loss of profit for the balance seven year term of the agreement as Rs.10,31,00,000/- and has also assessed loss of goodwill at Rs.2,00,00,000/- besides the loss of Rs.6,00,00,000/- in relocating the store to another place in Brigade Road, Bangalore. 17. Despite this claim towards damages made by the respondent no.1 in the plaint, the trial court has held that if the temporary injunction as sought for is not granted, Liberty Agencies may lease or sub-lease the suit schedule property or create third party interest over the same and in such an event, there will be multiplicity of proceedings and thereby the respondent no.1 will be put to hardship and mental agony, which cannot be compensated in terms of money. Respondent no.1 is a limited company carrying on the business of readymade garments and we fail to appreciate what mental agony and hardship it will suffer except financial losses. The High Court has similarly held in the impugned judgment that if the premises is let out, the respondent no.1 will be put to hardship and the relief claimed would be frustrated and, therefore, it is proper to grant injunction and the trial court has rightly granted injunction restraining the partners of Liberty Agencies from alienating, leasing, sub-leasing or encumbering the property till the disposal of the suit. The High Court lost sight of the fact that if the temporary injunction restraining Liberty Agencies and its partners from allowing, leasing, sub-leasing or encumbering the suit schedule property was not granted, and the respondent no.1 ultimately succeeded in the suit, it would be entitled to damages claimed and proved before the court. In other words, the respondent no.1 will not suffer irreparable injury. To quote the words of Alderson, B. in The Attorney-General vs. Hallett [153 ER 1316: (1857) 16 M. & W.569]: “I take the meaning of irreparable injury to be that which, if not prevented by injunction, cannot be afterwards compensated by any decree which the Court can pronounce in the result of the cause.” 18. For the aforesaid reasons, we
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17. Despite this claim towards damages made by the respondent no.1 in the plaint, the trial court has held that if the temporary injunction as sought for is not granted, Liberty Agencies may lease or sub-lease the suit schedule property or create third party interest over the same and in such an event, there will be multiplicity of proceedings and thereby the respondent no.1 will be put to hardship and mental agony, which cannot be compensated in terms of money. Respondent no.1 is a limited company carrying on the business of readymade garments and we fail to appreciate what mental agony and hardship it will suffer except financial losses. The High Court has similarly held in the impugned judgment that if the premises is let out, the respondent no.1 will be put to hardship and the relief claimed would be frustrated and, therefore, it is proper to grant injunction and the trial court has rightly granted injunction restraining the partners of Liberty Agencies from alienating, leasing, sub-leasing or encumbering the property till the disposal of the suit. The High Court lost sight of the fact that if the temporary injunction restraining Liberty Agencies and its partners from allowing, leasing, sub-leasing or encumbering the suit schedule property was not granted, and the respondent no.1 ultimately succeeded in the suit, it would be entitled to damages claimed and proved before the court. In other words, the respondent no.1 will not suffer irreparable injury. To quote the words of Alderson, B. in The Attorney-General vs. Hallett [153 ER 1316: (1857) 16 M. &take the meaning of irreparable injury to be that which, if not prevented by injunction, cannot be afterwards compensated by any decree which the Court can pronounce in the result of the
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Southern Gas Limited Vs. Visveswaraya Iron and Steel Limited | M. SRINIVASAN, J. Leave granted 2. This is an appeal against the judgment and order of the High Court of Karnataka at Bangalore passed in Miscellaneous First Appeal No. 478 of 1992 3. An agreement was entered into between the appellant and the respondent towards delivering, taking, upon etc., of oxygen on certain terms and conditions. Clause 7 of the agreements is the Force Majeure. This clause provides that to the extent and during the period either of the parties is prevented from delivering or taking oxygen or using it in accordance with the agreements due to the operation of one of more of the force majeure events such as but not limited to Acts of God, war, revolution floods, drought, earthquakes, strikes, lockouts, conflagration, epidemics riots, civil commotions etc., they shall be relieved of their respective obligations of delivering or taking and paying for such oxygen. The claim of the respondent was that during a certain period, it was unable to take oxygen as per the agreement because there were more than 70 per cent power cuts due to which it could not run its LD Plant which in turn depended upon the Electric Pig Iron Furnace, which was highly power-oriented. On this premise, a dispute arose and an Arbitrator was sought to be appointed. The appellant herein therefore moved the court under Section 20 of the Indian Arbitration Act, 1940 successfully. An Arbitrator was appointed. The respondent/company took the matter in appeal before the High Court who reversed the judgment of the trial court to some extent pertaining to some items in dispute 4. The orders of the High court have been challenged herein on the ground that whether or not it was a case of force majeure, was a preliminary question determinable by the Arbitrator. In other words, if the respondent could successfully plead and prove to the satisfaction of the Arbitrator that force majeure clause was attracted, it would preclude other disputes being raised and determined by the Arbitrator. In any event, the matter initially had to go to the Arbitrator to be stopped or continued after the decision on the question of the force majeure. We think the appellant is on sound ground in contending this way towards interpretation of the agreement contained in Clause (7) above referred to read with Clause (22) providing for arbitration. Even learned counsel for the respondent appreciated the logic of the argument and has in the manner submitted to it before us. Let the Arbitrator, first go into the question whether the dispute falls within the ambit of the arbitration agreement dependent on the determination whether the breach could invoke the force majeure clause or not, and if not then to proceed further within his domain to determine all question as raised by the parties | 1[ds]We think the appellant is on sound ground in contending this way towards interpretation of the agreement contained in Clause (7) above referred to read with Clause (22) providing for arbitration. Even learned counsel for the respondent appreciated the logic of the argument and has in the manner submitted to it before us. Let the Arbitrator, first go into the question whether the dispute falls within the ambit of the arbitration agreement dependent on the determination whether the breach could invoke the force majeure clause or not, and if not then to proceed further within his domain to determine all question as raised by the parties | 1 | 511 | 118 | ### 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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M. SRINIVASAN, J. Leave granted 2. This is an appeal against the judgment and order of the High Court of Karnataka at Bangalore passed in Miscellaneous First Appeal No. 478 of 1992 3. An agreement was entered into between the appellant and the respondent towards delivering, taking, upon etc., of oxygen on certain terms and conditions. Clause 7 of the agreements is the Force Majeure. This clause provides that to the extent and during the period either of the parties is prevented from delivering or taking oxygen or using it in accordance with the agreements due to the operation of one of more of the force majeure events such as but not limited to Acts of God, war, revolution floods, drought, earthquakes, strikes, lockouts, conflagration, epidemics riots, civil commotions etc., they shall be relieved of their respective obligations of delivering or taking and paying for such oxygen. The claim of the respondent was that during a certain period, it was unable to take oxygen as per the agreement because there were more than 70 per cent power cuts due to which it could not run its LD Plant which in turn depended upon the Electric Pig Iron Furnace, which was highly power-oriented. On this premise, a dispute arose and an Arbitrator was sought to be appointed. The appellant herein therefore moved the court under Section 20 of the Indian Arbitration Act, 1940 successfully. An Arbitrator was appointed. The respondent/company took the matter in appeal before the High Court who reversed the judgment of the trial court to some extent pertaining to some items in dispute 4. The orders of the High court have been challenged herein on the ground that whether or not it was a case of force majeure, was a preliminary question determinable by the Arbitrator. In other words, if the respondent could successfully plead and prove to the satisfaction of the Arbitrator that force majeure clause was attracted, it would preclude other disputes being raised and determined by the Arbitrator. In any event, the matter initially had to go to the Arbitrator to be stopped or continued after the decision on the question of the force majeure. We think the appellant is on sound ground in contending this way towards interpretation of the agreement contained in Clause (7) above referred to read with Clause (22) providing for arbitration. Even learned counsel for the respondent appreciated the logic of the argument and has in the manner submitted to it before us. Let the Arbitrator, first go into the question whether the dispute falls within the ambit of the arbitration agreement dependent on the determination whether the breach could invoke the force majeure clause or not, and if not then to proceed further within his domain to determine all question as raised by the parties
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We think the appellant is on sound ground in contending this way towards interpretation of the agreement contained in Clause (7) above referred to read with Clause (22) providing for arbitration. Even learned counsel for the respondent appreciated the logic of the argument and has in the manner submitted to it before us. Let the Arbitrator, first go into the question whether the dispute falls within the ambit of the arbitration agreement dependent on the determination whether the breach could invoke the force majeure clause or not, and if not then to proceed further within his domain to determine all question as raised by the parties
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Union of India (UOI) and Ors Vs. N.K. Srivasta and Ors | in the absence of the necessary nursery facilities required to handle a premature baby. We hold accordingly. 7. However, having allowed the revision that was filed by Sarvodaya Hospital against the finding of negligence, the NCDRC elaborated on the question as to whether Safdarjung Hospital had been correctly exonerated. Safdarjung Hospital was a party to the proceedings before the NCDRC and was heard in the revision that was filed by Sarvodaya Hospital. The NCDRC noted that though Safdarjung Hospital was exonerated by the District Forum and the SCDRC on the ground that the treatment had been rendered free of charge and the hospital was not amenable to the jurisdiction of the consumer fora under the Consumer Protection Act 1986, the SCDRC had, on merits, come to the conclusion that though it had the facility of a Nursery with a ventilator, it had not been made available to the child of the complainant. The baby was admitted to Ward No. 20, then to Ward No. 18 and eventually in the General ICU. This finding had attained finality. The NCDRC held that the finding of the SCDRC that Safdarjung Hospital was not amenable to the jurisdiction of the consumer fora was contrary to the decision of this Court in Indian Medical Association. The NCDRC held that though the complainant had not filed a revision against the order of the SCDRC specifically holding that Safdarjung Hospital was not amenable to the jurisdiction of the consumer fora, he was not precluded from challenging a finding which was adverse to him in the revision petition. On these facts, the NCDRC sustained the finding of medical negligence against Safdarjung Hospital and directed it to pay compensation quantified at Rs. 2 lakhs. 8. Mr. R S Suri, Additional Solicitor General, has appeared in support of the appeal filed by the Safdarjung Hospital. The submission is that no charges across the board are levied at Safdarjung Hospital and, hence, the finding that was arrived at by the NCDRC is unsustainable. Mr. Dinesh Kumar, learned Counsel has appeared on behalf of the original complainant and opposed the appeal. Sarvodaya Hospital has been represented by Mr. Shantanu Sagar, learned Counsel. 9. While evaluating the submission which has been urged by Mr. R S Suri, it is necessary, at the outset, to have regard to the principles which have been laid down in the judgment of this Court in Indian Medical Association. In the judgment of this Court, the provisions of Section 2(1) (o) of the Act fell for interpretation. Section 2(1)(o) provides as follows: service means service of any description which is made available to the potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, [housing construction], entertainment, amusement or the purveying of news or other information, but does not include rendering of any service free of charge or under a contract of personal service; 10. Interpreting the above provision, a three judge Bench of this Court held that it is only where a hospital provides medical services free of charge across the board to all patients that it would stand outside the purview of the Act. The Court held that a hospital which renders free services to a certain category of patients, while providing for services which are charged to the bulk of others would not lie outside the purview of the jurisdiction of the consumer fora. This principle is evident from the following extract from the decision of this Court: 43...The third category of doctors and hospitals do provide free service to some of the patients belonging to the poor class but the bulk of the service is rendered to the patients on payment basis. The expenses incurred for providing free service are met out of the income from the service rendered to the paying patients. The service rendered by such doctors and hospitals to paying patients undoubtedly fall within the ambit of Section 2(1) (o) of the Act. 11. From the record, we find that, in the present case, the only factual foundation that was led before the District Forum was the evidence of Dr K C Aggarwal who deposed that the patient in question had been treated free of charge. We have scrutinized the grounds of appeal in the Special Leave Petition. Not even a single ground has been raised by Safdarjung Hospital, challenging the factual basis of the finding that has been arrived at by the NCDRC on the issue of jurisdiction. Nor has any other factual material been placed on the record to enable the Court to decide on whether it satisfies the tests enunciated in Indian Medical Association. Hence, in the absence of a proper challenge before the District Forum, the SCDRC or the NCDRC and, as we have seen above, even before this Court, it would be inappropriate for this Court to render a conclusive opinion. We ought not to do so in the absence of a factual foundation in the pleadings and evidence. We are also mindful of the fact that the award in the present case is in a relatively small amount of Rs. 2 lakhs. 12. However, Mr. R S Suri submitted that it would be appropriate for this Court, having regard to the recurring nature of the issue, to leave the question of jurisdiction open to be decided in an appropriate case where a factual foundation can be laid by the Union of India and Safdarjung Hospital, both in the pleadings and evidence. We consider this to be appropriate so as to ensure that while we are affirming the judgment of the NCDRC in the present case on the ground that the quantum of the claim is small enough to not warrant the intervention of this Court, the decision of this Court (or of the NCDRC) is not regarded as a precedent for having decided a question of law in the generality of cases that may arise involving Safdarjung Hospital. | 0[ds]11. From the record, we find that, in the present case, the only factual foundation that was led before the District Forum was the evidence of Dr K C Aggarwal who deposed that the patient in question had been treated free of charge. We have scrutinized the grounds of appeal in the Special Leave Petition. Not even a single ground has been raised by Safdarjung Hospital, challenging the factual basis of the finding that has been arrived at by the NCDRC on the issue of jurisdiction. Nor has any other factual material been placed on the record to enable the Court to decide on whether it satisfies the tests enunciated in Indian Medical Association. Hence, in the absence of a proper challenge before the District Forum, the SCDRC or the NCDRC and, as we have seen above, even before this Court, it would be inappropriate for this Court to render a conclusive opinion. We ought not to do so in the absence of a factual foundation in the pleadings and evidence. We are also mindful of the fact that the award in the present case is in a relatively small amount of Rs. 2 lakhs.9. While evaluating the submission which has been urged by Mr. R S Suri, it is necessary, at the outset, to have regard to the principles which have been laid down in the judgment of this Court in Indian Medical Association.In the judgment of this Court, the provisions of Section 2(1) (o) of the Act fell for interpretation.10. Interpreting the above provision, a three judge Bench of this Court held that it is only where a hospital provides medical services free of charge across the board to all patients that it would stand outside the purview of the Act. The Court held that a hospital which renders free services to a certain category of patients, while providing for services which are charged to the bulk of others would not lie outside the purview of the jurisdiction of the consumer fora. This principle is evident from the following extract from the decision of this Court:43...The third category of doctors and hospitals do provide free service to some of the patients belonging to the poor class but the bulk of the service is rendered to the patients on payment basis. The expenses incurred for providing free service are met out of the income from the service rendered to the paying patients. The service rendered by such doctors and hospitals to paying patients undoubtedly fall within the ambit of Section 2(1) (o) of the Act.11. From the record, we find that, in the present case, the only factual foundation that was led before the District Forum was the evidence of Dr K C Aggarwal who deposed that the patient in question had been treated free of charge. We have scrutinized the grounds of appeal in the Special Leave Petition. Not even a single ground has been raised by Safdarjung Hospital, challenging the factual basis of the finding that has been arrived at by the NCDRC on the issue of jurisdiction. Nor has any other factual material been placed on the record to enable the Court to decide on whether it satisfies the tests enunciated in Indian Medical Association. Hence, in the absence of a proper challenge before the District Forum, the SCDRC or the NCDRC and, as we have seen above, even before this Court, it would be inappropriate for this Court to render a conclusive opinion. We ought not to do so in the absence of a factual foundation in the pleadings and evidence. We are also mindful of the fact that the award in the present case is in a relatively small amount of Rs. 2 lakhs.12. However, Mr. R S Suri submitted that it would be appropriate for this Court, having regard to the recurring nature of the issue, to leave the question of jurisdiction open to be decided in an appropriate case where a factual foundation can be laid by the Union of India and Safdarjung Hospital, both in the pleadings and evidence. We consider this to be appropriate so as to ensure that while we are affirming the judgment of the NCDRC in the present case on the ground that the quantum of the claim is small enough to not warrant the intervention of this Court, the decision of this Court (or of the NCDRC) is not regarded as a precedent for having decided a question of law in the generality of cases that may arise involving Safdarjung Hospital.13. Another aspect which requires mention is that the SCDRC had held that Safdarjung Hospital was not amenable to the jurisdiction created by the Act. This was not challenged by the complainant. Sarvodaya Hospital challenged the order of the SCDRC. The NCDRC reversed the finding on maintainability which was in favour of Safdarjung Hospital in a revision by Sarvodaya Hospital. It attempted to do complete justice, ignoring that it is not entrusted with the jurisdiction which is exclusively conferred on this Court Under Article 142.9. While evaluating the submission which has been urged by Mr. R S Suri, it is necessary, at the outset, to have regard to the principles which have been laid down in the judgment of this Court in Indian Medical Association.In the judgment of this Court, the provisions of Section 2(1) (o) of the Act fell for interpretation.10. Interpreting the above provision, a three judge Bench of this Court held that it is only where a hospital provides medical services free of charge across the board to all patients that it would stand outside the purview of the Act. The Court held that a hospital which renders free services to a certain category of patients, while providing for services which are charged to the bulk of others would not lie outside the purview of the jurisdiction of the consumer fora. This principle is evident from the following extract from the decision of this Court:43...The third category of doctors and hospitals do provide free service to some of the patients belonging to the poor class but the bulk of the service is rendered to the patients on payment basis. The expenses incurred for providing free service are met out of the income from the service rendered to the paying patients. The service rendered by such doctors and hospitals to paying patients undoubtedly fall within the ambit of Section 2(1) (o) of the Act.11. From the record, we find that, in the present case, the only factual foundation that was led before the District Forum was the evidence of Dr K C Aggarwal who deposed that the patient in question had been treated free of charge. We have scrutinized the grounds of appeal in the Special Leave Petition. Not even a single ground has been raised by Safdarjung Hospital, challenging the factual basis of the finding that has been arrived at by the NCDRC on the issue of jurisdiction. Nor has any other factual material been placed on the record to enable the Court to decide on whether it satisfies the tests enunciated in Indian Medical Association. Hence, in the absence of a proper challenge before the District Forum, the SCDRC or the NCDRC and, as we have seen above, even before this Court, it would be inappropriate for this Court to render a conclusive opinion. We ought not to do so in the absence of a factual foundation in the pleadings and evidence. We are also mindful of the fact that the award in the present case is in a relatively small amount of Rs. 2 lakhs.12. However, Mr. R S Suri submitted that it would be appropriate for this Court, having regard to the recurring nature of the issue, to leave the question of jurisdiction open to be decided in an appropriate case where a factual foundation can be laid by the Union of India and Safdarjung Hospital, both in the pleadings and evidence. We consider this to be appropriate so as to ensure that while we are affirming the judgment of the NCDRC in the present case on the ground that the quantum of the claim is small enough to not warrant the intervention of this Court, the decision of this Court (or of the NCDRC) is not regarded as a precedent for having decided a question of law in the generality of cases that may arise involving Safdarjung Hospital.13. Another aspect which requires mention is that the SCDRC had held that Safdarjung Hospital was not amenable to the jurisdiction created by the Act. This was not challenged by the complainant. Sarvodaya Hospital challenged the order of the SCDRC. The NCDRC reversed the finding on maintainability which was in favour of Safdarjung Hospital in a revision by Sarvodaya Hospital. It attempted to do complete justice, ignoring that it is not entrusted with the jurisdiction which is exclusively conferred on this Court Under Article 142 | 0 | 2,027 | 1,616 | ### 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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in the absence of the necessary nursery facilities required to handle a premature baby. We hold accordingly. 7. However, having allowed the revision that was filed by Sarvodaya Hospital against the finding of negligence, the NCDRC elaborated on the question as to whether Safdarjung Hospital had been correctly exonerated. Safdarjung Hospital was a party to the proceedings before the NCDRC and was heard in the revision that was filed by Sarvodaya Hospital. The NCDRC noted that though Safdarjung Hospital was exonerated by the District Forum and the SCDRC on the ground that the treatment had been rendered free of charge and the hospital was not amenable to the jurisdiction of the consumer fora under the Consumer Protection Act 1986, the SCDRC had, on merits, come to the conclusion that though it had the facility of a Nursery with a ventilator, it had not been made available to the child of the complainant. The baby was admitted to Ward No. 20, then to Ward No. 18 and eventually in the General ICU. This finding had attained finality. The NCDRC held that the finding of the SCDRC that Safdarjung Hospital was not amenable to the jurisdiction of the consumer fora was contrary to the decision of this Court in Indian Medical Association. The NCDRC held that though the complainant had not filed a revision against the order of the SCDRC specifically holding that Safdarjung Hospital was not amenable to the jurisdiction of the consumer fora, he was not precluded from challenging a finding which was adverse to him in the revision petition. On these facts, the NCDRC sustained the finding of medical negligence against Safdarjung Hospital and directed it to pay compensation quantified at Rs. 2 lakhs. 8. Mr. R S Suri, Additional Solicitor General, has appeared in support of the appeal filed by the Safdarjung Hospital. The submission is that no charges across the board are levied at Safdarjung Hospital and, hence, the finding that was arrived at by the NCDRC is unsustainable. Mr. Dinesh Kumar, learned Counsel has appeared on behalf of the original complainant and opposed the appeal. Sarvodaya Hospital has been represented by Mr. Shantanu Sagar, learned Counsel. 9. While evaluating the submission which has been urged by Mr. R S Suri, it is necessary, at the outset, to have regard to the principles which have been laid down in the judgment of this Court in Indian Medical Association. In the judgment of this Court, the provisions of Section 2(1) (o) of the Act fell for interpretation. Section 2(1)(o) provides as follows: service means service of any description which is made available to the potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, [housing construction], entertainment, amusement or the purveying of news or other information, but does not include rendering of any service free of charge or under a contract of personal service; 10. Interpreting the above provision, a three judge Bench of this Court held that it is only where a hospital provides medical services free of charge across the board to all patients that it would stand outside the purview of the Act. The Court held that a hospital which renders free services to a certain category of patients, while providing for services which are charged to the bulk of others would not lie outside the purview of the jurisdiction of the consumer fora. This principle is evident from the following extract from the decision of this Court: 43...The third category of doctors and hospitals do provide free service to some of the patients belonging to the poor class but the bulk of the service is rendered to the patients on payment basis. The expenses incurred for providing free service are met out of the income from the service rendered to the paying patients. The service rendered by such doctors and hospitals to paying patients undoubtedly fall within the ambit of Section 2(1) (o) of the Act. 11. From the record, we find that, in the present case, the only factual foundation that was led before the District Forum was the evidence of Dr K C Aggarwal who deposed that the patient in question had been treated free of charge. We have scrutinized the grounds of appeal in the Special Leave Petition. Not even a single ground has been raised by Safdarjung Hospital, challenging the factual basis of the finding that has been arrived at by the NCDRC on the issue of jurisdiction. Nor has any other factual material been placed on the record to enable the Court to decide on whether it satisfies the tests enunciated in Indian Medical Association. Hence, in the absence of a proper challenge before the District Forum, the SCDRC or the NCDRC and, as we have seen above, even before this Court, it would be inappropriate for this Court to render a conclusive opinion. We ought not to do so in the absence of a factual foundation in the pleadings and evidence. We are also mindful of the fact that the award in the present case is in a relatively small amount of Rs. 2 lakhs. 12. However, Mr. R S Suri submitted that it would be appropriate for this Court, having regard to the recurring nature of the issue, to leave the question of jurisdiction open to be decided in an appropriate case where a factual foundation can be laid by the Union of India and Safdarjung Hospital, both in the pleadings and evidence. We consider this to be appropriate so as to ensure that while we are affirming the judgment of the NCDRC in the present case on the ground that the quantum of the claim is small enough to not warrant the intervention of this Court, the decision of this Court (or of the NCDRC) is not regarded as a precedent for having decided a question of law in the generality of cases that may arise involving Safdarjung Hospital.
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0
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single ground has been raised by Safdarjung Hospital, challenging the factual basis of the finding that has been arrived at by the NCDRC on the issue of jurisdiction. Nor has any other factual material been placed on the record to enable the Court to decide on whether it satisfies the tests enunciated in Indian Medical Association. Hence, in the absence of a proper challenge before the District Forum, the SCDRC or the NCDRC and, as we have seen above, even before this Court, it would be inappropriate for this Court to render a conclusive opinion. We ought not to do so in the absence of a factual foundation in the pleadings and evidence. We are also mindful of the fact that the award in the present case is in a relatively small amount of Rs. 2 lakhs.12. However, Mr. R S Suri submitted that it would be appropriate for this Court, having regard to the recurring nature of the issue, to leave the question of jurisdiction open to be decided in an appropriate case where a factual foundation can be laid by the Union of India and Safdarjung Hospital, both in the pleadings and evidence. We consider this to be appropriate so as to ensure that while we are affirming the judgment of the NCDRC in the present case on the ground that the quantum of the claim is small enough to not warrant the intervention of this Court, the decision of this Court (or of the NCDRC) is not regarded as a precedent for having decided a question of law in the generality of cases that may arise involving Safdarjung Hospital.13. Another aspect which requires mention is that the SCDRC had held that Safdarjung Hospital was not amenable to the jurisdiction created by the Act. This was not challenged by the complainant. Sarvodaya Hospital challenged the order of the SCDRC. The NCDRC reversed the finding on maintainability which was in favour of Safdarjung Hospital in a revision by Sarvodaya Hospital. It attempted to do complete justice, ignoring that it is not entrusted with the jurisdiction which is exclusively conferred on this Court Under Article 142.9. While evaluating the submission which has been urged by Mr. R S Suri, it is necessary, at the outset, to have regard to the principles which have been laid down in the judgment of this Court in Indian Medical Association.In the judgment of this Court, the provisions of Section 2(1) (o) of the Act fell for interpretation.10. Interpreting the above provision, a three judge Bench of this Court held that it is only where a hospital provides medical services free of charge across the board to all patients that it would stand outside the purview of the Act. The Court held that a hospital which renders free services to a certain category of patients, while providing for services which are charged to the bulk of others would not lie outside the purview of the jurisdiction of the consumer fora. This principle is evident from the following extract from the decision of this Court:43...The third category of doctors and hospitals do provide free service to some of the patients belonging to the poor class but the bulk of the service is rendered to the patients on payment basis. The expenses incurred for providing free service are met out of the income from the service rendered to the paying patients. The service rendered by such doctors and hospitals to paying patients undoubtedly fall within the ambit of Section 2(1) (o) of the Act.11. From the record, we find that, in the present case, the only factual foundation that was led before the District Forum was the evidence of Dr K C Aggarwal who deposed that the patient in question had been treated free of charge. We have scrutinized the grounds of appeal in the Special Leave Petition. Not even a single ground has been raised by Safdarjung Hospital, challenging the factual basis of the finding that has been arrived at by the NCDRC on the issue of jurisdiction. Nor has any other factual material been placed on the record to enable the Court to decide on whether it satisfies the tests enunciated in Indian Medical Association. Hence, in the absence of a proper challenge before the District Forum, the SCDRC or the NCDRC and, as we have seen above, even before this Court, it would be inappropriate for this Court to render a conclusive opinion. We ought not to do so in the absence of a factual foundation in the pleadings and evidence. We are also mindful of the fact that the award in the present case is in a relatively small amount of Rs. 2 lakhs.12. However, Mr. R S Suri submitted that it would be appropriate for this Court, having regard to the recurring nature of the issue, to leave the question of jurisdiction open to be decided in an appropriate case where a factual foundation can be laid by the Union of India and Safdarjung Hospital, both in the pleadings and evidence. We consider this to be appropriate so as to ensure that while we are affirming the judgment of the NCDRC in the present case on the ground that the quantum of the claim is small enough to not warrant the intervention of this Court, the decision of this Court (or of the NCDRC) is not regarded as a precedent for having decided a question of law in the generality of cases that may arise involving Safdarjung Hospital.13. Another aspect which requires mention is that the SCDRC had held that Safdarjung Hospital was not amenable to the jurisdiction created by the Act. This was not challenged by the complainant. Sarvodaya Hospital challenged the order of the SCDRC. The NCDRC reversed the finding on maintainability which was in favour of Safdarjung Hospital in a revision by Sarvodaya Hospital. It attempted to do complete justice, ignoring that it is not entrusted with the jurisdiction which is exclusively conferred on this Court Under Article 142
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Bank of Maharashtra Vs. Race Shipping & Tpt. Co. Pvt. Ltd | urged that the dispute between the parties relates to the liability of the appellant-bank to reimburse respondent No.1 the sum of Rs.95,000/- debited to the account of respondent No.1 on the basis of cheque No.425395 dated August 26, 1992 that was encashed by the appellant-bank which is claimed to be forged in the sense that the signature of Ashok Chattopadhyay, the Managing Director of respondent No.1, on the said cheque is forged. The learned counsel has urged that the said liability is being fastened on the appellant-bank on the basis of the law governing banking operations and that the proper remedy for enforcing the said liability is to file a civil suit and that it is not a matter which can be agitated through a writ petition under Article 226 of the Constitution. It has also been urged that the matter involves adjudication of disputed questions of fact inasmuch as the appellant-bank disputes that signature of Ashok Chattopadhyay on the cheque is forged. The learned counsel for the appellant-bank has submitted that the learned Judges of the High Court were not right in proceeding on the basis that the appellant-bank did not take precautions before making payment of large amount and the fact that cheque was forged is not in dispute and that the affidavit filed by R.V. Pinglay appears to be prima facie false and an after-thought. It has been pointed out that in the correspondence with respondent No.1 the appellant-bank did not accept the contention of respondent No.1 that one of the signatures of the joint signatories, namely, Ashok Chattopadhyay, the Managing Director of respondent No.1, was forged and further that the case of the appellant-bank is that the payment of the cheque was made in the ordinary course of business and that the procedure for honouring the cheque by the bank officials was correctly followed in the matter of encashment of the cheque. The appellant-bank has also denied the allegations made by respondent No.1 that there was collusion of bank staff with an outside unknown person for payment of the cheque and it was asserted that it was obvious negligence on the part of respondent No.1 not to keep the Cheque Book in the proper custody and that the respondent No.1 was making false allegations against the appellant-bank. The submission of the learned counsel was that various questions that arise in the case can be properly determined only on the basis of evidence that is adduced and that such determination cannot be made in a writ petition and it can be more appropriately adjudicated in a regular civil proceeding. 9. Shri P.H. Parekh, the learned counsel appearing for the respondents, has, on the other hand, urged that this appeal is directed against the interim order only and the main Writ Petition is still pending adjudication before the High Court and the question of maintainability of the Writ Petition would be gone into by the HIgh Court in the light of the objections that are raised by the appellant-bank. Shri Parekh has, however, urged that in view of the fact that the signature of one of the joint signatories on the cheque is forged the appellant-bank is liable to reimburse respondent No.1 the sum of Rs. 95,000/- that has been paid from the account of respondent No.1 on the basis of said cheque which was a nullity. In support of his aforesaid submission Shri Parekh has placed reliance on the decisions of this Court in Bihta Co- operative Development Cane Marketing Union Ltd. & Anr. v. The Bank of Bihar & Ors., (1967) 1 SCR 848 and Canara Bank v. Canara Sales Corporation & Ors., 1987 (2) SCR 1138. 10. Since the Writ Petition is still pending in the High Court and the question of maintainability of the Writ Petition has yet to be considered we do not propose to go into the said question. All that we wish to say at this stage is that the objections that have been raised by the appellant-bank against the maintainability of the writ petition are not such that they may be disregarded as lacking in substance. This is a factor which has a bearing or the exercise of discretion by the Court while passing the interim order in the writ petition.11. By the interim order the High Court has directed the appellant-bank to credit a sum of Rs.95,000/- in the current account No. 318 of respondent No.1. The High Court has recorded that respondent through their counsel had given an undertaking to bring back the amount if the Court so desires. The said interim order, in substance, grants the relief which the respondent would have been given at the final stage in the event of their writ petition being allowed by the High Court.12. Time and again this Court has deprecated the practice of granting interim orders which practically give the principal relief sought in the petition for no better reason than that a prima facie case has been made out, without being concerned about the balance of convenience, the public interest and a host of other considerations. [See : Assistant Collector of Central Excise, West Bengal v. Dunlop India Ltd & Ors., 1985 (1) SCC 260 at p. 265; State of Rajasthan & Ors. v. M/s Swaika Properties & Anr., 1985 (3) SCC 217 at p. 224].13. In the instant case since there is serious dispute on facts it cannot even be said that a prima facie case had been made out for grant of an interim order in favour of the respondents which enables them to have the reimbursement of the sum of Rs.95,000/- that was debited to their account in view of the encashment of the cheque in question. We are of the view that this was not a case in which the High Court while admitting the Writ Petition should have passed an interim order giving such a direction. In the circumstances we are unable to uphold the said interim order passed by the High Court. | 1[ds]10. Since the Writ Petition is still pending in the High Court and the question of maintainability of the Writ Petition has yet to be considered we do not propose to go into the said question. All that we wish to say at this stage is that the objections that have been raised by theagainst the maintainability of the writ petition are not such that they may be disregarded as lacking in substance. This is a factor which has a bearing or the exercise of discretion by the Court while passing the interim order in the writ petition.11. By the interim order the High Court has directed theto credit a sum of Rs.95,000/in the current account No. 318 of respondent No.1. The High Court has recorded that respondent through their counsel had given an undertaking to bring back the amount if the Court so desires. The said interim order, in substance, grants the relief which the respondent would have been given at the final stage in the event of their writ petition being allowed by the High Court.12. Time and again this Court has deprecated the practice of granting interim orders which practically give the principal relief sought in the petition for no better reason than that a prima facie case has been made out, without being concerned about the balance of convenience, the public interest and a host of other considerations. [See : Assistant Collector of Central Excise, West Bengal v. Dunlop India LtdOrs., 1985 (1) SCC 260 at p. 265; State of RajasthanOrs. v. M/s Swaika PropertiesAnr., 1985 (3) SCC 217 at p. 224].13. In the instant case since there is serious dispute on facts it cannot even be said that a prima facie case had been made out for grant of an interim order in favour of the respondents which enables them to have the reimbursement of the sum of Rs.95,000/that was debited to their account in view of the encashment of the cheque in question. We are of the view that this was not a case in which the High Court while admitting the Writ Petition should have passed an interim order giving such a direction. In the circumstances we are unable to uphold the said interim order passed by the High Court. | 1 | 2,162 | 411 | ### 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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urged that the dispute between the parties relates to the liability of the appellant-bank to reimburse respondent No.1 the sum of Rs.95,000/- debited to the account of respondent No.1 on the basis of cheque No.425395 dated August 26, 1992 that was encashed by the appellant-bank which is claimed to be forged in the sense that the signature of Ashok Chattopadhyay, the Managing Director of respondent No.1, on the said cheque is forged. The learned counsel has urged that the said liability is being fastened on the appellant-bank on the basis of the law governing banking operations and that the proper remedy for enforcing the said liability is to file a civil suit and that it is not a matter which can be agitated through a writ petition under Article 226 of the Constitution. It has also been urged that the matter involves adjudication of disputed questions of fact inasmuch as the appellant-bank disputes that signature of Ashok Chattopadhyay on the cheque is forged. The learned counsel for the appellant-bank has submitted that the learned Judges of the High Court were not right in proceeding on the basis that the appellant-bank did not take precautions before making payment of large amount and the fact that cheque was forged is not in dispute and that the affidavit filed by R.V. Pinglay appears to be prima facie false and an after-thought. It has been pointed out that in the correspondence with respondent No.1 the appellant-bank did not accept the contention of respondent No.1 that one of the signatures of the joint signatories, namely, Ashok Chattopadhyay, the Managing Director of respondent No.1, was forged and further that the case of the appellant-bank is that the payment of the cheque was made in the ordinary course of business and that the procedure for honouring the cheque by the bank officials was correctly followed in the matter of encashment of the cheque. The appellant-bank has also denied the allegations made by respondent No.1 that there was collusion of bank staff with an outside unknown person for payment of the cheque and it was asserted that it was obvious negligence on the part of respondent No.1 not to keep the Cheque Book in the proper custody and that the respondent No.1 was making false allegations against the appellant-bank. The submission of the learned counsel was that various questions that arise in the case can be properly determined only on the basis of evidence that is adduced and that such determination cannot be made in a writ petition and it can be more appropriately adjudicated in a regular civil proceeding. 9. Shri P.H. Parekh, the learned counsel appearing for the respondents, has, on the other hand, urged that this appeal is directed against the interim order only and the main Writ Petition is still pending adjudication before the High Court and the question of maintainability of the Writ Petition would be gone into by the HIgh Court in the light of the objections that are raised by the appellant-bank. Shri Parekh has, however, urged that in view of the fact that the signature of one of the joint signatories on the cheque is forged the appellant-bank is liable to reimburse respondent No.1 the sum of Rs. 95,000/- that has been paid from the account of respondent No.1 on the basis of said cheque which was a nullity. In support of his aforesaid submission Shri Parekh has placed reliance on the decisions of this Court in Bihta Co- operative Development Cane Marketing Union Ltd. & Anr. v. The Bank of Bihar & Ors., (1967) 1 SCR 848 and Canara Bank v. Canara Sales Corporation & Ors., 1987 (2) SCR 1138. 10. Since the Writ Petition is still pending in the High Court and the question of maintainability of the Writ Petition has yet to be considered we do not propose to go into the said question. All that we wish to say at this stage is that the objections that have been raised by the appellant-bank against the maintainability of the writ petition are not such that they may be disregarded as lacking in substance. This is a factor which has a bearing or the exercise of discretion by the Court while passing the interim order in the writ petition.11. By the interim order the High Court has directed the appellant-bank to credit a sum of Rs.95,000/- in the current account No. 318 of respondent No.1. The High Court has recorded that respondent through their counsel had given an undertaking to bring back the amount if the Court so desires. The said interim order, in substance, grants the relief which the respondent would have been given at the final stage in the event of their writ petition being allowed by the High Court.12. Time and again this Court has deprecated the practice of granting interim orders which practically give the principal relief sought in the petition for no better reason than that a prima facie case has been made out, without being concerned about the balance of convenience, the public interest and a host of other considerations. [See : Assistant Collector of Central Excise, West Bengal v. Dunlop India Ltd & Ors., 1985 (1) SCC 260 at p. 265; State of Rajasthan & Ors. v. M/s Swaika Properties & Anr., 1985 (3) SCC 217 at p. 224].13. In the instant case since there is serious dispute on facts it cannot even be said that a prima facie case had been made out for grant of an interim order in favour of the respondents which enables them to have the reimbursement of the sum of Rs.95,000/- that was debited to their account in view of the encashment of the cheque in question. We are of the view that this was not a case in which the High Court while admitting the Writ Petition should have passed an interim order giving such a direction. In the circumstances we are unable to uphold the said interim order passed by the High Court.
### Response:
1
### Explanation:
10. Since the Writ Petition is still pending in the High Court and the question of maintainability of the Writ Petition has yet to be considered we do not propose to go into the said question. All that we wish to say at this stage is that the objections that have been raised by theagainst the maintainability of the writ petition are not such that they may be disregarded as lacking in substance. This is a factor which has a bearing or the exercise of discretion by the Court while passing the interim order in the writ petition.11. By the interim order the High Court has directed theto credit a sum of Rs.95,000/in the current account No. 318 of respondent No.1. The High Court has recorded that respondent through their counsel had given an undertaking to bring back the amount if the Court so desires. The said interim order, in substance, grants the relief which the respondent would have been given at the final stage in the event of their writ petition being allowed by the High Court.12. Time and again this Court has deprecated the practice of granting interim orders which practically give the principal relief sought in the petition for no better reason than that a prima facie case has been made out, without being concerned about the balance of convenience, the public interest and a host of other considerations. [See : Assistant Collector of Central Excise, West Bengal v. Dunlop India LtdOrs., 1985 (1) SCC 260 at p. 265; State of RajasthanOrs. v. M/s Swaika PropertiesAnr., 1985 (3) SCC 217 at p. 224].13. In the instant case since there is serious dispute on facts it cannot even be said that a prima facie case had been made out for grant of an interim order in favour of the respondents which enables them to have the reimbursement of the sum of Rs.95,000/that was debited to their account in view of the encashment of the cheque in question. We are of the view that this was not a case in which the High Court while admitting the Writ Petition should have passed an interim order giving such a direction. In the circumstances we are unable to uphold the said interim order passed by the High Court.
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British India Corporation Limited Vs. Market Committee, Dhariwal and Another | to make a fresh assessment according to the rules.The appellant contended in the present Writ Petition out of which this appeal has arisen that although it made all efforts for associating itself with the fresh assessment proceedings by producing the necessary records, the Market Committee once again levied market fee of Rs. 4, 26, 000/- and penalty of a like sum and made a demand for the total sum of Rs. 8, 52, 000/- by notice dated 16.8.1973. The present Writ Petition was filed under Articles 226 and 227 of the Constitution for quashing that demand notice and restraining the Market Committee from recovering the amount. The learned Single Judge allow ed the Writ Petition on a legal point that the assessment order made is not accordance with the provisions of the aforesaid Act and the Rules, without expressing any opinion on the merits of the case. The Market Committee, therefore filed t he aforesaid Letters Patent Appeal.2. There is no dispute that the raw material received by the Dhariwal Mills is an agricultural produce as defined is s. 2A of the Act and that the said commodity after being received by the Dhariwal Mills is weighed within the notified area of the Market Committee. The contest between the parties is on the question whether in the circumstances of the case the provisions of s. 23 of the Act were attracted or not.Section 23 of the Act reads thus:"A Committee shall, subject to such rules as may be made by the State Government in this behalf, levy on ad valorem basis fees on the agricultural produce bought or sold by licensees in the notified market area at a rate not exceeding two rupees and twenty paise for every one hundred rupees.Provided that:-(a) no fee shall be leviable in respect of any transaction in which delivery of the agricultural produce bought or sold is not actually made; and(b) a fee shall be leviable only on the parties to a transaction in which delivery is actually made."3. A perusal of the records produced by the appellant reveals the existence of a number of original contracts entered into by the appellant at Kanpur with various suppliers of raw wool in India with a provision practically in all the transactions that 80 per cent of the goods was payable against the documents and the balance after receipt and examination of the goods which were to be despatched to Dhariwal Mills directly. There are certain terms and conditions on the back of the contract forms in regard to the procedure for scouring yield. It will be necessary to state only a few of those terms and conditions. Clause A relating to the procedure for scouring yield read thus:-(A) Two bales at random are taken and issued to Scouring Department. The weight recorded at the time of receipt of the consignment is taken. After scouring in three bowl Scouring Machine using warm water, the wool is dried in the dryer and spread in a covered place for about 12 hours to regain normal moisture. The wool is then weighed and yield calculated".Clauses 2 and 3 read thus:2. The Mills have every right to reject a portion or bulk if the quality is not up to the suppliers samples given at the time of offers.3. Weight received in the mills will be taken as final weight."Rule 29 of the Punjab Agricultural Produce Market (General) Rules 1962 framed under the Act provides for levy of the fees on agricultural produce bought or sold by licensees in the notified market area. Rule 29 (7) read thus:"29 (7) For the purposes of this rule agricultural produce shall be deemed to have been bought or sold in a notified market area:(a) if the agreement of sale or purchase thereof is entered into the said area;(b) if in pursuance of the agreement of sale or purchase the agricultural produce is weighed in the said area; or(c) if in pursuance of the agreement of sale or purchase the agricultural produce is delivered in the said area to the purchaser or to some other person on behalf of the purchaser."Clauses (b) and (c) would be attracted bringing the transaction within the term bought or sold if in pursuance of the agreement of sale or purchase, even if entered into at Kanpur, the agricultural produce is weighed in the market area or if in pursuance of the agreement of sale or purchase the agricultural produce is delivered in the said area to the purchaser or to some other person on behalf of the purchaser.4. The Division Bench of the High Court in the Letters Patent Appeal was of the opinion that both clauses (b) and (c) are applicable to the facts of the present case even on the admitted facts of this case as the transaction of sale is completed immediately on the delivery of the goods to the Dhariwal Mils. In that view the learned Judges allowed the appeal and set aside the judgment of the learned Single Judge and left it open to the appellant-company to satisfy the Market Committee in respect of any transaction which does not fall within the scope of their judgment.5. The question is as regards the sites of the sale. If the sale transaction took place within the Market Committee either by delivery of the goods or by weighment thereof, the transaction would fall within the ambit of Rule 29 (7). After having heard learned counsel for the parties we are of the opinion that no interference with the judgment under appeal is called for except that it is necessary to make it clear that the delivery and weighment to be taken into consideration by the market Committee in respect of the past transactions regarding which the demand has been made and also future transactions must be delivery an/or weighment without which there will be no sale at all in law. Subject to this clarification we dismiss the appeal and direct the parties to bear their own costs.6. | 0[ds]A perusal of the records produced by the appellant reveals the existence of a number of original contracts entered into by the appellant at Kanpur with various suppliers of raw wool in India with a provision practically in all the transactions that 80 per cent of the goods was payable against the documents and the balance after receipt and examination of the goods which were to be despatched to Dhariwal Mills directly. There are certain terms and conditions on the back of the contract forms in regard to the procedure for scouring yield. It will be necessary to state only a few of those terms andDivision Bench of the High Court in the Letters Patent Appeal was of the opinion that both clauses (b) and (c) are applicable to the facts of the present case even on the admitted facts of this case as the transaction of sale is completed immediately on the delivery of the goods to the Dhariwal Mils. In that view the learned Judges allowed the appeal and set aside the judgment of the learned Single Judge and left it open to the appellant-company to satisfy the Market Committee in respect of any transaction which does not fall within the scope of theirquestion is as regards the sites of the sale. If the sale transaction took place within the Market Committee either by delivery of the goods or by weighment thereof, the transaction would fall within the ambit of Rule 29 (7). After having heard learned counsel for the parties we are of the opinion that no interference with the judgment under appeal is called for except that it is necessary to make it clear that the delivery and weighment to be taken into consideration by the market Committee in respect of the past transactions regarding which the demand has been made and also future transactions must be delivery an/or weighment without which there will be no sale at all in law. Subject to this clarification we dismiss the appeal and direct the parties to bear their own costs. | 0 | 1,536 | 360 | ### 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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to make a fresh assessment according to the rules.The appellant contended in the present Writ Petition out of which this appeal has arisen that although it made all efforts for associating itself with the fresh assessment proceedings by producing the necessary records, the Market Committee once again levied market fee of Rs. 4, 26, 000/- and penalty of a like sum and made a demand for the total sum of Rs. 8, 52, 000/- by notice dated 16.8.1973. The present Writ Petition was filed under Articles 226 and 227 of the Constitution for quashing that demand notice and restraining the Market Committee from recovering the amount. The learned Single Judge allow ed the Writ Petition on a legal point that the assessment order made is not accordance with the provisions of the aforesaid Act and the Rules, without expressing any opinion on the merits of the case. The Market Committee, therefore filed t he aforesaid Letters Patent Appeal.2. There is no dispute that the raw material received by the Dhariwal Mills is an agricultural produce as defined is s. 2A of the Act and that the said commodity after being received by the Dhariwal Mills is weighed within the notified area of the Market Committee. The contest between the parties is on the question whether in the circumstances of the case the provisions of s. 23 of the Act were attracted or not.Section 23 of the Act reads thus:"A Committee shall, subject to such rules as may be made by the State Government in this behalf, levy on ad valorem basis fees on the agricultural produce bought or sold by licensees in the notified market area at a rate not exceeding two rupees and twenty paise for every one hundred rupees.Provided that:-(a) no fee shall be leviable in respect of any transaction in which delivery of the agricultural produce bought or sold is not actually made; and(b) a fee shall be leviable only on the parties to a transaction in which delivery is actually made."3. A perusal of the records produced by the appellant reveals the existence of a number of original contracts entered into by the appellant at Kanpur with various suppliers of raw wool in India with a provision practically in all the transactions that 80 per cent of the goods was payable against the documents and the balance after receipt and examination of the goods which were to be despatched to Dhariwal Mills directly. There are certain terms and conditions on the back of the contract forms in regard to the procedure for scouring yield. It will be necessary to state only a few of those terms and conditions. Clause A relating to the procedure for scouring yield read thus:-(A) Two bales at random are taken and issued to Scouring Department. The weight recorded at the time of receipt of the consignment is taken. After scouring in three bowl Scouring Machine using warm water, the wool is dried in the dryer and spread in a covered place for about 12 hours to regain normal moisture. The wool is then weighed and yield calculated".Clauses 2 and 3 read thus:2. The Mills have every right to reject a portion or bulk if the quality is not up to the suppliers samples given at the time of offers.3. Weight received in the mills will be taken as final weight."Rule 29 of the Punjab Agricultural Produce Market (General) Rules 1962 framed under the Act provides for levy of the fees on agricultural produce bought or sold by licensees in the notified market area. Rule 29 (7) read thus:"29 (7) For the purposes of this rule agricultural produce shall be deemed to have been bought or sold in a notified market area:(a) if the agreement of sale or purchase thereof is entered into the said area;(b) if in pursuance of the agreement of sale or purchase the agricultural produce is weighed in the said area; or(c) if in pursuance of the agreement of sale or purchase the agricultural produce is delivered in the said area to the purchaser or to some other person on behalf of the purchaser."Clauses (b) and (c) would be attracted bringing the transaction within the term bought or sold if in pursuance of the agreement of sale or purchase, even if entered into at Kanpur, the agricultural produce is weighed in the market area or if in pursuance of the agreement of sale or purchase the agricultural produce is delivered in the said area to the purchaser or to some other person on behalf of the purchaser.4. The Division Bench of the High Court in the Letters Patent Appeal was of the opinion that both clauses (b) and (c) are applicable to the facts of the present case even on the admitted facts of this case as the transaction of sale is completed immediately on the delivery of the goods to the Dhariwal Mils. In that view the learned Judges allowed the appeal and set aside the judgment of the learned Single Judge and left it open to the appellant-company to satisfy the Market Committee in respect of any transaction which does not fall within the scope of their judgment.5. The question is as regards the sites of the sale. If the sale transaction took place within the Market Committee either by delivery of the goods or by weighment thereof, the transaction would fall within the ambit of Rule 29 (7). After having heard learned counsel for the parties we are of the opinion that no interference with the judgment under appeal is called for except that it is necessary to make it clear that the delivery and weighment to be taken into consideration by the market Committee in respect of the past transactions regarding which the demand has been made and also future transactions must be delivery an/or weighment without which there will be no sale at all in law. Subject to this clarification we dismiss the appeal and direct the parties to bear their own costs.6.
### Response:
0
### Explanation:
A perusal of the records produced by the appellant reveals the existence of a number of original contracts entered into by the appellant at Kanpur with various suppliers of raw wool in India with a provision practically in all the transactions that 80 per cent of the goods was payable against the documents and the balance after receipt and examination of the goods which were to be despatched to Dhariwal Mills directly. There are certain terms and conditions on the back of the contract forms in regard to the procedure for scouring yield. It will be necessary to state only a few of those terms andDivision Bench of the High Court in the Letters Patent Appeal was of the opinion that both clauses (b) and (c) are applicable to the facts of the present case even on the admitted facts of this case as the transaction of sale is completed immediately on the delivery of the goods to the Dhariwal Mils. In that view the learned Judges allowed the appeal and set aside the judgment of the learned Single Judge and left it open to the appellant-company to satisfy the Market Committee in respect of any transaction which does not fall within the scope of theirquestion is as regards the sites of the sale. If the sale transaction took place within the Market Committee either by delivery of the goods or by weighment thereof, the transaction would fall within the ambit of Rule 29 (7). After having heard learned counsel for the parties we are of the opinion that no interference with the judgment under appeal is called for except that it is necessary to make it clear that the delivery and weighment to be taken into consideration by the market Committee in respect of the past transactions regarding which the demand has been made and also future transactions must be delivery an/or weighment without which there will be no sale at all in law. Subject to this clarification we dismiss the appeal and direct the parties to bear their own costs.
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DLF Universal Ltd. and Anr Vs. The Director General [Investigation and Registration] and Anr | specified. In other words, if a transfer is made in violation of the undertaking, the statute does not provide that the same would be illegal or the transferee would not derive any title by reason thereof.37. The right of a transferee, however, would be subject to the building laws or regulatory statute relating to user of the property. In terms of the said Act, in the event the Government takes over the plots, it would be at liberty to transfer such land to any person or institution including a local authority as it may deem fit. Purpose of such a clause, therefore, is to ensure that schools, hospitals, community centres and other community buildings are established at the places reserved there for in the sanction plan but there does not exist any embargo as regards the person or persons who would run and manage the same.38. A regulatory Act must be construed having regard to the purpose it seeks to achieve. The State as a statutory authority cannot ask for something which is not contemplated under the Act. A statute relating to regulation of user of land must not be construed to be a limitation prohibiting transfer of land which does not affect its user.39. The plan provides that schools, hospitals etc. would be located at particular sites. When that purpose is satisfied, the court in the name of interpretation would not make a further attempt to find out who did so." 22. The Commission, in the light of the above-noted judgment of this Court, disposed of the complaint of the second-respondent on 21.8.1991 without going into the merits of the case. Later on, on a review application filed by the complainant - second respondent, it was submitted before the Commission on 4.7.2003 that the appellants were now willing to hand over the possession of the site/plot to he complainant - second respondent subject to execution of the fresh lease deed without modification and deviation of the standard lease deed to be executed by all such lessors. The complainant – second respondent suggested the above-stated modifications and their incorporation in the draft agreement in line with clause 11(a)(b)(i) of the lease deed agreement dated 01.12.1992. 23. The Commission disposed of the review application of the complainant - second respondent by order dated 16.01.2004, which reads as under:- "The learned counsel for the respondent states that the respondent is willing to execute a fresh lease deed in favour of the informant. The commercial terms as contained in the earlier lease deed dated 01.12.1992 shall not modified and altered and shall remain the same in framing of the new lease deed which shall be executed between the parties. The respondent will indicate the amount of lease rent which is payable by the informant within one week. The informant shall pay the said lease rent within one week thereafter. The informant as well as the respondent shall sign the modified lease deed and the possession of the plot shall be handed over to the informant. The present review application is disposed of in these terms and the order passed on 21st August, 2001 is modified accordingly.” 24. Thereafter, another order recorded by the Commission on 29.07.2005 reads as under:- "The learned counsel for the respondent states that they have already furnished a standard lease draft to the applicant which he acknowledges to have received. The learned advocate is directed to file the same with the Commission. The applicant is directed to suggest the amendments, if any, he proposes on the draft lease furnished by the informant to him within four weeks with a copy to the Commission. The respondents thereafter would prepare a second draft after incorporating necessary changes that they feel would be accommodated in the agreement. A copy of the 2nd draft shall also be made available to the respondent and also to the Commission. Thereafter the case could be taken for consideration. List on 18.10.2005.” 25. The case of the complainant - second respondent before the Commission was that he has furnished necessary, effective and valid suggestions which are to be incorporated in the fresh lease because of delay in handing over the possession of the alternate site/plot to him. It is the admitted case that the appellants have not challenged the order of the Commission dated 16.01.2004 by which the parties were directed that the commercial terms as contained in the earlier lease deed dated 01.12.1992 shall not be modified and altered and shall remain the same in framing of the new lease deed which shall be executed between the parties.26. Section 13A empowers the Commission to cause investigation to find out whether or not orders made by it under this Act have been complied with or any obligation imposed upon any person by or under any order made by the Commission under this Act, authorizes the Director General or any officer of the Commission to make investigation into the matter and the Director General or the officer so authorized, may, for the purpose of making such investigation, exercise all or any of the powers conferred on the Director General by Section 11. In terms of sub-section (2), the Director General , or, as the case may be, the officer so authorized, shall submit to the Commission a report of the investigation to enable the Commission to take such action in the matter as it may think fit. 27. The Commission under Section 13B is also empowered to exercise the powers, jurisdiction and authority to punish the person in respect of contempt of itself. 28. In the backdrop of the facts of the present case, once the appellants have accepted the earlier order of the Commission dated 16.01.2004 which has attained finality, the appellants are left with no other option but to execute a fresh lease deed with the complainant - second respondent on modified terms suggested by him. The order of the Commission impugned in this appeal does not suffer from any manifest error or perversity or invalidity. | 0[ds]15. It is not in dispute that DLF is a colonizer. It is further not in dispute that licences had been granted to it for the construction of a colony. It also stands admitted that the schools, hospitals, community centres and other community buildings were required to be constructed in the colony in terms of the licences granted under the State Act.It was the admitted case of the parties before the Commission that agreement to lease of land bearing site/plot No. 3136 admeasuring 0.20 acres for starting a Nursery School for a consideration of Rs. 4 lakhs was entered into between the appellants and second respondent on 01.12.1992. The appellants later on issued a letter dated 19.5.1994 making allotment of 0.35 acres of alternate land bearing site/plot no. 3103 in place of plot No. 3136 to the complainant-respondent on payment of additional charges to the tune of Rs. 2,96,204 on account of increase in area. The order of the Commission reveals that some instructions were issued by the Government of Haryana on 25.10.1994 and 13.2.1996 regarding transferring of community sites to third and fourth parties under the following three heads:-(i) Where the community sites are still in the ownership of the colonizer.(ii) Sites where colonizers have created third party rights before 7.8.1991.(iii) Cases where the licences have created fourth pay right on community sites.The case of the complainant - second respondent before the Commission was that he has furnished necessary, effective and valid suggestions which are to be incorporated in the fresh lease because of delay in handing over the possession of the alternate site/plot to him. It is the admitted case that the appellants have not challenged the order of the Commission dated 16.01.2004 by which the parties were directed that the commercial terms as contained in the earlier lease deed dated 01.12.1992 shall not be modified and altered and shall remain the same in framing of the new lease deed which shall be executed between the parties.26. Section 13A empowers the Commission to cause investigation to find out whether or not orders made by it under this Act have been complied with or any obligation imposed upon any person by or under any order made by the Commission under this Act, authorizes the Director General or any officer of the Commission to make investigation into the matter and the Director General or the officer so authorized, may, for the purpose of making such investigation, exercise all or any of the powers conferred on the Director General by Section 11. In terms of sub-section (2), the Director General , or, as the case may be, the officer so authorized, shall submit to the Commission a report of the investigation to enable the Commission to take such action in the matter as it may think fit.In the backdrop of the facts of the present case, once the appellants have accepted the earlier order of the Commission dated 16.01.2004 which has attained finality, the appellants are left with no other option but to execute a fresh lease deed with the complainant - second respondent on modified terms suggested by him. The order of the Commission impugned in this appeal does not suffer from any manifest error or perversity or invalidity. | 0 | 6,761 | 586 | ### 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:
specified. In other words, if a transfer is made in violation of the undertaking, the statute does not provide that the same would be illegal or the transferee would not derive any title by reason thereof.37. The right of a transferee, however, would be subject to the building laws or regulatory statute relating to user of the property. In terms of the said Act, in the event the Government takes over the plots, it would be at liberty to transfer such land to any person or institution including a local authority as it may deem fit. Purpose of such a clause, therefore, is to ensure that schools, hospitals, community centres and other community buildings are established at the places reserved there for in the sanction plan but there does not exist any embargo as regards the person or persons who would run and manage the same.38. A regulatory Act must be construed having regard to the purpose it seeks to achieve. The State as a statutory authority cannot ask for something which is not contemplated under the Act. A statute relating to regulation of user of land must not be construed to be a limitation prohibiting transfer of land which does not affect its user.39. The plan provides that schools, hospitals etc. would be located at particular sites. When that purpose is satisfied, the court in the name of interpretation would not make a further attempt to find out who did so." 22. The Commission, in the light of the above-noted judgment of this Court, disposed of the complaint of the second-respondent on 21.8.1991 without going into the merits of the case. Later on, on a review application filed by the complainant - second respondent, it was submitted before the Commission on 4.7.2003 that the appellants were now willing to hand over the possession of the site/plot to he complainant - second respondent subject to execution of the fresh lease deed without modification and deviation of the standard lease deed to be executed by all such lessors. The complainant – second respondent suggested the above-stated modifications and their incorporation in the draft agreement in line with clause 11(a)(b)(i) of the lease deed agreement dated 01.12.1992. 23. The Commission disposed of the review application of the complainant - second respondent by order dated 16.01.2004, which reads as under:- "The learned counsel for the respondent states that the respondent is willing to execute a fresh lease deed in favour of the informant. The commercial terms as contained in the earlier lease deed dated 01.12.1992 shall not modified and altered and shall remain the same in framing of the new lease deed which shall be executed between the parties. The respondent will indicate the amount of lease rent which is payable by the informant within one week. The informant shall pay the said lease rent within one week thereafter. The informant as well as the respondent shall sign the modified lease deed and the possession of the plot shall be handed over to the informant. The present review application is disposed of in these terms and the order passed on 21st August, 2001 is modified accordingly.” 24. Thereafter, another order recorded by the Commission on 29.07.2005 reads as under:- "The learned counsel for the respondent states that they have already furnished a standard lease draft to the applicant which he acknowledges to have received. The learned advocate is directed to file the same with the Commission. The applicant is directed to suggest the amendments, if any, he proposes on the draft lease furnished by the informant to him within four weeks with a copy to the Commission. The respondents thereafter would prepare a second draft after incorporating necessary changes that they feel would be accommodated in the agreement. A copy of the 2nd draft shall also be made available to the respondent and also to the Commission. Thereafter the case could be taken for consideration. List on 18.10.2005.” 25. The case of the complainant - second respondent before the Commission was that he has furnished necessary, effective and valid suggestions which are to be incorporated in the fresh lease because of delay in handing over the possession of the alternate site/plot to him. It is the admitted case that the appellants have not challenged the order of the Commission dated 16.01.2004 by which the parties were directed that the commercial terms as contained in the earlier lease deed dated 01.12.1992 shall not be modified and altered and shall remain the same in framing of the new lease deed which shall be executed between the parties.26. Section 13A empowers the Commission to cause investigation to find out whether or not orders made by it under this Act have been complied with or any obligation imposed upon any person by or under any order made by the Commission under this Act, authorizes the Director General or any officer of the Commission to make investigation into the matter and the Director General or the officer so authorized, may, for the purpose of making such investigation, exercise all or any of the powers conferred on the Director General by Section 11. In terms of sub-section (2), the Director General , or, as the case may be, the officer so authorized, shall submit to the Commission a report of the investigation to enable the Commission to take such action in the matter as it may think fit. 27. The Commission under Section 13B is also empowered to exercise the powers, jurisdiction and authority to punish the person in respect of contempt of itself. 28. In the backdrop of the facts of the present case, once the appellants have accepted the earlier order of the Commission dated 16.01.2004 which has attained finality, the appellants are left with no other option but to execute a fresh lease deed with the complainant - second respondent on modified terms suggested by him. The order of the Commission impugned in this appeal does not suffer from any manifest error or perversity or invalidity.
### Response:
0
### Explanation:
15. It is not in dispute that DLF is a colonizer. It is further not in dispute that licences had been granted to it for the construction of a colony. It also stands admitted that the schools, hospitals, community centres and other community buildings were required to be constructed in the colony in terms of the licences granted under the State Act.It was the admitted case of the parties before the Commission that agreement to lease of land bearing site/plot No. 3136 admeasuring 0.20 acres for starting a Nursery School for a consideration of Rs. 4 lakhs was entered into between the appellants and second respondent on 01.12.1992. The appellants later on issued a letter dated 19.5.1994 making allotment of 0.35 acres of alternate land bearing site/plot no. 3103 in place of plot No. 3136 to the complainant-respondent on payment of additional charges to the tune of Rs. 2,96,204 on account of increase in area. The order of the Commission reveals that some instructions were issued by the Government of Haryana on 25.10.1994 and 13.2.1996 regarding transferring of community sites to third and fourth parties under the following three heads:-(i) Where the community sites are still in the ownership of the colonizer.(ii) Sites where colonizers have created third party rights before 7.8.1991.(iii) Cases where the licences have created fourth pay right on community sites.The case of the complainant - second respondent before the Commission was that he has furnished necessary, effective and valid suggestions which are to be incorporated in the fresh lease because of delay in handing over the possession of the alternate site/plot to him. It is the admitted case that the appellants have not challenged the order of the Commission dated 16.01.2004 by which the parties were directed that the commercial terms as contained in the earlier lease deed dated 01.12.1992 shall not be modified and altered and shall remain the same in framing of the new lease deed which shall be executed between the parties.26. Section 13A empowers the Commission to cause investigation to find out whether or not orders made by it under this Act have been complied with or any obligation imposed upon any person by or under any order made by the Commission under this Act, authorizes the Director General or any officer of the Commission to make investigation into the matter and the Director General or the officer so authorized, may, for the purpose of making such investigation, exercise all or any of the powers conferred on the Director General by Section 11. In terms of sub-section (2), the Director General , or, as the case may be, the officer so authorized, shall submit to the Commission a report of the investigation to enable the Commission to take such action in the matter as it may think fit.In the backdrop of the facts of the present case, once the appellants have accepted the earlier order of the Commission dated 16.01.2004 which has attained finality, the appellants are left with no other option but to execute a fresh lease deed with the complainant - second respondent on modified terms suggested by him. The order of the Commission impugned in this appeal does not suffer from any manifest error or perversity or invalidity.
|
Tata Iron & Steel Company Ltd Vs. District Transport Officer & Others | the present appeal arises.5. After perusing the impugned judgment it would be seen that the aforesaid contention of the appellant challenging the order of the Adjudicating Authority has not been dealt with or answered at all though it is specifically taken note of in para 4 of the said judgment. On the other hand, the entire basis of the impugned judgment rests on the discussion on the explanation for "adapted" which occurs in the definition and which is the first requirement of the definition as mentioned above. Referring to some judgments of Kerala High Court as well as of this Court in M/s. Central Coalfields Ltd. v. State of Orissa [AIR 1992 SC 1371 : (1992) Supp.3 SCC 133], the High Court has held that the expression adapted has to be given its full meaning and when the vehicle was capable of being used for carrying of passengers and goods, it would be treated as "Public Service Motor Vehicle." This approach is clearly faulty. There was no dispute about the first requirement. As mentioned above, the appellant had rested its case on the submission that the second requirement namely hire or reward had not been fulfilled. That argument has not been answered and instead the High Court went astray in basing its judgment on altogether different aspects which were not even in dispute.6. In the aforesaid backdrop, when the High Court has failed to answer the contention of the appellant on the basis of which the order of the Adjudicating Authority was challenged, we have to decide as to whether the Adjudicating Authority was correct in holding that the use of vehicles in the manner mentioned above amounts to using for reward. We do not think it to be so.7. Mr. D.A. Dave, learned senior counsel appearing for the appellant, was right in his submission that the expression hire or reward would mean that the vehicle must be run for the benefit of another. Obviously, the appellant is the owner, if the vehicle is given on hire to a third person and charges are received therefrom, it would amount to using the vehicle for hire. Likewise, when the owner of the vehicle uses the vehicle himself but for the benefit of another person i.e. third person and receives some charges for the said use, that may fulfill the requirement of reward. Insofar as the present case is concerned, the vehicles are not used for the third party at all.8. Most of the vehicles are used for business purposes. Some vehicles are used for carrying the children of the employees from their residence to schools and back. That would not be treated as using the vehicle for public or third party as held by this Court in M/s. Tata Engineering Locomotive Co. Ltd. v. The Sales Tax Officer Poona and Anr. [(1979) 1 SCC 208] . We may also usefully refer the judgment of this court in Hindustan Aeronautics Ltd. v. Registering Authority and Ors. [(1999)8 SCC 169] , where the expressions hire or reward are explained in the following manner:"9. Although the circular is captioned Revision of charges to be levied for private use of Companys Vehicles, it is made clear that the policy of the company is to discourage private use of companys transport or vehicles but wherever it is considered necessary to permit such use in unavoidable cases, the officer concerned will intimate the employees of the revised rates before forwarding the requests to the General Manager for approval. Thus the rates specified are not by way of an offer to the general public but to regulate the use of the vehicles in a particular manner. Thus the buses are not plied for hire or reward. And, in addition to that, the vehicles are used mainly for their employees and their children as part of the welfare measure of the employees. If the members of the family of the employees, like the spouses or children, are allowed to travel in those buses, it should not be treated as the vehicle being plied for hire or reward. In such circumstances, we do not think that the authorities were justified in treating the vehicles as being plied for hire or reward. They have lost sight of the fact that the requirement to attract the charge under Entry 4 of the Schedule to the Act was plying of motor vehicles for hire and not mere user. Therefore, we do not think that either the High Court or authorities under the Act were justified in either imposing the higher rate of tax under Entry 4 of the Schedule to the Act or upholding the same when challenged."9. Mr. Sinha, learned senior counsel who appeared for the respondent, submitted that the case is covered by two judgments of this Court, which are: (1) State of Mysore v. Syed Ibrahim [(1967) 2 SCR 361 and (2) M/s. Central Coal Fields Ltd. v. State of Orissa [(1992) Supp.3 SCC 133. In State of Mysore(supra) where the question arose as to whether vehicle in question used would be covered by the definition of "Public Service Motor Vehicle" and public service vehicle contained in Section 42(1) read with Section 2(18) of the Act. The question was answered in the affirmative. However, the issue which was to be determined was as to whether carrying of passengers would make the vehicle as "Public Service Motor Vehicle". There was no dispute that the said vehicle was used for hire or reward and, therefore, this aspect, with which we are directly concerned in the present case, was not in issue at all. The judgment therefore, shall be no help to the respondent. Same is the position in M/s. Central Coal Fields Ltd.(supra) as well wherein again the question that fell for consideration was as to whether a particular vehicle was adapted for use upon roads to attract tax liability. Here again the issue pertaining to the meaning that is to be assigned to hire or reward had not arisen for consideration. | 1[ds]5. After perusing the impugned judgment it would be seen that the aforesaid contention of the appellant challenging the order of the Adjudicating Authority has not been dealt with or answered at all though it is specifically taken note of in para 4 of the said judgment. On the other hand, the entire basis of the impugned judgment rests on the discussion on the explanation for "adapted" which occurs in the definition and which is the first requirement of the definition as mentioned above. Referring to some judgments of Kerala High Court as well as of this Court in M/s. Central Coalfields Ltd. v. State of Orissa [AIR 1992 SC 1371 : (1992) Supp.3 SCC 133], the High Court has held that the expression adapted has to be given its full meaning and when the vehicle was capable of being used for carrying of passengers and goods, it would be treated as "Public Service Motor Vehicle." This approach is clearly faulty. There was no dispute about the first requirement. Asmentioned above, the appellant had rested its case on the submission that the second requirement namely hire or reward had not been fulfilled.That argument has not been answered and instead the High Court went astray in basing its judgment on altogether different aspects which were not even in dispute.6. In the aforesaid backdrop, when the High Court has failed to answer the contention of the appellant on the basis of which the order of the Adjudicating Authority was challenged, we have to decide as to whether the Adjudicating Authority was correct in holding that the use of vehicles in the manner mentioned above amounts to using for reward. We do not think it to be so.Mr. D.A. Dave, learned senior counsel appearing for the appellant, was right in his submission that the expression hire or reward would mean that the vehicle must be run for the benefit of another. Obviously, the appellant is the owner, if the vehicle is given on hire to a third person and charges are received therefrom, it would amount to using the vehicle for hire. Likewise, when the owner of the vehicle uses the vehicle himself but for the benefit of another person i.e. third person and receives some charges for the said use, that may fulfill the requirement of reward. Insofar as the present case is concerned, the vehicles are not used for the third party at all.8. Most of the vehicles are used for business purposes. Some vehicles are used for carrying the children of the employees from their residence to schools and back. That would not be treated as using the vehicle for public or third party as held by this Court in M/s. Tata Engineering Locomotive Co. Ltd. v. The Sales Tax Officer Poona and Anr. [(1979) 1 SCC 208] . We may also usefully refer the judgment of this court in Hindustan Aeronautics Ltd. v. Registering Authority and Ors. [(1999)8 SCC 169] , where the expressions hire or reward are explained in the following manner:"9. Although the circular is captioned Revision of charges to be levied for private use of Companys Vehicles, it is made clear that the policy of the company is to discourage private use of companys transport or vehicles but wherever it is considered necessary to permit such use in unavoidable cases, the officer concerned will intimate the employees of the revised rates before forwarding the requests to the General Manager for approval. Thus the rates specified are not by way of an offer to the general public but to regulate the use of the vehicles in a particular manner. Thus the buses are not plied for hire or reward. And, in addition to that, the vehicles are used mainly for their employees and their children as part of the welfare measure of the employees. If the members of the family of the employees, like the spouses or children, are allowed to travel in those buses, it should not be treated as the vehicle being plied for hire or reward. In such circumstances, we do not think that the authorities were justified in treating the vehicles as being plied for hire or reward. They have lost sight of the fact that the requirement to attract the charge under Entry 4 of the Schedule to the Act was plying of motor vehicles for hire and not mere user. Therefore, we do not think that either the High Court or authorities under the Act were justified in either imposing the higher rate of tax under Entry 4 of the Schedule to the Act or upholding the same when challenged."9. Mr. Sinha, learned senior counsel who appeared for the respondent, submitted that the case is covered by two judgments of this Court, which are: (1) State of Mysore v. Syed Ibrahim [(1967) 2 SCR 361 and (2) M/s. Central Coal Fields Ltd. v. State of Orissa [(1992) Supp.3 SCC 133. In State of Mysore(supra) where the question arose as to whether vehicle in question used would be covered by the definition of "Public Service Motor Vehicle" and public service vehicle contained in Section 42(1) read with Section 2(18) of the Act. The question was answered in the affirmative. However, the issue which was to be determined was as to whether carrying of passengers would make the vehicle as "Public Service Motor Vehicle". There was no dispute that the said vehicle was used for hire or reward and, therefore, this aspect, with which we are directly concerned in the present case, was not in issue at all. The judgment therefore, shall be no help to the respondent. Same is the position in M/s. Central Coal Fields Ltd.(supra) as well wherein again the question that fell for consideration was as to whether a particular vehicle was adapted for use upon roads to attract tax liability. Here again the issue pertaining to the meaning that is to be assigned to hire or reward had not arisen for consideration.. D.A. Dave, learned senior counsel appearing for the appellant, was right in his submission that the expression hire or reward would mean that the vehicle must be run for the benefit of another. Obviously, the appellant is the owner, if the vehicle is given on hire to a third person and charges are received therefrom, it would amount to using the vehicle for hire. Likewise, when the owner of the vehicle uses the vehicle himself but for the benefit of another person i.e. third person and receives some charges for the said use, that may fulfill the requirement of reward. Insofar as the present case is concerned, the vehicles are not used for the third party at all.8. Most of the vehicles are used for business purposes. Some vehicles are used for carrying the children of the employees from their residence to schools and back. That would not be treated as using the vehicle for public or third party as held by this Court in M/s. Tata Engineering Locomotive Co. Ltd. v. The Sales Tax Officer Poona and Anr. [(1979) 1 SCC 208] . We may also usefully refer the judgment of this court in Hindustan Aeronautics Ltd. v. Registering Authority and Ors. [(1999)8 SCC 169] , where the expressions hire or reward are explained in the following manner:"9. Although the circular is captioned Revision of charges to be levied for private use of Companys Vehicles, it is made clear that the policy of the company is to discourage private use of companys transport or vehicles but wherever it is considered necessary to permit such use in unavoidable cases, the officer concerned will intimate the employees of the revised rates before forwarding the requests to the General Manager for approval. Thus the rates specified are not by way of an offer to the general public but to regulate the use of the vehicles in a particular manner. Thus the buses are not plied for hire or reward. And, in addition to that, the vehicles are used mainly for their employees and their children as part of the welfare measure of the employees. If the members of the family of the employees, like the spouses or children, are allowed to travel in those buses, it should not be treated as the vehicle being plied for hire or reward. In such circumstances, we do not think that the authorities were justified in treating the vehicles as being plied for hire or reward. They have lost sight of the fact that the requirement to attract the charge under Entry 4 of the Schedule to the Act was plying of motor vehicles for hire and not mere user. Therefore, we do not think that either the High Court or authorities under the Act were justified in either imposing the higher rate of tax under Entry 4 of the Schedule to the Act or upholding the same when challenged. | 1 | 2,230 | 1,652 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
the present appeal arises.5. After perusing the impugned judgment it would be seen that the aforesaid contention of the appellant challenging the order of the Adjudicating Authority has not been dealt with or answered at all though it is specifically taken note of in para 4 of the said judgment. On the other hand, the entire basis of the impugned judgment rests on the discussion on the explanation for "adapted" which occurs in the definition and which is the first requirement of the definition as mentioned above. Referring to some judgments of Kerala High Court as well as of this Court in M/s. Central Coalfields Ltd. v. State of Orissa [AIR 1992 SC 1371 : (1992) Supp.3 SCC 133], the High Court has held that the expression adapted has to be given its full meaning and when the vehicle was capable of being used for carrying of passengers and goods, it would be treated as "Public Service Motor Vehicle." This approach is clearly faulty. There was no dispute about the first requirement. As mentioned above, the appellant had rested its case on the submission that the second requirement namely hire or reward had not been fulfilled. That argument has not been answered and instead the High Court went astray in basing its judgment on altogether different aspects which were not even in dispute.6. In the aforesaid backdrop, when the High Court has failed to answer the contention of the appellant on the basis of which the order of the Adjudicating Authority was challenged, we have to decide as to whether the Adjudicating Authority was correct in holding that the use of vehicles in the manner mentioned above amounts to using for reward. We do not think it to be so.7. Mr. D.A. Dave, learned senior counsel appearing for the appellant, was right in his submission that the expression hire or reward would mean that the vehicle must be run for the benefit of another. Obviously, the appellant is the owner, if the vehicle is given on hire to a third person and charges are received therefrom, it would amount to using the vehicle for hire. Likewise, when the owner of the vehicle uses the vehicle himself but for the benefit of another person i.e. third person and receives some charges for the said use, that may fulfill the requirement of reward. Insofar as the present case is concerned, the vehicles are not used for the third party at all.8. Most of the vehicles are used for business purposes. Some vehicles are used for carrying the children of the employees from their residence to schools and back. That would not be treated as using the vehicle for public or third party as held by this Court in M/s. Tata Engineering Locomotive Co. Ltd. v. The Sales Tax Officer Poona and Anr. [(1979) 1 SCC 208] . We may also usefully refer the judgment of this court in Hindustan Aeronautics Ltd. v. Registering Authority and Ors. [(1999)8 SCC 169] , where the expressions hire or reward are explained in the following manner:"9. Although the circular is captioned Revision of charges to be levied for private use of Companys Vehicles, it is made clear that the policy of the company is to discourage private use of companys transport or vehicles but wherever it is considered necessary to permit such use in unavoidable cases, the officer concerned will intimate the employees of the revised rates before forwarding the requests to the General Manager for approval. Thus the rates specified are not by way of an offer to the general public but to regulate the use of the vehicles in a particular manner. Thus the buses are not plied for hire or reward. And, in addition to that, the vehicles are used mainly for their employees and their children as part of the welfare measure of the employees. If the members of the family of the employees, like the spouses or children, are allowed to travel in those buses, it should not be treated as the vehicle being plied for hire or reward. In such circumstances, we do not think that the authorities were justified in treating the vehicles as being plied for hire or reward. They have lost sight of the fact that the requirement to attract the charge under Entry 4 of the Schedule to the Act was plying of motor vehicles for hire and not mere user. Therefore, we do not think that either the High Court or authorities under the Act were justified in either imposing the higher rate of tax under Entry 4 of the Schedule to the Act or upholding the same when challenged."9. Mr. Sinha, learned senior counsel who appeared for the respondent, submitted that the case is covered by two judgments of this Court, which are: (1) State of Mysore v. Syed Ibrahim [(1967) 2 SCR 361 and (2) M/s. Central Coal Fields Ltd. v. State of Orissa [(1992) Supp.3 SCC 133. In State of Mysore(supra) where the question arose as to whether vehicle in question used would be covered by the definition of "Public Service Motor Vehicle" and public service vehicle contained in Section 42(1) read with Section 2(18) of the Act. The question was answered in the affirmative. However, the issue which was to be determined was as to whether carrying of passengers would make the vehicle as "Public Service Motor Vehicle". There was no dispute that the said vehicle was used for hire or reward and, therefore, this aspect, with which we are directly concerned in the present case, was not in issue at all. The judgment therefore, shall be no help to the respondent. Same is the position in M/s. Central Coal Fields Ltd.(supra) as well wherein again the question that fell for consideration was as to whether a particular vehicle was adapted for use upon roads to attract tax liability. Here again the issue pertaining to the meaning that is to be assigned to hire or reward had not arisen for consideration.
### Response:
1
### Explanation:
court in Hindustan Aeronautics Ltd. v. Registering Authority and Ors. [(1999)8 SCC 169] , where the expressions hire or reward are explained in the following manner:"9. Although the circular is captioned Revision of charges to be levied for private use of Companys Vehicles, it is made clear that the policy of the company is to discourage private use of companys transport or vehicles but wherever it is considered necessary to permit such use in unavoidable cases, the officer concerned will intimate the employees of the revised rates before forwarding the requests to the General Manager for approval. Thus the rates specified are not by way of an offer to the general public but to regulate the use of the vehicles in a particular manner. Thus the buses are not plied for hire or reward. And, in addition to that, the vehicles are used mainly for their employees and their children as part of the welfare measure of the employees. If the members of the family of the employees, like the spouses or children, are allowed to travel in those buses, it should not be treated as the vehicle being plied for hire or reward. In such circumstances, we do not think that the authorities were justified in treating the vehicles as being plied for hire or reward. They have lost sight of the fact that the requirement to attract the charge under Entry 4 of the Schedule to the Act was plying of motor vehicles for hire and not mere user. Therefore, we do not think that either the High Court or authorities under the Act were justified in either imposing the higher rate of tax under Entry 4 of the Schedule to the Act or upholding the same when challenged."9. Mr. Sinha, learned senior counsel who appeared for the respondent, submitted that the case is covered by two judgments of this Court, which are: (1) State of Mysore v. Syed Ibrahim [(1967) 2 SCR 361 and (2) M/s. Central Coal Fields Ltd. v. State of Orissa [(1992) Supp.3 SCC 133. In State of Mysore(supra) where the question arose as to whether vehicle in question used would be covered by the definition of "Public Service Motor Vehicle" and public service vehicle contained in Section 42(1) read with Section 2(18) of the Act. The question was answered in the affirmative. However, the issue which was to be determined was as to whether carrying of passengers would make the vehicle as "Public Service Motor Vehicle". There was no dispute that the said vehicle was used for hire or reward and, therefore, this aspect, with which we are directly concerned in the present case, was not in issue at all. The judgment therefore, shall be no help to the respondent. Same is the position in M/s. Central Coal Fields Ltd.(supra) as well wherein again the question that fell for consideration was as to whether a particular vehicle was adapted for use upon roads to attract tax liability. Here again the issue pertaining to the meaning that is to be assigned to hire or reward had not arisen for consideration.. D.A. Dave, learned senior counsel appearing for the appellant, was right in his submission that the expression hire or reward would mean that the vehicle must be run for the benefit of another. Obviously, the appellant is the owner, if the vehicle is given on hire to a third person and charges are received therefrom, it would amount to using the vehicle for hire. Likewise, when the owner of the vehicle uses the vehicle himself but for the benefit of another person i.e. third person and receives some charges for the said use, that may fulfill the requirement of reward. Insofar as the present case is concerned, the vehicles are not used for the third party at all.8. Most of the vehicles are used for business purposes. Some vehicles are used for carrying the children of the employees from their residence to schools and back. That would not be treated as using the vehicle for public or third party as held by this Court in M/s. Tata Engineering Locomotive Co. Ltd. v. The Sales Tax Officer Poona and Anr. [(1979) 1 SCC 208] . We may also usefully refer the judgment of this court in Hindustan Aeronautics Ltd. v. Registering Authority and Ors. [(1999)8 SCC 169] , where the expressions hire or reward are explained in the following manner:"9. Although the circular is captioned Revision of charges to be levied for private use of Companys Vehicles, it is made clear that the policy of the company is to discourage private use of companys transport or vehicles but wherever it is considered necessary to permit such use in unavoidable cases, the officer concerned will intimate the employees of the revised rates before forwarding the requests to the General Manager for approval. Thus the rates specified are not by way of an offer to the general public but to regulate the use of the vehicles in a particular manner. Thus the buses are not plied for hire or reward. And, in addition to that, the vehicles are used mainly for their employees and their children as part of the welfare measure of the employees. If the members of the family of the employees, like the spouses or children, are allowed to travel in those buses, it should not be treated as the vehicle being plied for hire or reward. In such circumstances, we do not think that the authorities were justified in treating the vehicles as being plied for hire or reward. They have lost sight of the fact that the requirement to attract the charge under Entry 4 of the Schedule to the Act was plying of motor vehicles for hire and not mere user. Therefore, we do not think that either the High Court or authorities under the Act were justified in either imposing the higher rate of tax under Entry 4 of the Schedule to the Act or upholding the same when challenged.
|
SHISHUPAL SINGH Vs. THE STATE OF UTTAR PRADESH HOME DEPARTMENT STATION HOUSE OFFICER | SANJAY KISHAN KAUL, J. 1. Leave granted. 2. An FIR dated 04.09.2005 was registered in P.S. Khera Garh, District Agra, Uttar Pradesh in respect of Crime Case No.331/05 under Sections 147,148,149,307,302,323,504 and 506 of IPC. 3. The police carried out investigation and filed a charge- sheet. While the trial was on, during the examination-in-chief of PW-1, an order has been passed exercising power under Section 319 of the Cr.P.C. to summon the appellant as an accused. This order was sought to be assailed in a revision petition which was dismissed. Thus, the appellant has filed the present appeal. 4. A perusal of the FIR would show that the complainant is PW-1. The role ascribed to the appellant was that he came with a country made revolver at the site but the deceased Satyapal was fired upon by two other accused which caused the death. This is what has been stated in the examination-in-chief of PW-1. 5. It is pointed out by learned counsel that PW-1 was the only person who named the appellant while other eye witnesses including the injured witness did not do so. 6. A perusal of the order dated 02.09.2006 would show that what is recorded is that the prosecution has given an application under Section 319 of the Cr.P.C. This is admittedly not factually correct. The application was filed by the complainant aggrieved by the dropping of the name of the appellant from the array of accused on which orders have been passed. The trial Court has stated that the appellant was not summoned as an accused on the basis of the charge-sheet which did not name him as an accused. The order for summoning has been passed on the following rationale:?In the present case PW-1, has stated under the evidence given on oath that shishupal son of gitam singh was also present alongwith other accused he was carrying a country made revolver. He had fired upon them with an intention to kill form which persons from their side have suffered injury. Them of this accused was mentioned in the written complaint of the complainant and the FIR. But the police had not sent chargesheet against him. There are sufficient grounds available for summoning the accused shishupal son of Gitam Singh u/s 319 Cr.P.C. application No.13 KH. Is fit to be admitted.?7. The role ascribed to the appellant is also not correctly reflected as it as been stated that he fired upon them with an intention to kill them. This is not what was stated in the complaint nor is it part of the testimony recorded of PW-1. If we turn to the order of the High Court in revision, after extracting the legal principles what has been observed is that Section 319 Cr.P.C. is a power available to summon a person as an accused even if he is not named in the FIR or in the charge- sheet. 8. On hearing learned counsel for the parties, we are of the view that there is a non-appreciation of the legal principles by both the Courts below despite the same being referred to. The legal principle on this behalf has been enunciated in the judgment of this Court in Brijendra Singh and Others. v. State of Rajasthan - (2017) 7 SCC 706 following the Constitution Bench judgment in Hardeep Singh v. State of Punjab & Ors. - (2014) 3 SCC 92. It would suffice to reproduce para 13 as under:"13. In order to answer the question, some of the principles enunciated in Hardeep Singh case may be recapitulated: power under Section 319 CrPC can be exercised by the trial Court at any stage during the trial i.e. before the conclusion of trial, to summon any person as an accused and face the trial in the ongoing case, once the trial court finds that there is some ?evidence? against such a person on the basis of which evidence it can be gathered that he appears to be guilty of the offence. The ?evidence? herein means the material that is brought before the Court during trial. Insofar as the material/evidence collected by the IO at the stage of inquiry is concerned, it can be utilised for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 CrPC. No doubt, such evidence that has surfaced in examination in chief, without cross-examination of witnesses, can also be taken into consideration. However, since it is a discretionary power given to the court under Section 319 CrPC and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrant. The degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of whom charge- sheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity.?9. The controversy generated was not whether power could or could not be exercised under Section 319 of the Cr.P.C. but whether the exercise, which was required to be undertaken by the trial Court before exercising such power, had been completed or not. | 1[ds]6. A perusal of the order dated 02.09.2006 would show that what is recorded is that the prosecution has given an application under Section 319 of the Cr.P.C. This is admittedly not factually correct. The application was filed by the complainant aggrieved by the dropping of the name of the appellant from the array of accused on which orders have been passed. The trial Court has stated that the appellant was not summoned as an accused on the basis of the charge-sheet which did not name him as an accused.The role ascribed to the appellant is also not correctly reflected as it as been stated that he fired upon them with an intention to kill them. This is not what was stated in the complaint nor is it part of the testimony recorded of PW-1. If we turn to the order of the High Court in revision, after extracting the legal principles what has been observed is that Section 319 Cr.P.C. is a power available to summon a person as an accused even if he is not named in the FIR or in the charge- sheet.On hearing learned counsel for the parties, we are of the view that there is a non-appreciation of the legal principles by both the Courts below despite the same being referred to. The legal principle on this behalf has been enunciated in the judgment of this Court in Brijendra Singh and Others. v. State of Rajasthan - (2017) 7 SCC 706 following the Constitution Bench judgment in Hardeep Singh v. State of Punjab & Ors. - (2014) 3 SCC 92. It would suffice to reproduce para 13 asIn order to answer the question, some of the principles enunciated in Hardeep Singh case may be recapitulated: power under Section 319 CrPC can be exercised by the trial Court at any stage during the trial i.e. before the conclusion of trial, to summon any person as an accused and face the trial in the ongoing case, once the trial court finds that there is some ?evidence? against such a person on the basis of which evidence it can be gathered that he appears to be guilty of the offence. The ?evidence? herein means the material that is brought before the Court during trial. Insofar as the material/evidence collected by the IO at the stage of inquiry is concerned, it can be utilised for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 CrPC. No doubt, such evidence that has surfaced in examination in chief, without cross-examination of witnesses, can also be taken into consideration. However, since it is a discretionary power given to the court under Section 319 CrPC and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrant. The degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of whom charge- sheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity.The controversy generated was not whether power could or could not be exercised under Section 319 of the Cr.P.C. but whether the exercise, which was required to be undertaken by the trial Court before exercising such power, had been completed or not. | 1 | 993 | 648 | ### 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:
SANJAY KISHAN KAUL, J. 1. Leave granted. 2. An FIR dated 04.09.2005 was registered in P.S. Khera Garh, District Agra, Uttar Pradesh in respect of Crime Case No.331/05 under Sections 147,148,149,307,302,323,504 and 506 of IPC. 3. The police carried out investigation and filed a charge- sheet. While the trial was on, during the examination-in-chief of PW-1, an order has been passed exercising power under Section 319 of the Cr.P.C. to summon the appellant as an accused. This order was sought to be assailed in a revision petition which was dismissed. Thus, the appellant has filed the present appeal. 4. A perusal of the FIR would show that the complainant is PW-1. The role ascribed to the appellant was that he came with a country made revolver at the site but the deceased Satyapal was fired upon by two other accused which caused the death. This is what has been stated in the examination-in-chief of PW-1. 5. It is pointed out by learned counsel that PW-1 was the only person who named the appellant while other eye witnesses including the injured witness did not do so. 6. A perusal of the order dated 02.09.2006 would show that what is recorded is that the prosecution has given an application under Section 319 of the Cr.P.C. This is admittedly not factually correct. The application was filed by the complainant aggrieved by the dropping of the name of the appellant from the array of accused on which orders have been passed. The trial Court has stated that the appellant was not summoned as an accused on the basis of the charge-sheet which did not name him as an accused. The order for summoning has been passed on the following rationale:?In the present case PW-1, has stated under the evidence given on oath that shishupal son of gitam singh was also present alongwith other accused he was carrying a country made revolver. He had fired upon them with an intention to kill form which persons from their side have suffered injury. Them of this accused was mentioned in the written complaint of the complainant and the FIR. But the police had not sent chargesheet against him. There are sufficient grounds available for summoning the accused shishupal son of Gitam Singh u/s 319 Cr.P.C. application No.13 KH. Is fit to be admitted.?7. The role ascribed to the appellant is also not correctly reflected as it as been stated that he fired upon them with an intention to kill them. This is not what was stated in the complaint nor is it part of the testimony recorded of PW-1. If we turn to the order of the High Court in revision, after extracting the legal principles what has been observed is that Section 319 Cr.P.C. is a power available to summon a person as an accused even if he is not named in the FIR or in the charge- sheet. 8. On hearing learned counsel for the parties, we are of the view that there is a non-appreciation of the legal principles by both the Courts below despite the same being referred to. The legal principle on this behalf has been enunciated in the judgment of this Court in Brijendra Singh and Others. v. State of Rajasthan - (2017) 7 SCC 706 following the Constitution Bench judgment in Hardeep Singh v. State of Punjab & Ors. - (2014) 3 SCC 92. It would suffice to reproduce para 13 as under:"13. In order to answer the question, some of the principles enunciated in Hardeep Singh case may be recapitulated: power under Section 319 CrPC can be exercised by the trial Court at any stage during the trial i.e. before the conclusion of trial, to summon any person as an accused and face the trial in the ongoing case, once the trial court finds that there is some ?evidence? against such a person on the basis of which evidence it can be gathered that he appears to be guilty of the offence. The ?evidence? herein means the material that is brought before the Court during trial. Insofar as the material/evidence collected by the IO at the stage of inquiry is concerned, it can be utilised for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 CrPC. No doubt, such evidence that has surfaced in examination in chief, without cross-examination of witnesses, can also be taken into consideration. However, since it is a discretionary power given to the court under Section 319 CrPC and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrant. The degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of whom charge- sheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity.?9. The controversy generated was not whether power could or could not be exercised under Section 319 of the Cr.P.C. but whether the exercise, which was required to be undertaken by the trial Court before exercising such power, had been completed or not.
### Response:
1
### Explanation:
6. A perusal of the order dated 02.09.2006 would show that what is recorded is that the prosecution has given an application under Section 319 of the Cr.P.C. This is admittedly not factually correct. The application was filed by the complainant aggrieved by the dropping of the name of the appellant from the array of accused on which orders have been passed. The trial Court has stated that the appellant was not summoned as an accused on the basis of the charge-sheet which did not name him as an accused.The role ascribed to the appellant is also not correctly reflected as it as been stated that he fired upon them with an intention to kill them. This is not what was stated in the complaint nor is it part of the testimony recorded of PW-1. If we turn to the order of the High Court in revision, after extracting the legal principles what has been observed is that Section 319 Cr.P.C. is a power available to summon a person as an accused even if he is not named in the FIR or in the charge- sheet.On hearing learned counsel for the parties, we are of the view that there is a non-appreciation of the legal principles by both the Courts below despite the same being referred to. The legal principle on this behalf has been enunciated in the judgment of this Court in Brijendra Singh and Others. v. State of Rajasthan - (2017) 7 SCC 706 following the Constitution Bench judgment in Hardeep Singh v. State of Punjab & Ors. - (2014) 3 SCC 92. It would suffice to reproduce para 13 asIn order to answer the question, some of the principles enunciated in Hardeep Singh case may be recapitulated: power under Section 319 CrPC can be exercised by the trial Court at any stage during the trial i.e. before the conclusion of trial, to summon any person as an accused and face the trial in the ongoing case, once the trial court finds that there is some ?evidence? against such a person on the basis of which evidence it can be gathered that he appears to be guilty of the offence. The ?evidence? herein means the material that is brought before the Court during trial. Insofar as the material/evidence collected by the IO at the stage of inquiry is concerned, it can be utilised for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 CrPC. No doubt, such evidence that has surfaced in examination in chief, without cross-examination of witnesses, can also be taken into consideration. However, since it is a discretionary power given to the court under Section 319 CrPC and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrant. The degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of whom charge- sheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity.The controversy generated was not whether power could or could not be exercised under Section 319 of the Cr.P.C. but whether the exercise, which was required to be undertaken by the trial Court before exercising such power, had been completed or not.
|
SWARNALATHA & ORS Vs. KALAVATHY & ORS | namely Mannar Reddiar was one of the attestors to the Will. In fact the reading of Exhibit P-1 (Will) goes to show that the daughter Kalavathy was given in marriage to a bank employee way back in the year 1970. According to Exhibit P--1 (Will), the daughter was provided 50 sovereigns of gold jewellery at the time of the wedding. She was also given various amounts at different points of time totaling to Rs.75,000/-. It was further claimed in Exhibit P--1 (Will) that the mother gave Rs.25,000/- to the daughter Kalavathy for the purpose of purchase of two plots of land at Ambattur, in the outskirts of Chennai. The Will also mentions that the daughters daughter was given in marriage to the second son V.M. Sivakumar. This is the reason why the second son V.M. Sivakumar joined hands with the daughter Kalavathy. Exhibit P--1 also makes a mention about the sum of Rs.40,000/- paid towards the discharge of a debt incurred by Kalavathys husband (son--in--law). 18. Unfortunately, the High Court completely overlooked all the above aspects and proceeded to invent reasons to justify a conclusion that seems to have preceded the line of reasoning. 19. Similarly Exhibit P--2 (Will of the father) contains recitals to the effect that the daughters daughter was given in marriage to the second son V.M. Sivakumar and that Adhilakshmiammal had left behind a Will dated 30.01.1995. 20. Once it is found that the father Mannar Reddiar not only attested the mothers Will (Exhibit P--1) and once it is found that in his own Will (Exhibit P--2), which is a registered Will, the father had made a mention about the mothers Will, all the suspicious circumstances sought to be projected would automatically fall to the ground. 21. When it was not even the case of the respondents that the testators were not in a sound and disposing state of mind, the High Court found fault with the appellants for not disclosing the nature of the ailments suffered by them. The exclusion of one of the natural heirs from the bequest, cannot by itself be a ground to hold that there are suspicious circumstances. The reasons given in Exhibit P--1 are more than convincing to show that the exclusion of the daughter has happened in a very natural way. If Exhibit P--1 (Will) had been fabricated on blank papers containing the signatures of the mother, there would have been no occasion for the father to make a mention in his own Will (Exhibit P--2) about the execution of the Will by the mother. 22. We do not know how the High Court held the delay on the part of the appellants in seeking probate of the Wills to be a suspicious circumstance. Exhibit P--1 was executed on 30.01.1995 and the testatrix died on 14.08.1995. The father was alive till 08.08.2000. Therefore, there was no necessity for the appellants to seek probate of the said Will. After the death of Mannar Reddiar on 08.08.2000, the appellants obviously had no support, due to the fact that V.M. Chandrasekaran (husband of appellant No.1 and father of appellant Nos.2 and 3) had pre-deceased the father Mannar Reddiar. It is recorded in the impugned Judgment that V.M. Chandrasekaran died in October--1999. 23. The occasion for the appellants to seek probate of the Will arose only when the respondents filed the suit for partition in O.S. No.387 of 2005. Therefore, there was actually no delay on the part of the appellants in seeking probate. 24. The High Court made a mountain out of a molehill, by reading too much into the lack of knowledge on the part of appellant No.1 about the time of registration of Exhibit P--2 (Will) and the minor contradictions between her statement as PW--1 and the statements of PWs 4 and 5. The adverse inference sought to be drawn by the High Court about the failure of the testator Mannar Reddiar to ensure the presence of the daughter and the second daughter-inlaw at the time of execution of Exhibit P--2, has no basis in law. 25. The law relating to suspicious circumstances surrounding the execution of a Will is already well-settled and it needs no reiteration. It is enough if we make a reference to one of the recent decisions of this Court in Kavita Kanwar vs. Mrs. Pamela Mehta and Ors. AIR 2020 SC 544 where this Court referred to almost all previous decisions right from H. Venkatachala Iyengar vs. B.N. Thimmajamma AIR 1959 SC 443 . But cases in which a suspicion is created are essentially those where either the signature of the testator is disputed or the mental capacity of the testator is questioned. This can be seen from the fact that almost all previous decisions of this Court referred to in Kavita Kanwar (supra) list out circumstances, which in the context of the lack of sound and disposing state of mind of the testator, became suspicious circumstances. In the matter of appreciating the genuineness of execution of a Will, there is no place for the Court to see whether the distribution made by the testator was fair and equitable to all of his children. The Court does not apply Article 14 to dispositions under a Will. 26. It is not difficult for an objective mind to understand the reasons behind the daughter and the second son of the testators coming together. Under both the Wills Exhibit P--1 and P--2, the properties have been equally distributed between the two sons. The first son V.M. Chandrasekaran is now no more. Admittedly Kalavathys daughter has been given in marriage to V.M. Sivakumar (second son of testator). Therefore, if the bequest under the two Wills go, V.M. Sivakumars family may eventually receive 2/3rd share of the properties, which is more beneficial for V.M. Sivakumar than getting half share under the Wills. Unfortunately, the High Court completely overlooked this aspect and started analyzing the Wills with suspicion. Therefore, the impugned Judgment of the High Court is incapable of being sustained. | 1[ds]17. But each one of the above circumstances, neither individually nor collectively creates a suspicion. The signature of the mother Adhilakshmiammal in Exhibit P--1 (Will) is not disputed. It was executed on 30.01.1995 and her husband namely Mannar Reddiar was one of the attestors to the Will. In fact the reading of Exhibit P-1 (Will) goes to show that the daughter Kalavathy was given in marriage to a bank employee way back in the year 1970. According to Exhibit P--1 (Will), the daughter was provided 50 sovereigns of gold jewellery at the time of the wedding. She was also given various amounts at different points of time totaling to Rs.75,000/-. It was further claimed in Exhibit P--1 (Will) that the mother gave Rs.25,000/- to the daughter Kalavathy for the purpose of purchase of two plots of land at Ambattur, in the outskirts of Chennai. The Will also mentions that the daughters daughter was given in marriage to the second son V.M. Sivakumar. This is the reason why the second son V.M. Sivakumar joined hands with the daughter Kalavathy. Exhibit P--1 also makes a mention about the sum of Rs.40,000/- paid towards the discharge of a debt incurred by Kalavathys husband (son--in--law).18. Unfortunately, the High Court completely overlooked all the above aspects and proceeded to invent reasons to justify a conclusion that seems to have preceded the line of reasoning.19. Similarly Exhibit P--2 (Will of the father) contains recitals to the effect that the daughters daughter was given in marriage to the second son V.M. Sivakumar and that Adhilakshmiammal had left behind a Will dated 30.01.1995.20. Once it is found that the father Mannar Reddiar not only attested the mothers Will (Exhibit P--1) and once it is found that in his own Will (Exhibit P--2), which is a registered Will, the father had made a mention about the mothers Will, all the suspicious circumstances sought to be projected would automatically fall to the ground.21. When it was not even the case of the respondents that the testators were not in a sound and disposing state of mind, the High Court found fault with the appellants for not disclosing the nature of the ailments suffered by them. The exclusion of one of the natural heirs from the bequest, cannot by itself be a ground to hold that there are suspicious circumstances. The reasons given in Exhibit P--1 are more than convincing to show that the exclusion of the daughter has happened in a very natural way. If Exhibit P--1 (Will) had been fabricated on blank papers containing the signatures of the mother, there would have been no occasion for the father to make a mention in his own Will (Exhibit P--2) about the execution of the Will by the mother.22. We do not know how the High Court held the delay on the part of the appellants in seeking probate of the Wills to be a suspicious circumstance. Exhibit P--1 was executed on 30.01.1995 and the testatrix died on 14.08.1995. The father was alive till 08.08.2000. Therefore, there was no necessity for the appellants to seek probate of the said Will. After the death of Mannar Reddiar on 08.08.2000, the appellants obviously had no support, due to the fact that V.M. Chandrasekaran (husband of appellant No.1 and father of appellant Nos.2 and 3) had pre-deceased the father Mannar Reddiar. It is recorded in the impugned Judgment that V.M. Chandrasekaran died in October--1999.23. The occasion for the appellants to seek probate of the Will arose only when the respondents filed the suit for partition in O.S. No.387 of 2005. Therefore, there was actually no delay on the part of the appellants in seeking probate.24. The High Court made a mountain out of a molehill, by reading too much into the lack of knowledge on the part of appellant No.1 about the time of registration of Exhibit P--2 (Will) and the minor contradictions between her statement as PW--1 and the statements of PWs 4 and 5. The adverse inference sought to be drawn by the High Court about the failure of the testator Mannar Reddiar to ensure the presence of the daughter and the second daughter-inlaw at the time of execution of Exhibit P--2, has no basis in law.25. The law relating to suspicious circumstances surrounding the execution of a Will is already well-settled and it needs no reiteration. It is enough if we make a reference to one of the recent decisions of this Court in Kavita Kanwar vs. Mrs. Pamela Mehta and Ors. AIR 2020 SC 544 where this Court referred to almost all previous decisions right from H. Venkatachala Iyengar vs. B.N. Thimmajamma AIR 1959 SC 443 . But cases in which a suspicion is created are essentially those where either the signature of the testator is disputed or the mental capacity of the testator is questioned. This can be seen from the fact that almost all previous decisions of this Court referred to in Kavita Kanwar (supra) list out circumstances, which in the context of the lack of sound and disposing state of mind of the testator, became suspicious circumstances. In the matter of appreciating the genuineness of execution of a Will, there is no place for the Court to see whether the distribution made by the testator was fair and equitable to all of his children. The Court does not apply Article 14 to dispositions under a Will.26. It is not difficult for an objective mind to understand the reasons behind the daughter and the second son of the testators coming together. Under both the Wills Exhibit P--1 and P--2, the properties have been equally distributed between the two sons. The first son V.M. Chandrasekaran is now no more. Admittedly Kalavathys daughter has been given in marriage to V.M. Sivakumar (second son of testator). Therefore, if the bequest under the two Wills go, V.M. Sivakumars family may eventually receive 2/3rd share of the properties, which is more beneficial for V.M. Sivakumar than getting half share under the Wills. Unfortunately, the High Court completely overlooked this aspect and started analyzing the Wills with suspicion. Therefore, the impugned Judgment of the High Court is incapable of being sustained. | 1 | 2,795 | 1,176 | ### 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:
namely Mannar Reddiar was one of the attestors to the Will. In fact the reading of Exhibit P-1 (Will) goes to show that the daughter Kalavathy was given in marriage to a bank employee way back in the year 1970. According to Exhibit P--1 (Will), the daughter was provided 50 sovereigns of gold jewellery at the time of the wedding. She was also given various amounts at different points of time totaling to Rs.75,000/-. It was further claimed in Exhibit P--1 (Will) that the mother gave Rs.25,000/- to the daughter Kalavathy for the purpose of purchase of two plots of land at Ambattur, in the outskirts of Chennai. The Will also mentions that the daughters daughter was given in marriage to the second son V.M. Sivakumar. This is the reason why the second son V.M. Sivakumar joined hands with the daughter Kalavathy. Exhibit P--1 also makes a mention about the sum of Rs.40,000/- paid towards the discharge of a debt incurred by Kalavathys husband (son--in--law). 18. Unfortunately, the High Court completely overlooked all the above aspects and proceeded to invent reasons to justify a conclusion that seems to have preceded the line of reasoning. 19. Similarly Exhibit P--2 (Will of the father) contains recitals to the effect that the daughters daughter was given in marriage to the second son V.M. Sivakumar and that Adhilakshmiammal had left behind a Will dated 30.01.1995. 20. Once it is found that the father Mannar Reddiar not only attested the mothers Will (Exhibit P--1) and once it is found that in his own Will (Exhibit P--2), which is a registered Will, the father had made a mention about the mothers Will, all the suspicious circumstances sought to be projected would automatically fall to the ground. 21. When it was not even the case of the respondents that the testators were not in a sound and disposing state of mind, the High Court found fault with the appellants for not disclosing the nature of the ailments suffered by them. The exclusion of one of the natural heirs from the bequest, cannot by itself be a ground to hold that there are suspicious circumstances. The reasons given in Exhibit P--1 are more than convincing to show that the exclusion of the daughter has happened in a very natural way. If Exhibit P--1 (Will) had been fabricated on blank papers containing the signatures of the mother, there would have been no occasion for the father to make a mention in his own Will (Exhibit P--2) about the execution of the Will by the mother. 22. We do not know how the High Court held the delay on the part of the appellants in seeking probate of the Wills to be a suspicious circumstance. Exhibit P--1 was executed on 30.01.1995 and the testatrix died on 14.08.1995. The father was alive till 08.08.2000. Therefore, there was no necessity for the appellants to seek probate of the said Will. After the death of Mannar Reddiar on 08.08.2000, the appellants obviously had no support, due to the fact that V.M. Chandrasekaran (husband of appellant No.1 and father of appellant Nos.2 and 3) had pre-deceased the father Mannar Reddiar. It is recorded in the impugned Judgment that V.M. Chandrasekaran died in October--1999. 23. The occasion for the appellants to seek probate of the Will arose only when the respondents filed the suit for partition in O.S. No.387 of 2005. Therefore, there was actually no delay on the part of the appellants in seeking probate. 24. The High Court made a mountain out of a molehill, by reading too much into the lack of knowledge on the part of appellant No.1 about the time of registration of Exhibit P--2 (Will) and the minor contradictions between her statement as PW--1 and the statements of PWs 4 and 5. The adverse inference sought to be drawn by the High Court about the failure of the testator Mannar Reddiar to ensure the presence of the daughter and the second daughter-inlaw at the time of execution of Exhibit P--2, has no basis in law. 25. The law relating to suspicious circumstances surrounding the execution of a Will is already well-settled and it needs no reiteration. It is enough if we make a reference to one of the recent decisions of this Court in Kavita Kanwar vs. Mrs. Pamela Mehta and Ors. AIR 2020 SC 544 where this Court referred to almost all previous decisions right from H. Venkatachala Iyengar vs. B.N. Thimmajamma AIR 1959 SC 443 . But cases in which a suspicion is created are essentially those where either the signature of the testator is disputed or the mental capacity of the testator is questioned. This can be seen from the fact that almost all previous decisions of this Court referred to in Kavita Kanwar (supra) list out circumstances, which in the context of the lack of sound and disposing state of mind of the testator, became suspicious circumstances. In the matter of appreciating the genuineness of execution of a Will, there is no place for the Court to see whether the distribution made by the testator was fair and equitable to all of his children. The Court does not apply Article 14 to dispositions under a Will. 26. It is not difficult for an objective mind to understand the reasons behind the daughter and the second son of the testators coming together. Under both the Wills Exhibit P--1 and P--2, the properties have been equally distributed between the two sons. The first son V.M. Chandrasekaran is now no more. Admittedly Kalavathys daughter has been given in marriage to V.M. Sivakumar (second son of testator). Therefore, if the bequest under the two Wills go, V.M. Sivakumars family may eventually receive 2/3rd share of the properties, which is more beneficial for V.M. Sivakumar than getting half share under the Wills. Unfortunately, the High Court completely overlooked this aspect and started analyzing the Wills with suspicion. Therefore, the impugned Judgment of the High Court is incapable of being sustained.
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1
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disputed. It was executed on 30.01.1995 and her husband namely Mannar Reddiar was one of the attestors to the Will. In fact the reading of Exhibit P-1 (Will) goes to show that the daughter Kalavathy was given in marriage to a bank employee way back in the year 1970. According to Exhibit P--1 (Will), the daughter was provided 50 sovereigns of gold jewellery at the time of the wedding. She was also given various amounts at different points of time totaling to Rs.75,000/-. It was further claimed in Exhibit P--1 (Will) that the mother gave Rs.25,000/- to the daughter Kalavathy for the purpose of purchase of two plots of land at Ambattur, in the outskirts of Chennai. The Will also mentions that the daughters daughter was given in marriage to the second son V.M. Sivakumar. This is the reason why the second son V.M. Sivakumar joined hands with the daughter Kalavathy. Exhibit P--1 also makes a mention about the sum of Rs.40,000/- paid towards the discharge of a debt incurred by Kalavathys husband (son--in--law).18. Unfortunately, the High Court completely overlooked all the above aspects and proceeded to invent reasons to justify a conclusion that seems to have preceded the line of reasoning.19. Similarly Exhibit P--2 (Will of the father) contains recitals to the effect that the daughters daughter was given in marriage to the second son V.M. Sivakumar and that Adhilakshmiammal had left behind a Will dated 30.01.1995.20. Once it is found that the father Mannar Reddiar not only attested the mothers Will (Exhibit P--1) and once it is found that in his own Will (Exhibit P--2), which is a registered Will, the father had made a mention about the mothers Will, all the suspicious circumstances sought to be projected would automatically fall to the ground.21. When it was not even the case of the respondents that the testators were not in a sound and disposing state of mind, the High Court found fault with the appellants for not disclosing the nature of the ailments suffered by them. The exclusion of one of the natural heirs from the bequest, cannot by itself be a ground to hold that there are suspicious circumstances. The reasons given in Exhibit P--1 are more than convincing to show that the exclusion of the daughter has happened in a very natural way. If Exhibit P--1 (Will) had been fabricated on blank papers containing the signatures of the mother, there would have been no occasion for the father to make a mention in his own Will (Exhibit P--2) about the execution of the Will by the mother.22. We do not know how the High Court held the delay on the part of the appellants in seeking probate of the Wills to be a suspicious circumstance. Exhibit P--1 was executed on 30.01.1995 and the testatrix died on 14.08.1995. The father was alive till 08.08.2000. Therefore, there was no necessity for the appellants to seek probate of the said Will. After the death of Mannar Reddiar on 08.08.2000, the appellants obviously had no support, due to the fact that V.M. Chandrasekaran (husband of appellant No.1 and father of appellant Nos.2 and 3) had pre-deceased the father Mannar Reddiar. It is recorded in the impugned Judgment that V.M. Chandrasekaran died in October--1999.23. The occasion for the appellants to seek probate of the Will arose only when the respondents filed the suit for partition in O.S. No.387 of 2005. Therefore, there was actually no delay on the part of the appellants in seeking probate.24. The High Court made a mountain out of a molehill, by reading too much into the lack of knowledge on the part of appellant No.1 about the time of registration of Exhibit P--2 (Will) and the minor contradictions between her statement as PW--1 and the statements of PWs 4 and 5. The adverse inference sought to be drawn by the High Court about the failure of the testator Mannar Reddiar to ensure the presence of the daughter and the second daughter-inlaw at the time of execution of Exhibit P--2, has no basis in law.25. The law relating to suspicious circumstances surrounding the execution of a Will is already well-settled and it needs no reiteration. It is enough if we make a reference to one of the recent decisions of this Court in Kavita Kanwar vs. Mrs. Pamela Mehta and Ors. AIR 2020 SC 544 where this Court referred to almost all previous decisions right from H. Venkatachala Iyengar vs. B.N. Thimmajamma AIR 1959 SC 443 . But cases in which a suspicion is created are essentially those where either the signature of the testator is disputed or the mental capacity of the testator is questioned. This can be seen from the fact that almost all previous decisions of this Court referred to in Kavita Kanwar (supra) list out circumstances, which in the context of the lack of sound and disposing state of mind of the testator, became suspicious circumstances. In the matter of appreciating the genuineness of execution of a Will, there is no place for the Court to see whether the distribution made by the testator was fair and equitable to all of his children. The Court does not apply Article 14 to dispositions under a Will.26. It is not difficult for an objective mind to understand the reasons behind the daughter and the second son of the testators coming together. Under both the Wills Exhibit P--1 and P--2, the properties have been equally distributed between the two sons. The first son V.M. Chandrasekaran is now no more. Admittedly Kalavathys daughter has been given in marriage to V.M. Sivakumar (second son of testator). Therefore, if the bequest under the two Wills go, V.M. Sivakumars family may eventually receive 2/3rd share of the properties, which is more beneficial for V.M. Sivakumar than getting half share under the Wills. Unfortunately, the High Court completely overlooked this aspect and started analyzing the Wills with suspicion. Therefore, the impugned Judgment of the High Court is incapable of being sustained.
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M/S.L.K.Trust Vs. Edc Ltd. | record does not indicate that the appellant had filed any proceedings either to obtain specific performance of the agreement to sell entered into between it and the respondent No. 1 nor the appellant had initiated any proceedings for obtaining possession of the property in question. If in fact the contract had been concluded between the parties as is claimed by the appellant the appellant would not have failed to obtain possession of the property after execution of registered deed in its favour. These facts, thus, indicate that there was no concluded contract between the appellant and the Respondent No.1. 27. This Court cannot ignore the fact that on September 27, 2006 the respondent No. 3 had deposited cheques of Rs.9.25 crores in favour of the first respondent and Rs.5.90 crores in favour of the respondent No. 2. The bonafide of the first respondent can be seen from the fact that these cheques were not immediately encashed, and as on January 2007, the total amount lying with the first respondent and the respondent No. 2 paid by the respondent No.3 was Rs.24.15 crores as against the redemption amount of Rs.18.40 crores. As the respondent No.3 had made payment to redeem the property which was accepted by respondent No.1 and as respondent No.1 had agreed to permit the respondent No.3 to redeem the property in question, a prayer was made to permit respondent No.3 to withdraw Writ Petition No. 601 of 2006 which can neither be regarded as arbitrary nor as illegal nor contrary to the decision of this Court dated August 24, 2006 rendered in Special Leave Petition (Civil) 4957 of 2006. Similarly, as the grievance of the respondent No.3 did not survive, the modification of the order of status quo granted earlier at the instance of the respondent No. 3 who was petitioner in the writ petition, also cannot be held to be bad in law because if the status quo order had not been modified the respondent No.1 would not have been in a position to accept the offer of respondent No.3 to permit it to redeem the property which would have been in derogation of right of the respondent No. 3 to redeem the property as recognized by Section 60 of the Transfer Property Act. 28. On over all view of the matter, this Court finds that there is no substance in the challenge to the two orders dated April 7, 2008 modifying the order of status quo and order dated April 9, 2008 permitting the Respondent No.3 to withdraw Writ Petition No. 601 of 2006 warranting inference of this Court in appeals arising by grant of special leave filed under Article 136 of the Constitution. Therefore, the two appeals which are directed against orders dated April 7, 2008 and April 9, 2008 respectively have no substance and are liable to be dismissed.29. The Court, further, finds that the appellant-trust has filed Contempt Petition under Article 129 of the Constitution read with Order XLVII of Supreme Court Rules 1966 and Rule-3(C) and Section 2(b) read with Section 12 of the Contempt of Courts Act, 1971 against the respondents for willfully disobeying and acting against the order passed by this Court on August 24, 2006 in Special Leave Petition (Civil) No.4957 of 2006. The contention raised by the appellant is that the respondents have deliberately and willfully violated the order passed by this Court on August 24, 2006 by passing resolutions dated February 20, 2008 and April 8, 2008 passed by the Board of Directors of the respondent No.1 and, therefore, appropriate action should be initiated against the respondents. On behalf of the respondent Nos. 3 and 4 it was contended that the Contempt Petition is not maintainable in as much as this Court had not passed any direction or order that was needed to be carried out by the respondents and, therefore, the question of violation of order of this Court does not arise at all. It was pointed out by the learned counsel for the respondent Nos. 3 and 4 that some observations made by this court here and there while dismissing the Special Leave Petition cannot be construed as direction of the Court at all. It was explained by the learned counsel for the respondent Nos. 3 and 4 that this Court had neither modified the order of the High Court dated February 22, 2006 nor had given any direction to any of the parties to carry out its order or the order of the High Court but the Court had simply upheld the dismissal order passed by the High Court by dismissing Special Leave Petition. What was pointed out by the learned counsel for the respondent Nos. 3 and 4 was that contempt under the Contempt of Courts Act necessarily presupposes a clear and willful violation of a direction or order of the court or an undertaking given to a court and as those elements are missing so far as the facts of the present case are concerned the Contempt Petition filed by the Petitioner should be dismissed.30. On consideration of rival submissions advanced at the Bar this Court is of the view that as was rightly pointed out by the learned counsel for the respondents the exercise of right of redemption in accordance with Section 60 of the Transfer of Property Act was neither a subject matter of Writ Petition No. 19 of 2006 nor it was subject matter of Special Leave Petition (Civil) No.4957 of 2006 which is clear from the enumeration of the main points by the High Court in Writ Petition No. 19 of 2006, which was whether there was a concluded contract. This Court had never prohibited the respondent Nos. 3 and 4 from exercising right of redemption nor restrained the respondent No.1 from considering the proposal of the Respondent No.3 to permit it to redeem the disputed property and had in fact expressed strongly that the respondent No. 1 should take that action which is in its best interest. | 1[ds]28. On over all view of the matter, this Court finds that there is no substance in the challenge to the two orders dated April 7, 2008 modifying the order of status quo and order dated April 9, 2008 permitting the Respondent No.3 to withdraw Writ Petition No. 601 of 2006 warranting inference of this Court in appeals arising by grant of special leave filed under Article 136 of the Constitution. Therefore, the two appeals which are directed against orders dated April 7, 2008 and April 9, 2008 respectively have no substance and are liable to be dismissed.29. The Court, further, finds that the appellant-trust has filed Contempt Petition under Article 129 of the Constitution read with Order XLVII of Supreme Court Rules 1966 and Rule-3(C) and Section 2(b) read with Section 12 of the Contempt of Courts Act, 1971 against the respondents for willfully disobeying and acting against the order passed by this Court on August 24, 2006 in Special Leave Petition (Civil) No.4957 of 2006. The contention raised by the appellant is that the respondents have deliberately and willfully violated the order passed by this Court on August 24, 2006 by passing resolutions dated February 20, 2008 and April 8, 2008 passed by the Board of Directors of the respondent No.1 and, therefore, appropriate action should be initiated against the respondents. On behalf of the respondent Nos. 3 and 4 it was contended that the Contempt Petition is not maintainable in as much as this Court had not passed any direction or order that was needed to be carried out by the respondents and, therefore, the question of violation of order of this Court does not arise at all. It was pointed out by the learned counsel for the respondent Nos. 3 and 4 that some observations made by this court here and there while dismissing the Special Leave Petition cannot be construed as direction of the Court at all. It was explained by the learned counsel for the respondent Nos. 3 and 4 that this Court had neither modified the order of the High Court dated February 22, 2006 nor had given any direction to any of the parties to carry out its order or the order of the High Court but the Court had simply upheld the dismissal order passed by the High Court by dismissing Special Leave Petition. What was pointed out by the learned counsel for the respondent Nos. 3 and 4 was that contempt under the Contempt of Courts Act necessarily presupposes a clear and willful violation of a direction or order of the court or an undertaking given to a court and as those elements are missing so far as the facts of the present case are concerned the Contempt Petition filed by the Petitioner should be dismissed.30. On consideration of rival submissions advanced at the Bar this Court is of the view that as was rightly pointed out by the learned counsel for the respondents the exercise of right of redemption in accordance with Section 60 of the Transfer of Property Act was neither a subject matter of Writ Petition No. 19 of 2006 nor it was subject matter of Special Leave Petition (Civil) No.4957 of 2006 which is clear from the enumeration of the main points by the High Court in Writ Petition No. 19 of 2006, which was whether there was a concluded contract. This Court had never prohibited the respondent Nos. 3 and 4 from exercising right of redemption nor restrained the respondent No.1 from considering the proposal of the Respondent No.3 to permit it to redeem the disputed property and had in fact expressed strongly that the respondent No. 1 should take that action which is in its best interest. | 1 | 11,573 | 677 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
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record does not indicate that the appellant had filed any proceedings either to obtain specific performance of the agreement to sell entered into between it and the respondent No. 1 nor the appellant had initiated any proceedings for obtaining possession of the property in question. If in fact the contract had been concluded between the parties as is claimed by the appellant the appellant would not have failed to obtain possession of the property after execution of registered deed in its favour. These facts, thus, indicate that there was no concluded contract between the appellant and the Respondent No.1. 27. This Court cannot ignore the fact that on September 27, 2006 the respondent No. 3 had deposited cheques of Rs.9.25 crores in favour of the first respondent and Rs.5.90 crores in favour of the respondent No. 2. The bonafide of the first respondent can be seen from the fact that these cheques were not immediately encashed, and as on January 2007, the total amount lying with the first respondent and the respondent No. 2 paid by the respondent No.3 was Rs.24.15 crores as against the redemption amount of Rs.18.40 crores. As the respondent No.3 had made payment to redeem the property which was accepted by respondent No.1 and as respondent No.1 had agreed to permit the respondent No.3 to redeem the property in question, a prayer was made to permit respondent No.3 to withdraw Writ Petition No. 601 of 2006 which can neither be regarded as arbitrary nor as illegal nor contrary to the decision of this Court dated August 24, 2006 rendered in Special Leave Petition (Civil) 4957 of 2006. Similarly, as the grievance of the respondent No.3 did not survive, the modification of the order of status quo granted earlier at the instance of the respondent No. 3 who was petitioner in the writ petition, also cannot be held to be bad in law because if the status quo order had not been modified the respondent No.1 would not have been in a position to accept the offer of respondent No.3 to permit it to redeem the property which would have been in derogation of right of the respondent No. 3 to redeem the property as recognized by Section 60 of the Transfer Property Act. 28. On over all view of the matter, this Court finds that there is no substance in the challenge to the two orders dated April 7, 2008 modifying the order of status quo and order dated April 9, 2008 permitting the Respondent No.3 to withdraw Writ Petition No. 601 of 2006 warranting inference of this Court in appeals arising by grant of special leave filed under Article 136 of the Constitution. Therefore, the two appeals which are directed against orders dated April 7, 2008 and April 9, 2008 respectively have no substance and are liable to be dismissed.29. The Court, further, finds that the appellant-trust has filed Contempt Petition under Article 129 of the Constitution read with Order XLVII of Supreme Court Rules 1966 and Rule-3(C) and Section 2(b) read with Section 12 of the Contempt of Courts Act, 1971 against the respondents for willfully disobeying and acting against the order passed by this Court on August 24, 2006 in Special Leave Petition (Civil) No.4957 of 2006. The contention raised by the appellant is that the respondents have deliberately and willfully violated the order passed by this Court on August 24, 2006 by passing resolutions dated February 20, 2008 and April 8, 2008 passed by the Board of Directors of the respondent No.1 and, therefore, appropriate action should be initiated against the respondents. On behalf of the respondent Nos. 3 and 4 it was contended that the Contempt Petition is not maintainable in as much as this Court had not passed any direction or order that was needed to be carried out by the respondents and, therefore, the question of violation of order of this Court does not arise at all. It was pointed out by the learned counsel for the respondent Nos. 3 and 4 that some observations made by this court here and there while dismissing the Special Leave Petition cannot be construed as direction of the Court at all. It was explained by the learned counsel for the respondent Nos. 3 and 4 that this Court had neither modified the order of the High Court dated February 22, 2006 nor had given any direction to any of the parties to carry out its order or the order of the High Court but the Court had simply upheld the dismissal order passed by the High Court by dismissing Special Leave Petition. What was pointed out by the learned counsel for the respondent Nos. 3 and 4 was that contempt under the Contempt of Courts Act necessarily presupposes a clear and willful violation of a direction or order of the court or an undertaking given to a court and as those elements are missing so far as the facts of the present case are concerned the Contempt Petition filed by the Petitioner should be dismissed.30. On consideration of rival submissions advanced at the Bar this Court is of the view that as was rightly pointed out by the learned counsel for the respondents the exercise of right of redemption in accordance with Section 60 of the Transfer of Property Act was neither a subject matter of Writ Petition No. 19 of 2006 nor it was subject matter of Special Leave Petition (Civil) No.4957 of 2006 which is clear from the enumeration of the main points by the High Court in Writ Petition No. 19 of 2006, which was whether there was a concluded contract. This Court had never prohibited the respondent Nos. 3 and 4 from exercising right of redemption nor restrained the respondent No.1 from considering the proposal of the Respondent No.3 to permit it to redeem the disputed property and had in fact expressed strongly that the respondent No. 1 should take that action which is in its best interest.
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28. On over all view of the matter, this Court finds that there is no substance in the challenge to the two orders dated April 7, 2008 modifying the order of status quo and order dated April 9, 2008 permitting the Respondent No.3 to withdraw Writ Petition No. 601 of 2006 warranting inference of this Court in appeals arising by grant of special leave filed under Article 136 of the Constitution. Therefore, the two appeals which are directed against orders dated April 7, 2008 and April 9, 2008 respectively have no substance and are liable to be dismissed.29. The Court, further, finds that the appellant-trust has filed Contempt Petition under Article 129 of the Constitution read with Order XLVII of Supreme Court Rules 1966 and Rule-3(C) and Section 2(b) read with Section 12 of the Contempt of Courts Act, 1971 against the respondents for willfully disobeying and acting against the order passed by this Court on August 24, 2006 in Special Leave Petition (Civil) No.4957 of 2006. The contention raised by the appellant is that the respondents have deliberately and willfully violated the order passed by this Court on August 24, 2006 by passing resolutions dated February 20, 2008 and April 8, 2008 passed by the Board of Directors of the respondent No.1 and, therefore, appropriate action should be initiated against the respondents. On behalf of the respondent Nos. 3 and 4 it was contended that the Contempt Petition is not maintainable in as much as this Court had not passed any direction or order that was needed to be carried out by the respondents and, therefore, the question of violation of order of this Court does not arise at all. It was pointed out by the learned counsel for the respondent Nos. 3 and 4 that some observations made by this court here and there while dismissing the Special Leave Petition cannot be construed as direction of the Court at all. It was explained by the learned counsel for the respondent Nos. 3 and 4 that this Court had neither modified the order of the High Court dated February 22, 2006 nor had given any direction to any of the parties to carry out its order or the order of the High Court but the Court had simply upheld the dismissal order passed by the High Court by dismissing Special Leave Petition. What was pointed out by the learned counsel for the respondent Nos. 3 and 4 was that contempt under the Contempt of Courts Act necessarily presupposes a clear and willful violation of a direction or order of the court or an undertaking given to a court and as those elements are missing so far as the facts of the present case are concerned the Contempt Petition filed by the Petitioner should be dismissed.30. On consideration of rival submissions advanced at the Bar this Court is of the view that as was rightly pointed out by the learned counsel for the respondents the exercise of right of redemption in accordance with Section 60 of the Transfer of Property Act was neither a subject matter of Writ Petition No. 19 of 2006 nor it was subject matter of Special Leave Petition (Civil) No.4957 of 2006 which is clear from the enumeration of the main points by the High Court in Writ Petition No. 19 of 2006, which was whether there was a concluded contract. This Court had never prohibited the respondent Nos. 3 and 4 from exercising right of redemption nor restrained the respondent No.1 from considering the proposal of the Respondent No.3 to permit it to redeem the disputed property and had in fact expressed strongly that the respondent No. 1 should take that action which is in its best interest.
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COMMON CAUSE Vs. UNION OF INDIA | court and it was made clear by the Attorney General for India that the said Committee by majority has decided to authorise Government of India to appoint an interim Director while passing a resolution and the counsel for the petitioner was told by the Court of such resolution having been passed by the Committee. On that, he had conceded that the ground that Committee under Section 4A has not authorised appointment does not survive. Following is the operative part of the resolution dated 9 th /10 th January, 2019:“(i) Shri Alok Kumar Verma be transferred from the post of Director, CBI and given a suitable assignment for the residual period of his present term ending on 31.01.2019.(ii) the Central Government may post a suitable officer to look after the duties of the Director, CBI till the appointment of a new Director, CBI.”14. It is apparent from the decision of the committee under Section 4A that the Government was authorised to post a suitable officer as interim Director due to the vacancy caused by shifting of Mr. Alok Verma. Thus, the submission raised in the petition on behalf of the petitioners that the HPSC has not authorised the appointment of interim Director is totally misconceived and petitioners have failed to verify the aforesaid facts and the petition has been filed in undue haste without verifying the fact whether the appointment has been authorised by the Committee for appointment of Director constituted under section 4A of the DSPE Act.15. Unfortunately after what transpired in the court on 1.2.2019 certain tweets were made by learned counsel appearing on behalf of Common Cause and another with respect to which the Attorney General has filed contempt petition as well as the Union of India. It was tweeted that the Minutes of the said meeting had been forged, the Court was misled and there had been no authorisation by the Committee constituted under section 4A about appointment of interim Director. As to the tweets made, the contempt petitions have been filed in which notice has been issued. Effect of the tweets during the pendency of the writ petition is the subject matter of the contempt petition and the same is to be considered in Contempt Petition (Crl.) Nos. 1 and 2 of 2019 as such we refrain to comment in the petition on the submission as to tweets.16. It is clear from the resolution passed by the Committee on 9/10 th January, 2019 that the appointment of interim Director had been authorised by the Committee under section 4A. Thus, it cannot be said to be unauthorised and illegal in any manner whatsoever. The submission raised that the Selection Committee had not authorised the appointment of interim Director is fallacious on the face of the record and is misconceived in view of the said resolution. We need not go into the larger question whether in such exigency it was necessary to have such a resolution for the appointment of Interim Director by Selection Committee as that does not arise for decision in this case as Committee has passed the aforesaid resolution.17. With respect to RTI application that was filed by petitioner No.2, it had been replied on 19.12.2018 as follows:“Please refer to your online RTI application bearing registration No. DOP&T/R/2018/56336 dated 5.12.2018 information under RTI Act, 2005.2.It is informed that as per this Department’s Executive Order No.230/14/99-DSPE dated 8.7.2004 issued in pursuance of Hon’ble Supreme Court’s directions dated 20.4.2004 given in CA No. 4303/2002, all the IPS officers of the senior most 4 batches in service on the date of retirement of the (incumbent) Director, CBI are needed to be considered for selection to the post of Director, CBI. It is further informed that as per Section 4(A)(1) of the DSPE Act, 1946, as amended by the Lokpal and Lokayuktas Act, 2013 (No.1 of 2014) (copy enclosed), the Central Government appoints the Director, CBI on the recommendation of the Committee consisting of members as prescribed for the purpose under the ibid section.3.As per Section 19 of RTI Act, 2005, an appeal against the above decision would lie before the 1 st Appellate Authority Ms. Ashwini Dattatraya Thakre, Deputy Secretary (AVD¬II), North Block, New Delhi within 30 days of receipt of this letter.”18. Petitioner had filed yet another application on 25.12.2018 in which it was prayed that what was the process being adopted by the Government to shortlist of the candidates, a copy of shortlisting prepared be disclosed, following reply was sent on 2.1.2019 :“Please refer to your online RTI application bearing registration No. DOP&T/R/2018/56394 & DOP&T/R/2018/56397 dated 25.12.2018 information under RTI Act, 2005. 2.It is informed that as per this Department’s Executive Order No.230/14/99-DSPE dated 8.7.2004 issued in pursuance of Hon’ble Supreme Court’s directions dated 20.4.2004 given in CA No. 4303/2002, amongst all the IPS officers of the senior most 4 batches in service on the date of retirement of the (incumbent) Director, CBI are needed to be considered for filling up the post of new Director, CBI. The process of selection of new Director in CBI has not attained finality.3.As per Section 19 of RTI Act, 2005, an appeal against the above decision would lie before the 1 st Appellate Authority Ms. Ashwini Dattatraya Thakre, Deputy Secretary (AVD¬II), North Block, New Delhi within 30 days of receipt of this letter.”19. Petitioner No.2 was advised by the aforesaid communication in case she was aggrieved, to take recourse to appeal before the appellate authority under the RTI Act. It appears that the petitioner has not filed any appeal/s. In view of letters, we find no ground to interfere in the matter on the said ground too.20. On the one hand the petitioner asked on 10.1.2019 for an appointment of regular Director and that meeting be convened at the earliest to appoint regular Director. We find that since the regular Director has been appointed the main prayer of the petitioner stands satisfied and there is absolutely no justification to continue with this writ petition in the aforesaid circumstances. In | 0[ds]13. After several recusals by different Benches, ultimately, the case was taken up on 1.2.2019 by this Court on which date the arguments were heard at some length.It is apparent from the decision of the committee under Section 4A that the Government was authorised to post a suitable officer as interim Director due to the vacancy caused by shifting of Mr. Alok Verma. Thus, the submission raised in the petition on behalf of the petitioners that the HPSC has not authorised the appointment of interim Director is totally misconceived and petitioners have failed to verify the aforesaid facts and the petition has been filed in undue haste without verifying the fact whether the appointment has been authorised by theCommittee for appointment of Directorconstituted under section 4A of the DSPE Act.15. Unfortunately after what transpired in the court on 1.2.2019 certain tweets were made by learned counsel appearing on behalf of Common Cause and another with respect to which the Attorney General has filed contempt petition as well as the Union of India. It was tweeted that the Minutes of the said meeting had been forged, the Court was misled and there had been no authorisation by the Committee constituted under section 4A about appointment of interim Director. As to the tweets made, the contempt petitions have been filed in which notice has been issued. Effect of the tweets during the pendency of the writ petition is the subject matter of the contempt petition and the same is to be considered in Contempt Petition (Crl.) Nos. 1 and 2 of 2019 as such we refrain to comment in the petition on the submission as to tweets.16. It is clear from the resolution passed by the Committee on 9/10 th January, 2019 that the appointment of interim Director had been authorised by the Committee under section 4A. Thus, it cannot be said to be unauthorised and illegal in any manner whatsoever. The submission raised that the Selection Committee had not authorised the appointment of interim Director is fallacious on the face of the record and is misconceived in view of the said resolution. We need not go into the larger question whether in such exigency it was necessary to have such a resolution for the appointment of Interim Director by Selection Committee as that does not arise for decision in this case as Committee has passed the aforesaid resolution.Petitioner No.2 was advised by the aforesaid communication in case she was aggrieved, to take recourse to appeal before the appellate authority under the RTI Act. It appears that the petitioner has not filed any appeal/s. In view of letters, we find no ground to interfere in the matter on the said ground too.20. On the one hand the petitioner asked on 10.1.2019 for an appointment of regular Director and that meeting be convened at the earliest to appoint regular Director. We find that since the regular Director has been appointed the main prayer of the petitioner stands satisfied and there is absolutely no justification to continue with this writ petition in the aforesaid circumstances. | 0 | 3,359 | 544 | ### Instruction:
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court and it was made clear by the Attorney General for India that the said Committee by majority has decided to authorise Government of India to appoint an interim Director while passing a resolution and the counsel for the petitioner was told by the Court of such resolution having been passed by the Committee. On that, he had conceded that the ground that Committee under Section 4A has not authorised appointment does not survive. Following is the operative part of the resolution dated 9 th /10 th January, 2019:“(i) Shri Alok Kumar Verma be transferred from the post of Director, CBI and given a suitable assignment for the residual period of his present term ending on 31.01.2019.(ii) the Central Government may post a suitable officer to look after the duties of the Director, CBI till the appointment of a new Director, CBI.”14. It is apparent from the decision of the committee under Section 4A that the Government was authorised to post a suitable officer as interim Director due to the vacancy caused by shifting of Mr. Alok Verma. Thus, the submission raised in the petition on behalf of the petitioners that the HPSC has not authorised the appointment of interim Director is totally misconceived and petitioners have failed to verify the aforesaid facts and the petition has been filed in undue haste without verifying the fact whether the appointment has been authorised by the Committee for appointment of Director constituted under section 4A of the DSPE Act.15. Unfortunately after what transpired in the court on 1.2.2019 certain tweets were made by learned counsel appearing on behalf of Common Cause and another with respect to which the Attorney General has filed contempt petition as well as the Union of India. It was tweeted that the Minutes of the said meeting had been forged, the Court was misled and there had been no authorisation by the Committee constituted under section 4A about appointment of interim Director. As to the tweets made, the contempt petitions have been filed in which notice has been issued. Effect of the tweets during the pendency of the writ petition is the subject matter of the contempt petition and the same is to be considered in Contempt Petition (Crl.) Nos. 1 and 2 of 2019 as such we refrain to comment in the petition on the submission as to tweets.16. It is clear from the resolution passed by the Committee on 9/10 th January, 2019 that the appointment of interim Director had been authorised by the Committee under section 4A. Thus, it cannot be said to be unauthorised and illegal in any manner whatsoever. The submission raised that the Selection Committee had not authorised the appointment of interim Director is fallacious on the face of the record and is misconceived in view of the said resolution. We need not go into the larger question whether in such exigency it was necessary to have such a resolution for the appointment of Interim Director by Selection Committee as that does not arise for decision in this case as Committee has passed the aforesaid resolution.17. With respect to RTI application that was filed by petitioner No.2, it had been replied on 19.12.2018 as follows:“Please refer to your online RTI application bearing registration No. DOP&T/R/2018/56336 dated 5.12.2018 information under RTI Act, 2005.2.It is informed that as per this Department’s Executive Order No.230/14/99-DSPE dated 8.7.2004 issued in pursuance of Hon’ble Supreme Court’s directions dated 20.4.2004 given in CA No. 4303/2002, all the IPS officers of the senior most 4 batches in service on the date of retirement of the (incumbent) Director, CBI are needed to be considered for selection to the post of Director, CBI. It is further informed that as per Section 4(A)(1) of the DSPE Act, 1946, as amended by the Lokpal and Lokayuktas Act, 2013 (No.1 of 2014) (copy enclosed), the Central Government appoints the Director, CBI on the recommendation of the Committee consisting of members as prescribed for the purpose under the ibid section.3.As per Section 19 of RTI Act, 2005, an appeal against the above decision would lie before the 1 st Appellate Authority Ms. Ashwini Dattatraya Thakre, Deputy Secretary (AVD¬II), North Block, New Delhi within 30 days of receipt of this letter.”18. Petitioner had filed yet another application on 25.12.2018 in which it was prayed that what was the process being adopted by the Government to shortlist of the candidates, a copy of shortlisting prepared be disclosed, following reply was sent on 2.1.2019 :“Please refer to your online RTI application bearing registration No. DOP&T/R/2018/56394 & DOP&T/R/2018/56397 dated 25.12.2018 information under RTI Act, 2005. 2.It is informed that as per this Department’s Executive Order No.230/14/99-DSPE dated 8.7.2004 issued in pursuance of Hon’ble Supreme Court’s directions dated 20.4.2004 given in CA No. 4303/2002, amongst all the IPS officers of the senior most 4 batches in service on the date of retirement of the (incumbent) Director, CBI are needed to be considered for filling up the post of new Director, CBI. The process of selection of new Director in CBI has not attained finality.3.As per Section 19 of RTI Act, 2005, an appeal against the above decision would lie before the 1 st Appellate Authority Ms. Ashwini Dattatraya Thakre, Deputy Secretary (AVD¬II), North Block, New Delhi within 30 days of receipt of this letter.”19. Petitioner No.2 was advised by the aforesaid communication in case she was aggrieved, to take recourse to appeal before the appellate authority under the RTI Act. It appears that the petitioner has not filed any appeal/s. In view of letters, we find no ground to interfere in the matter on the said ground too.20. On the one hand the petitioner asked on 10.1.2019 for an appointment of regular Director and that meeting be convened at the earliest to appoint regular Director. We find that since the regular Director has been appointed the main prayer of the petitioner stands satisfied and there is absolutely no justification to continue with this writ petition in the aforesaid circumstances. In
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13. After several recusals by different Benches, ultimately, the case was taken up on 1.2.2019 by this Court on which date the arguments were heard at some length.It is apparent from the decision of the committee under Section 4A that the Government was authorised to post a suitable officer as interim Director due to the vacancy caused by shifting of Mr. Alok Verma. Thus, the submission raised in the petition on behalf of the petitioners that the HPSC has not authorised the appointment of interim Director is totally misconceived and petitioners have failed to verify the aforesaid facts and the petition has been filed in undue haste without verifying the fact whether the appointment has been authorised by theCommittee for appointment of Directorconstituted under section 4A of the DSPE Act.15. Unfortunately after what transpired in the court on 1.2.2019 certain tweets were made by learned counsel appearing on behalf of Common Cause and another with respect to which the Attorney General has filed contempt petition as well as the Union of India. It was tweeted that the Minutes of the said meeting had been forged, the Court was misled and there had been no authorisation by the Committee constituted under section 4A about appointment of interim Director. As to the tweets made, the contempt petitions have been filed in which notice has been issued. Effect of the tweets during the pendency of the writ petition is the subject matter of the contempt petition and the same is to be considered in Contempt Petition (Crl.) Nos. 1 and 2 of 2019 as such we refrain to comment in the petition on the submission as to tweets.16. It is clear from the resolution passed by the Committee on 9/10 th January, 2019 that the appointment of interim Director had been authorised by the Committee under section 4A. Thus, it cannot be said to be unauthorised and illegal in any manner whatsoever. The submission raised that the Selection Committee had not authorised the appointment of interim Director is fallacious on the face of the record and is misconceived in view of the said resolution. We need not go into the larger question whether in such exigency it was necessary to have such a resolution for the appointment of Interim Director by Selection Committee as that does not arise for decision in this case as Committee has passed the aforesaid resolution.Petitioner No.2 was advised by the aforesaid communication in case she was aggrieved, to take recourse to appeal before the appellate authority under the RTI Act. It appears that the petitioner has not filed any appeal/s. In view of letters, we find no ground to interfere in the matter on the said ground too.20. On the one hand the petitioner asked on 10.1.2019 for an appointment of regular Director and that meeting be convened at the earliest to appoint regular Director. We find that since the regular Director has been appointed the main prayer of the petitioner stands satisfied and there is absolutely no justification to continue with this writ petition in the aforesaid circumstances.
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District Council of United Basel Mission Church and Others Vs. Salvador Nicholas Mathias and Others | UBMC having permitted the District Church Council of South Kanara and Coorg to join the CSI, the validity of the resolution is beyond and challenge. Our attention has been drawn on behalf of the appellants to Rule 13(2) of the Constitution of UBMC (Ex. A-1) which deals with the functions of the Synod. Rule 13(2) reads as follows: "13(2) Its functions shall not be(a) to hear the reports of church and mission work of each District;(b) to suggest such measures of uniformity as may be necessary for the mission and church work in the three districts;(c) to give suggestions on problems pertaining to (1) the spiritual life and work of the different churches (2) the common evangelical activities of church and mission (3) the church union and (4) the administration of church property, funds, etc.;(d) to decide finally all questions of faith an order in the United Basel Mission Church of India, provided that all such decisions are arrived at by a majority of three-fourths of its total strength." 36. One of the functions of the Synod, as contained in clause (c)(3), is to give suggestions on problems pertaining to the Church Union. Another function is that contained in clause (d), upon which much reliance has been placed on behalf of the appellants. Clause (c)(3) and clause (d) read together confer authority on the Synod to grant permission for union keeping in view the question of faith and order. It is the case of the appellants that Synod has accorded its permission for the merger of UBMC of South Kanara and Coorg in the CSI. It is also their case that the resolution has already been implemented. The learned Judge of the High Court has taken much pains in coming to the conclusion that there has been no such implementation as alleged by the appellants. The question before us is not whether there has been any implementation of the resolution or not, but the question is whether the District Church Council had the authority to pass such a resolution. It is true that the District Church Council has only the power of amendment of the Constitution. No power has been conferred on it to pass a resolution relating to the union of UBMC of south Kanara and Coorg with the CSI. But the Synod is the highest authority and there can be no doubt that the Synod has the power to sanction merger of any unit of UBMC in the CSI. On June 24, 1968, the Synod of UBMC passed the following resolutionResolved unanimously that this Synod of the United Basel Mission Church permit the District Church Council of South Kanara and Coorg to join the Church of South India and that with effect from the date of affiliation this Synod cease to exist. 37. The learned Judge of the High Court has also noticed in paragraph 19 of his judgment that such a resolution of the Synod according permission for the union was passed on June 24, 1968. The resolution was passed unanimously by all the members present on that date. It is, however, faintly suggested by the learned counsel for the respondents that Synod was not in existence after the merger of Bombay, Karnataka and Malabar units of UBMC in the CSI. The suggestion is not correct, for the Synod that existed after the merger of the said two units in the CSI unanimously passed the resolution. As the Synod was a representative body of the units, it stood dissolved after passing the resolution sanctioning the merger of the only remaining unit of South Kanara and Coorg in the CSI. But, unit such a resolution was passed, it did exist as the highest authoritative and administrative body of UBMC. 38. Another ground challenging the validity of the resolution that has been urged on behalf of the respondents is that it violates the provision of Section 6 of the Religious Societies Act, 1880. Section 6 provides as follows: "6. Provision for dissolution of societies and adjustment of their affairs - Any number not less than three-fifths of the members of any such body as aforesaid may at a meeting convened for the purpose determine that such body shall be dissolved; and thereupon it shall be dissolved forthwith, or at the time when agreed upon; and all necessary steps shall be taken for the disposal and settlement of the property of such body, its claims and liabilities, according to the rules of such body applicable thereto, if any, and, if not, then as such body at such meeting may determineProvided that, in the event of any dispute arising among the members of such body, the adjustment of its affairs shall be referred to the principal court of original civil jurisdiction of the district in which the chief building of such body is situate; and the court shall make such order in the matter as it deems fit." 39. This challenges is misconceived. Section 6 deals with dissolution of societies and adjustment of their affairs. It has been already observed by us that there is no question of dissolution of UBMC of South Kanara and Coorg and the disposal and settlement of its property and claims and liabilities etc., consequent upon such dissolution as provided in Section 6 and, as such, the provision of Section 6 is not at all applicable to the facts and circumstances of the instant case. The contention made on behalf of the respondents is without any substance. 40. We are unable to agree with the finding of the learned Judge of the High Court that the impugned resolution violates the provision of Section 6 of the Religious Societies Act and in view of the fact that the Synod had unanimously accorded permission for the merger, the High Court was not justified in striking down the impugned resolution on the ground that it was beyond the authority of the District Church Council to pass such a resolution. In our opinion, the impugned resolution is legal and valid. | 1[ds]39. This challenges is misconceived. Section 6 deals with dissolution of societies and adjustment of their affairs. It has been already observed by us that there is no question of dissolution of UBMC of South Kanara and Coorg and the disposal and settlement of its property and claims and liabilities etc., consequent upon such dissolution as provided in Section 6 and, as such, the provision of Section 6 is not at all applicable to the facts and circumstances of the instant case. The contention made on behalf of the respondents is without anyWe are unable to agree with the finding of the learned Judge of the High Court that the impugned resolution violates the provision of Section 6 of the Religious Societies Act and in view of the fact that the Synod had unanimously accorded permission for the merger, the High Court was not justified in striking down the impugned resolution on the ground that it was beyond the authority of the District Church Council to pass such a resolution. In our opinion, the impugned resolution is legal andhas been already noticed that all the courts below including the High Court have concurrently come to the finding that the suit was of a civil nature within the meaning of Section 9 of theCode of Civil Procedure and, accordingly, it was maintainable. It is the case of the respondents that if the impugned resolution is implemented or, in other words, UBMC of South Kanara and Coorg is allowed to merge in CSI, the right of worship of the members of UBMC will be affected. It is now well established that the dispute as to right of worship is one of a civil nature within the meaning of Section 9 of theCode of Civil Procedure and a suit is maintainable for the vindication or determination of such a right.The question came up for consideration before this Court in Ugamsingh and Mishrimal v. Kesrimal [(1971) 2 SCR 836 : (1970) 3 SCC 831 : AIR 1971 SC 2540 ] where this Court observed as follows(SCC p. 837, paras clear therefore that a right to worship is a civil right, interference with which raises a dispute of a civil nature though as noticed earlier disputes which are in respect of rituals or ceremonies alone cannot be adjudicated by civil courts if they are not essentially connected with civil rights of an individual or a sect on behalf of whom a suit isIn this instant case also, there is a question as to whether the right of worship of the respondents will be affected in case of implementation of the impugned resolution. It must be made clear that maintainability of the suit will not permit a court to consider the soundness or propriety of any religious doctrine, faith or rituals. The scope of the enquiry in such a suit is limited to those aspects only that have direct bearing on the question of right of worship and with a view to considering such question the court may examine the doctrines, faith, rituals and practices for the purpose of ascertaining whether the same interfere with the right of worship of the aggrieved parties. In view of Section 9 of theCode of Civil Procedure, the enquiry of the court should be confined to the disputes of of a civil nature Any dispute which is not of a civil nature should be excluded fromHigh Court had devoted several pages relating to the origin, growth and other aspects of Episcopacy. It is not necessary for us to consider the origin or growth of Episcopacy and suffice it to say that Episcopacy means Church ruled by Bishops. UBMC is a Presbyterian Church and according to the respondents they do not believe in the concept of Episcopacy or apostolic succession which is associated with historic Episcopacy Rule 11 of the Constitution of CSI (Ex.provides, inter alia, that CSI accepts and will maintain the historic Episcopacy in a constitutional form. Rule 11 further provides that as Episcopacy has been accepted in the Church from early times, it may in this sense fitly be called historic and that it is needed for the shepherding and extension of the Church in South India and any additional interpretation, though held by individuals, are not binding on theIt is true UBMC is opposed to Episcopacy, but Episcopacy which has been adopted by the CSI, is not that historic Episcopacy, but historic Episcopacy in a constitutional form. In other words, the Bishop will be one of the officials of the Church under its Constitution performing certain duties and functions. The Bishops are appointed by election and there are provisions for the retirement of Bishops at the age of 65 years, and also for their removal. It is significant to notice that CSI believes that in all ordinations and consecrations the true ordainer and consecrator is God. From all this, the irresistible conclusion is that there is neither apostolic succession nor historical Episcopacy in CSI as contended on behalf of thesubmission in this regard, however, does not find support from the Constitution of UBMC. Under the heading "The Local Church", paragraph 4 of the Constitution of UBMC (Ex.rch workers are those either paid or honorary, ordained or lay, who are appointed by the church for a definite piece of work under the supervision of the church. It is the duty of the Pastors appointed to shepherd the churches to teach the Word of God, to administer the sacraments and to propagate the Gospel among those who have not yet come to the saving knowledge of Christ. Evangelists and lay preachers appointed to the charge of churches shall have no authority to administer the sacraments regularly, the District Church Board may give evangelists in pastoral charge authority to fulfil thisIt is apparent from paragraph 4 that evangelists and lay preachers have no authority to administer the sacraments. It is only in exceptional cases where it is impossible for the Pastor to administer the sacraments regularly, the District Church Board may give evangelists in pastoral charge authority to fulfil this duty. Thus, the universal priesthood which is said to be prevalent in UBMC, does not permit lay preachers and evangelists to administer theIt is true that in the CSI the Presbyters are ordained persons, but in UBMC they are unordained, as has been noticed by the learned Judge. But nothing turns out on that distinction. In UBMC the Pastor is an ordained minister and paragraph 4 (Ex.extracted above, provides that it is the duty of the Pastors to shepherd the churches to teach the Word of God, to administer the sacraments and to propagate the Gospel among those who have not yet come to the saving knowledge of Christ. While a Presbyter in the CSI is an ordained minister, in UBMC the ordained minister is a Pastor. In the CSI Presbyters have the authority to administer the sacraments and in UBMC the Pastors, who are ordained ministers, are authorised to administer the sacraments. There is, therefore, no distinction between a Pastor in UBMC and a Presbyter in the CSI. As the functions and duties of Presbyters and Pastors are the same and as both of them are ordained ministers, no exception can be taken by the respondents if the sacraments are administered by Pastors instead of by the Presbyters. No objection can also be taken to the Bishops administering the sacraments, for they do not merge from the apostolic succession which is the main characteristic of historical Episcopacy. If the respondents or any of the members of UBMC have or has any objection to the administering of sacraments by the Bishops, the sacraments can be administered by the Presbyters. It may be recalled that units of UBMC, namely, Malabar andunits have already joined the CSI. The CSI has accepted the form of worship which used to be followed in UBMC before the union of the two units with CSI, and such acceptance has been indicated in Rule 12 of Chapter II of the Constitution of CSI (Ex.Rule 12 specifically provides that no form of worship, which before the union have been in use in any of the united churches, have been forbidden in the CSI, nor shall any wonted forms be changed or new forms be introduced into the worship of any congregation without the agreement of the Pastor and the congregation arrived at in accordance with the conditions laid down in Chapter X of the Constitution. Thus, the CSI has already accepted the from of worship which the members of UBMC used to follow before the union of UBMC with the CSI. In view of this specific provision in Ex.it is difficult to accept the contention of the respondents that in case of merger or the implementation of the impugned resolution, the right of worship of the members of UBMC will beThe learned Judge of the High Court has referred to the manner of consecration and ordination in the CSI. Clause (iv) of Rule 11, Chapter II of Ex.inter alia, provides that every ordination of presbyters shall be performed by the laying on of hands by the Bishops and Presbyters, and all consecrations of Bishops shall be performed by the laying on of hands at least of three Bishops. Clause (iv) further provides that the CSI believes that "in all ordinations and consecrations the Ordainer and Consecrator is God who in response to the prayers of His Church, and through the words and acts of its representatives, commission and empowers for the office and work to which they are called the persons whom it has selected". It may be mentioned here that in UBMC the method of consecration and ordination is also the same as in the CSI. After an elaborate discussion, the learned Judge of the High Court has come to the conclusion that the laying or hands on the person to be ordained in the case of Episcopal Church, meaning thereby the CSI, has a spiritual significance of a transfer of Grace, whereas it has no such spiritual significance in UBMC, but is a symbol of conferment of authority only. After a person is appointed a Bishop or a Presbyter in the CSI or a Pastor in UBMC, he has to be ordained in almost the same manner as indicated above. We do not think it is within the purview of the enquiry in this litigation whether such ordination in the CSI has a spiritual significance of a transfer of Grade or whether it is only a symbol of conferment of authority, so far as UBMC is concerned. The mode or manner of ordination or the underlying object of such ordination has, in our opinion, nothing to do with the right of worship of theUBMC believes in Apostles Creed and Nicene Creed. Creeds are biographical sketches of Lord Jesus and they are the main items of all Church Services. Under its Constitution (Ex.the CSI also accepts the Apostles Creed and the Nicene Creed. The complainant of the respondents is that while the Shorter Catechism of Luther is placed on the same footing as the Apostles Creed and the Nicene Creed in UBMC, there is no reference to this in the Constitution (Ex.of the CSI. The Shorter Catechism of Luther is the instruction in the form of a series of questions and answers to be learned by every person before he is baptised. According to DW 1, Shorter Catechism of Luther is a statement of faith in the form of question and answers based upon Scriptures and Creeds intended to be used in instructing those who are to be baptised. That statement of DW 1 has not been challenged inon behalf of the respondents. Both UBMC and the CSI believe in Apostles Creed and Nicene Creed. IF Shorter Catechism of Luther, as stated by DW 1, consists of the Creeds in the form of questions and answers, we do not think that merely because there is no mention about Shorter Catechism in the Constitution of the CSI (Ex.it can be said that there is a difference in the faith and doctrine of the two Churches as held by the learned Judge. Moreover, this has nothing to do with the right of worship of the respondents and, accordingly, we do not think we are called upon to consider the effect ofof Shorter Catechism in Ex.question that came up for consideration by the Privy Council was whether in the Vaishnavite temples, situate in Trimulai and in Tripati, worship would be conducted exclusively in Tengalai order or the Vadagalais ritual would form part of the worship in these temples. The Privy Council came to the conclusion that Vadagalai community was not entitled to interfere with Tengalai ritual in the worship in those temples by insisting on reciting their own "manthram" simultaneously with the Tengalai "manthram". The suit instituted by the High Priest of the Tengalai community was decreed and the Vadagalai community was restrained from interfering with the Tengalai ritual in worship in those temples conducted by the appellant or his deputy by insisting on reciting their own "manthram" simultaneously with the TengalaiThe above decision of the Privy Council only lays down that if the right of worship is interfered with, the persons responsible for such interference can be restrained by an order of injunction. Even if Apocrypha is followed in the CSI that would not interfere with the right of worship of the respondents. We have already referred to Rule 12, Chapter II of the Constitution of the CSI (Ex.inter alia, providing that no forms of worship, which before the union have been in use in any of the united churches, shall be forbidden in the CSI, nor shall any wonted forms changed or new forms introduced into the worship of any congregation. There is, therefore, no cause for apprehension of the respondents that in case of merger, the Apocrypha will be imposed upon them which is repugnant to their religious faith. Moreover, in the liturgy of the CSI, the prayer from Apocrypha has been made optional which shows that there is no scope for the imposition of Apocrypha on the respondents in case of union of UBMC andappears that by a deed dated September 18, 1934 (Ex.the Evangelical Missionary Society in Basel (Basel Mission) declared itself as the trustee seized of or entitled to the lands and premises mentioned in the schedule to the said deed, holding the same in trust, inter alia, for the benefit of the members of the Church founded by the Society in the districts of South Kanara, Bombay, Karnataka and Malabar Known as UBMC in India. Further, it appears that the said Society appointed the UBMC Trust Association, a Company incorporated under the Indian Companies Act, 1913, the mergers of the trust properties, which belong to the Society and not to the UBMC Trust Association. Indeed, it has been noticed that in the plaint the respondents also admit that the properties belong to the Society and the Society holds the same as the trustee for the benefit of UBMC in India. In case of merger, there cannot be any diversion of the properties held in trust by the Society and managed by the UBMC Trust Association. The properties will remain the properties of the Society which holds them only for the purposes as mentioned in the said deed (Ex.In other words, even though there is merger, the properties or the income thereof will be utilised only for the benefit of the members of the UBMC of South Kanara andAlthough the UBMC Trust Association and the Society have been made parties in the suit as defendant 9 and 10 respectively, no relief has been claimed against either or them and there is no prayer for restraining them from diverting the property upon merger. It may be inferred from the absence or such a prayer that it was known to the respondents that there would be no diversion of the properties upon such merger. It has been rightly observed by the learned Munsif that as the respondents have not prayed for any relief against the Society and the UBMC Trust Association, they cannot urged that UBMC of South Kanara and Coorg will lose their rights in the properties held by the UBMC Trust Association, if a merger is permitted with the CSI. There is no material to show that the UBMC Trust Association has agreed to transfer the properties to the CSI in case of merger. There is no allegation in that regard in the plaint. In the circumstances, it is difficult to accept the contention of the respondents that in case of merger there will be diversion of the properties in the hands of the UBMC Trust Association to the CSI in breach ofhappened in Free Church Case [1904 AC 515] was that majority of the members of the Free Church of Scotland united and used the funds, of which they claimed to be the beneficial owners, for the use of the new united body. It was contended on behalf of the minority, who chose to be out of such union, that the user of such funds constituted breach of trust. The enquiry in that decision was consequently directed to the question whether there was a breach of trust or not and it was held by majority of the Law Lords that there was such a breach of trust. As there is no question of such breach of trust in the instant case, Free Church Case [1904 AC 515] has no manner of application, even though the High Court had made elaborate discussions over the case and came to the finding that certain observations made by Lord Halsbury, L. C. were applicable. It appears that in considering the question as to whether there was a breach of trust or not, Lord Halsbury made the following incidental observationsMy Lords, I am bound to say that after the most careful examination of the various documents submitted to us, I cannot trace the least evidence of either of them having abandoned their original views. It is not the case of two associated bodies of Christians in complete harmony as to their doctrine agreeing to share their funds, but two bodies each agreeing to keep their separate religious views where they differagreeing to make their formularies so elastic as to admit those who accept them according as their respective consciences willas I do, that there are differences of belief between them, these differences are not got rid of by their agreeing to say nothing about them, nor are these essentially diverse views avoided by selecting so elastic a formulary as can be accepted by people who differ and say that they claim their liberty to retain their differences while purporting to join in one Christianbecomes but a colourable union, and no trust fund devoted to one form of faith can be shared by another communion simply because they say in effect there are some parts of this or that confession which we will agree not to discuss, and we will make our formularies such that either of us can acceptan agreement would not, in my view, constitute a Church at all, or it would be, to use Sir William Smiths phrase, a Church without a religion. Its formularies would be designed not to be a confession of faith, but a concealment of such part of the faith as constituted an impediment to theThe observations extracted above have been strongly relied upon by the learned counsel for the respondents. According to the observations, no objection can be taken, if there be complete harmony as to their doctrine. As discussed above, there is little or no difference between the doctrines, faith and religious views of UBMC and the CSI. The objection of the respondents to historical Episcopacy has no solid foundation inasmuch as historical Episcopacy is not in existence in the true sense of the term in the CSI, and it is now in a constitutional form. In other words, as earlier pointed out, the Bishops are elected and apostolic succession which is associated with historical Episcopacy, is totally absent. Moreover, the observations in the Free Church case [1904 AC 515] have been made in connection with the question whether there was breach of trust or not. Therefore, the said observations cannot, in any event, be applicable to the facts of the present case which are different from those in the Free Church Case [1904 AC 515]. We accordingly, reject the contention of the respondents that following the observations made by Lord Halsbury, the impugned resolution should be struck down and the appellants should be restrained from effecting anyThus, the District Church Council is the final authority in all matters relating to the Church except those of faith and order and the disciplining of Pastors, Evangelist and Elders. Rule 14 of the Constitution confers power on the District Church Council relating to the amendment of the Constitution. Rule 14 provides asthat case, the members of unregistered Members Club owning certain properties passed a resolution by a majority vote that the Club should be dissolved. It was held by the Special Bench that in the absence of any provision in the rules of the Club laying down the circumstances and the manner in which the dissolution of the Club could take place, the dissolution of the Club would not be brought about by a majority vote. The Club could be dissolved only if all the members unanimously agreed to such dissolution. We are afraid, this decision has no manner of application to the facts of the instant case. Here we are not concerned with the question of dissolution of UBMC of South Kanara an Coorg, but with the question of merger. Dissolution contemplates liquidation of the Club and distribution of all assets among the members, but in the case of merger, there is no question of liquidation or distribution of assets. Moreover, we have already discussed above that the properties held in trust for UBMC will not be diverted to the use of the CSI, but will continue to be held in trust by the UBMC Trust Association for the benefit of the members of UBMC of South Kanara and Coorg, even if a merger takesOne of the functions of the Synod, as contained in clause (c)(3), is to give suggestions on problems pertaining to the Church Union. Another function is that contained in clause (d), upon which much reliance has been placed on behalf of the appellants. Clause (c)(3) and clause (d) read together confer authority on the Synod to grant permission for union keeping in view the question of faith and order. It is the case of the appellants that Synod has accorded its permission for the merger of UBMC of South Kanara and Coorg in the CSI. It is also their case that the resolution has already been implemented. The learned Judge of the High Court has taken much pains in coming to the conclusion that there has been no such implementation as alleged by the appellants. The question before us is not whether there has been any implementation of the resolution or not, but the question is whether the District Church Council had the authority to pass such a resolution. It is true that the District Church Council has only the power of amendment of the Constitution. No power has been conferred on it to pass a resolution relating to the union of UBMC of south Kanara and Coorg with the CSI. But the Synod is the highest authority and there can be no doubt that the Synod has the power to sanction merger of any unit of UBMC in the CSI. On June 24, 1968, the Synod of UBMC passed the following resolutionResolved unanimously that this Synod of the United Basel Mission Church permit the District Church Council of South Kanara and Coorg to join the Church of South India and that with effect from the date of affiliation this Synod cease toThe learned Judge of the High Court has also noticed in paragraph 19 of his judgment that such a resolution of the Synod according permission for the union was passed on June 24, 1968. The resolution was passed unanimously by all the members present on that date. It is, however, faintly suggested by the learned counsel for the respondents that Synod was not in existence after the merger of Bombay, Karnataka and Malabar units of UBMC in the CSI. The suggestion is not correct, for the Synod that existed after the merger of the said two units in the CSI unanimously passed the resolution. As the Synod was a representative body of the units, it stood dissolved after passing the resolution sanctioning the merger of the only remaining unit of South Kanara and Coorg in the CSI. But, unit such a resolution was passed, it did exist as the highest authoritative and administrative body ofProvision for dissolution of societies and adjustment of their affairsAny number not less thanof the members of any such body as aforesaid may at a meeting convened for the purpose determine that such body shall be dissolved; and thereupon it shall be dissolved forthwith, or at the time when agreed upon; and all necessary steps shall be taken for the disposal and settlement of the property of such body, its claims and liabilities, according to the rules of such body applicable thereto, if any, and, if not, then as such body at such meeting may determineProvided that, in the event of any dispute arising among the members of such body, the adjustment of its affairs shall be referred to the principal court of original civil jurisdiction of the district in which the chief building of such body is situate; and the court shall make such order in the matter as it deems fit | 1 | 8,205 | 4,653 | ### 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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UBMC having permitted the District Church Council of South Kanara and Coorg to join the CSI, the validity of the resolution is beyond and challenge. Our attention has been drawn on behalf of the appellants to Rule 13(2) of the Constitution of UBMC (Ex. A-1) which deals with the functions of the Synod. Rule 13(2) reads as follows: "13(2) Its functions shall not be(a) to hear the reports of church and mission work of each District;(b) to suggest such measures of uniformity as may be necessary for the mission and church work in the three districts;(c) to give suggestions on problems pertaining to (1) the spiritual life and work of the different churches (2) the common evangelical activities of church and mission (3) the church union and (4) the administration of church property, funds, etc.;(d) to decide finally all questions of faith an order in the United Basel Mission Church of India, provided that all such decisions are arrived at by a majority of three-fourths of its total strength." 36. One of the functions of the Synod, as contained in clause (c)(3), is to give suggestions on problems pertaining to the Church Union. Another function is that contained in clause (d), upon which much reliance has been placed on behalf of the appellants. Clause (c)(3) and clause (d) read together confer authority on the Synod to grant permission for union keeping in view the question of faith and order. It is the case of the appellants that Synod has accorded its permission for the merger of UBMC of South Kanara and Coorg in the CSI. It is also their case that the resolution has already been implemented. The learned Judge of the High Court has taken much pains in coming to the conclusion that there has been no such implementation as alleged by the appellants. The question before us is not whether there has been any implementation of the resolution or not, but the question is whether the District Church Council had the authority to pass such a resolution. It is true that the District Church Council has only the power of amendment of the Constitution. No power has been conferred on it to pass a resolution relating to the union of UBMC of south Kanara and Coorg with the CSI. But the Synod is the highest authority and there can be no doubt that the Synod has the power to sanction merger of any unit of UBMC in the CSI. On June 24, 1968, the Synod of UBMC passed the following resolutionResolved unanimously that this Synod of the United Basel Mission Church permit the District Church Council of South Kanara and Coorg to join the Church of South India and that with effect from the date of affiliation this Synod cease to exist. 37. The learned Judge of the High Court has also noticed in paragraph 19 of his judgment that such a resolution of the Synod according permission for the union was passed on June 24, 1968. The resolution was passed unanimously by all the members present on that date. It is, however, faintly suggested by the learned counsel for the respondents that Synod was not in existence after the merger of Bombay, Karnataka and Malabar units of UBMC in the CSI. The suggestion is not correct, for the Synod that existed after the merger of the said two units in the CSI unanimously passed the resolution. As the Synod was a representative body of the units, it stood dissolved after passing the resolution sanctioning the merger of the only remaining unit of South Kanara and Coorg in the CSI. But, unit such a resolution was passed, it did exist as the highest authoritative and administrative body of UBMC. 38. Another ground challenging the validity of the resolution that has been urged on behalf of the respondents is that it violates the provision of Section 6 of the Religious Societies Act, 1880. Section 6 provides as follows: "6. Provision for dissolution of societies and adjustment of their affairs - Any number not less than three-fifths of the members of any such body as aforesaid may at a meeting convened for the purpose determine that such body shall be dissolved; and thereupon it shall be dissolved forthwith, or at the time when agreed upon; and all necessary steps shall be taken for the disposal and settlement of the property of such body, its claims and liabilities, according to the rules of such body applicable thereto, if any, and, if not, then as such body at such meeting may determineProvided that, in the event of any dispute arising among the members of such body, the adjustment of its affairs shall be referred to the principal court of original civil jurisdiction of the district in which the chief building of such body is situate; and the court shall make such order in the matter as it deems fit." 39. This challenges is misconceived. Section 6 deals with dissolution of societies and adjustment of their affairs. It has been already observed by us that there is no question of dissolution of UBMC of South Kanara and Coorg and the disposal and settlement of its property and claims and liabilities etc., consequent upon such dissolution as provided in Section 6 and, as such, the provision of Section 6 is not at all applicable to the facts and circumstances of the instant case. The contention made on behalf of the respondents is without any substance. 40. We are unable to agree with the finding of the learned Judge of the High Court that the impugned resolution violates the provision of Section 6 of the Religious Societies Act and in view of the fact that the Synod had unanimously accorded permission for the merger, the High Court was not justified in striking down the impugned resolution on the ground that it was beyond the authority of the District Church Council to pass such a resolution. In our opinion, the impugned resolution is legal and valid.
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historical Episcopacy is not in existence in the true sense of the term in the CSI, and it is now in a constitutional form. In other words, as earlier pointed out, the Bishops are elected and apostolic succession which is associated with historical Episcopacy, is totally absent. Moreover, the observations in the Free Church case [1904 AC 515] have been made in connection with the question whether there was breach of trust or not. Therefore, the said observations cannot, in any event, be applicable to the facts of the present case which are different from those in the Free Church Case [1904 AC 515]. We accordingly, reject the contention of the respondents that following the observations made by Lord Halsbury, the impugned resolution should be struck down and the appellants should be restrained from effecting anyThus, the District Church Council is the final authority in all matters relating to the Church except those of faith and order and the disciplining of Pastors, Evangelist and Elders. Rule 14 of the Constitution confers power on the District Church Council relating to the amendment of the Constitution. Rule 14 provides asthat case, the members of unregistered Members Club owning certain properties passed a resolution by a majority vote that the Club should be dissolved. It was held by the Special Bench that in the absence of any provision in the rules of the Club laying down the circumstances and the manner in which the dissolution of the Club could take place, the dissolution of the Club would not be brought about by a majority vote. The Club could be dissolved only if all the members unanimously agreed to such dissolution. We are afraid, this decision has no manner of application to the facts of the instant case. Here we are not concerned with the question of dissolution of UBMC of South Kanara an Coorg, but with the question of merger. Dissolution contemplates liquidation of the Club and distribution of all assets among the members, but in the case of merger, there is no question of liquidation or distribution of assets. Moreover, we have already discussed above that the properties held in trust for UBMC will not be diverted to the use of the CSI, but will continue to be held in trust by the UBMC Trust Association for the benefit of the members of UBMC of South Kanara and Coorg, even if a merger takesOne of the functions of the Synod, as contained in clause (c)(3), is to give suggestions on problems pertaining to the Church Union. Another function is that contained in clause (d), upon which much reliance has been placed on behalf of the appellants. Clause (c)(3) and clause (d) read together confer authority on the Synod to grant permission for union keeping in view the question of faith and order. It is the case of the appellants that Synod has accorded its permission for the merger of UBMC of South Kanara and Coorg in the CSI. It is also their case that the resolution has already been implemented. The learned Judge of the High Court has taken much pains in coming to the conclusion that there has been no such implementation as alleged by the appellants. The question before us is not whether there has been any implementation of the resolution or not, but the question is whether the District Church Council had the authority to pass such a resolution. It is true that the District Church Council has only the power of amendment of the Constitution. No power has been conferred on it to pass a resolution relating to the union of UBMC of south Kanara and Coorg with the CSI. But the Synod is the highest authority and there can be no doubt that the Synod has the power to sanction merger of any unit of UBMC in the CSI. On June 24, 1968, the Synod of UBMC passed the following resolutionResolved unanimously that this Synod of the United Basel Mission Church permit the District Church Council of South Kanara and Coorg to join the Church of South India and that with effect from the date of affiliation this Synod cease toThe learned Judge of the High Court has also noticed in paragraph 19 of his judgment that such a resolution of the Synod according permission for the union was passed on June 24, 1968. The resolution was passed unanimously by all the members present on that date. It is, however, faintly suggested by the learned counsel for the respondents that Synod was not in existence after the merger of Bombay, Karnataka and Malabar units of UBMC in the CSI. The suggestion is not correct, for the Synod that existed after the merger of the said two units in the CSI unanimously passed the resolution. As the Synod was a representative body of the units, it stood dissolved after passing the resolution sanctioning the merger of the only remaining unit of South Kanara and Coorg in the CSI. But, unit such a resolution was passed, it did exist as the highest authoritative and administrative body ofProvision for dissolution of societies and adjustment of their affairsAny number not less thanof the members of any such body as aforesaid may at a meeting convened for the purpose determine that such body shall be dissolved; and thereupon it shall be dissolved forthwith, or at the time when agreed upon; and all necessary steps shall be taken for the disposal and settlement of the property of such body, its claims and liabilities, according to the rules of such body applicable thereto, if any, and, if not, then as such body at such meeting may determineProvided that, in the event of any dispute arising among the members of such body, the adjustment of its affairs shall be referred to the principal court of original civil jurisdiction of the district in which the chief building of such body is situate; and the court shall make such order in the matter as it deems fit
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M/S Daiichi Sankyo Company Vs. Jayaram Chigurupati | (formal or informal), directly or indirectly cooperate by acquiring or agreeing to acquire shares or voting rights in the target company or to acquire control over the target company. The word "comprises" in regulation 2(1)(e) is significant. It applies to regulation 2(1)(e)(2) as much as to regulation 2(1)(e)(1). A fortiori, a person deemed to be acting in concert with others is also a person acting in concert. In other words, persons who are deemed to be acting in concert must have the intention or the aim of acquisition of shares of a target company. It is the conduct of the parties that determines their identity. Whether a person is or is not acting in concert with the acquirer would depend upon the facts of each case. In order to hold that a person is acting in concert with the acquirer or with another person it must be established that the two share the common intention of acquisition of shares of some target company. For example, there is no hard and fast rule that every foreign institutional investor (FII) would share with the sub-account(s) the common objective of acquiring substantial stakes or control in some target company. Whether in a given case an FII and his sub-account(s) have a common objective of making investment in India to earn profits in unit holders or whether they have a common objective of acquiring substantial stakes or control in some target company would depend on the facts of each case. In the former case regulation 2(1)(e)(2)(v) would not apply whereas in the latter case the said sub-regulation would apply. The above illustration brings out the true purport of the expression "unless the contrary is established" which expression finds place in regulation 2(1)(e)(2).49. Something else that is of utmost importance is to understand that the deeming fiction under sub-regulation (2) can only operate prospectively and not retrospectively. That is to say the deeming provision would give rise to the presumption, as explained above, only from the date two or more persons come together in one of the specified relationships and not from any earlier date. Thus, in the case in hand, the deeming provision under sub-regulation (2) would give rise to the presumption that Daiichi and Ranbaxy were "persons acting in concert", provided of course the other conditions as explained above were also satisfied, only from October 20, 2008, the date on which Ranbaxy became a subsidiary of Daiichi and not before that. Hence, the purchase of Zenotech shares by Ranbaxy in January 2008 cannot be said to be by a "person acting in concert" with Daiichi.50. In light of the discussion made above, we are of the view, that the Appellate Tribunal was in error in proceeding on the basis that the material date for Ranbaxy and Daiichi to be acting in concert was the date of the public announcement for the Zenotech shares. The Tribunal Observed:"It is, thus, clear that on January 19, 2009, the material date on which the offer price for indirect acquisition is being worked out, Ranbaxy, being a subsidiary, was acting in concert with the Daiichi and that it (Ranbaxy) had paid Rs.160 per share to the shareholders of the target company during January 16 and January 28, 2008 when it acquired their shares under the Ranbaxy-Zenotech deal which period falls within twenty-six weeks prior to June 16, 2008."51. The Appellate Tribunals error is the result of mixing up the provisions of sub-regulations (12) and (4) of regulation 20. As explained earlier sub-regulation (12) came to be introduced in regulation 20 as a consequence of extension of time for making public announcement for the secondary and indirectly targeted company by insertion of sub-regulation (4) in regulation 14. Sub-regulation (12) of regulation 20 obliges the acquirer to work out the best value for the shares of the indirectly targeted company as obtaining on the date of the public announcement for the parent target company as well as on the date of the public announcement for the concerned indirectly targeted company and then to offer the shareholders the better of the two values. This is for the simple reason that the extension allowed for making the public announcement for the indirectly targeted company should not cause any prejudice to its shareholders. Sub-regulation (12) does not in any way affect sub-regulation (4) which remains unamended and it certainly does not alter the meaning of "person acting in concert" as used in that sub-section. 52. We are clearly of the view that for the application of regulation 20(4)(b) it is not relevant or material that the acquirer and the other person, who had acquired the shares of the target company on an earlier date, should be acting in concert at the time of the public announcement for the target company. What is material is that the other person was acting in concert with the acquirer at the time of purchase of shares of the target company.53. The true meaning of the idea of "persons acting in concert", as explained above will also clear all the doubts sought to be created by Mr. Divans illustration as noted above. In that illustration, persons A, B and C earlier purchased shares of company A separately and as strangers. Those purchases were, therefore naturally not by "persons acting in concert". But later on, all the three persons came together. They agreed to pool the benefits of their share with one another and to takeover company X, and they further agreed that they would vote together going forward. Thus the earlier purchases were brought within the concept subsequently by an express agreement between the three persons even though at the time of purchase the purchasers were not acting in concert. Hence, the earlier purchases too would fully attract the regulatory provisions of the Takeover Code.54. This is how we are able to follow the correct meaning of the expression "person acting in concert" as defined in regulation 2(e) and as used in regulation 20(4)(b) of the Takeover Code. | 1[ds]24. In order to clearly understand the ways in which the offer price is to be determined in the case of an indirect takeover of a company, as in the present case, it would be useful to examine regulation 20 from the rear end, that is to say starting from(12). This may sound a little strange but it is because(12) was introduced in the Takeover Code later, along with and as a consequence of insertion of(4) of regulation 14 to deal specifically with the offer pricing of the shares of a target company the acquisition of which takes place as a result of the direct takeover of some other company. We have seen above that the second Bhagwati Committee had, for good reasons, recommended for a separate and extended time period for making the public offer for a company that gets taken over following the acquisition of a target company. While making the recommendation, the Committee took care to see that the extended period for making the public offer does not act to the detriment of the ordinary shareholders of the company that gets taken over as a result of acquisition of a target company.ion (12) of regulation 20. Now, if we read regulation 20(12), it plainly says that the offer price for the shares of a company being taken over indirectly and as a consequence of the acquisition of the primary target, would be determined with reference to two dates, one when the public offer was made in regard to the "Parent company" (that is, the company, the acquisition of which resulted in the takeover of the secondary target company) and the other when the public offer is made for the secondary target company and the higher of the two will be taken as the offer price. In terms of(12) of regulation 20, therefore, the share price of Zenotech was required to be determined as on June 16, 2008 (the date of the public announcement for Ranbaxy, the parent company) and as on January 19, 2009 (the date of the public announcement for Zenotech, the indirectly target company). Regulation 20(12) tells us the dates with reference to which the offer price is to be determined but it does not tell us how the offer price is to be determined. For that it refers us back to(4) and (5). It needs to be stated here that(4) and (5) remained unchanged and did not undergo any amendments following the introduction of(4) in regulation 14 and(12) in regulation 20. This is to say that the provisions of(4) and (5) apply both to cases of direct and indirect takeover; they were not designed only for cases of indirect takeover.26.(5) of regulation 20 lays down the method for determining the offer price for a company the shares of which are infrequently traded. That is not the case with Zenotech; hence, we may leave out(5). This takes us to(4) of regulation 20.(4) prescribes three ways for determining the share price with the stipulation that the highest among them would be the offer price. Clause (a) of(4) refers to the negotiated price under the agreement. This would clearly apply to a case of direct takeover and shall have no application to a case of indirect takeover like the present one. Clause (b) is based on the price paid by the acquirer or persons acting in concert with him for acquisition of shares of the target company within the period of twenty six weeks prior the date of the public announcement and clause (c) is based on the price of the shares of the target company as quoted on the stock exchange.From the rival contentions it is clear that the real controversy among the parties is about the applicability of regulation 20(4)(b) to determine the offer price for Zenotech shares in the public announcement made by Daiichi. Regulation 20(4)(b) speaks of the price paid by the acquirer or persons acting in concert with him for acquisition of shares , if any, during the twenty six weeks period prior to date of public announcement. It does not speak of any agreement to acquire shares or of any voting rights or control over the target company but the actual price paid for acquisition of its shares. Here a question arises, to what point in time does the expression "person acting in concert" used in regulation 20(4)(b) refer? Should the person be acting in concert with the acquirer at the time of the public announcement or at the time of acquisition of shares of the target company? To make the matter more explicit, assuming that Daiichi and Ranbaxy together comprised "persons acting in concert" on the date Daiichi made the public announcement for Zenotech shares, was it sufficient that they were in that relationship on that date or for the application of regulation 20(4)(b) it was necessary that Daiichi and Ranbaxy should have been in that relationship when Ranbaxy had made acquisition of Zenotech shares. The Appellate Tribunal has of course proceeded on the basis that since Daiichi and Ranbaxy were "persons acting in concert" on the date of the public announcement made by Daiichi for Zenotech shares(b) of regulation 20(4) would be attracted regardless of the fact that the two were not in that relationship on the dates of purchase of Zenotech shares by Ranbaxy.41. On behalf of the respondents much argument was made to show that even before Ranbaxy became a subsidiary of Daiichi the two were covered by the definition of "persons acting in concert" on signing the SPSSA. Whether Ranbaxy became a persons acting in concert with Daiichi on signing the SPSSA or on becoming its subsidiary is one aspect of the matter but if the basis on which the Appellate Tribunal has proceeded is correct then it hardly matters if Ranbaxy was acting in concert with Daiichi on signing the SPSSA or on becoming its subsidiary, as long as it was in that relationship with Daiichi when Daiichi made the public announcement for Zenotech shares.42. We now proceed to examine the question whetherDaiichi and Ranbaxy came together in the relationship of "persons acting in concert" as claimed by the respondents and connected with it the larger question as to the stage when the relationship of "persons acting in concert" must be in existence for the applicability of regulation 20(4)(b) of the TakeoverCode. For this, we must first understand what is the true meaning of "persons acting in concert" as defined in regulation 2(e).43. To begin with, the concept of "person acting in concert" under regulation 2(e)(1) is based on a target company on the one side, and on the other side two or more persons coming together with the shared common objective or purpose of substantial acquisition of shares etc. of the target company. Unless there is a target company, substantial acquisition of whose shares etc. is the common objective or purpose of two or more persons coming together there can be no "persons acting in concert". For, dehors the target company the idea of "persons acting in concert" is as irrelevant as a cheat with no one as victim of his deception. Two or more persons may join hands together with the shared common objective or purpose of any kind but so long as the common object and purpose is not of substantial acquisition of shares of a target company they would not comprise "persons acting in concert".44. The other limb of the concept requires two or more persons joining together with the shared common objective and purpose of substantial acquisition of shares etc. of a certain target company. There can be no "persons acting in concert" unless there is a shared common objective or purpose between two or more persons of substantial acquisition of shares etc. of the target company. For, dehors the element of the shared common objective or purpose the idea of "person acting in concert" is as meaningless as criminal conspiracy without any agreement to commit a criminal offence. The idea of "persons acting in concert" is not about a fortuitous relationship coming into existence by accident or chance. The relationship can come into being only by design, by meeting of minds between two or more persons leading to the shared common objective or purpose of acquisition of substantial acquisition of shares etc. of the target company. It is another matter that the common objective or purpose may be in pursuance of an agreement or an understanding, formal or informal; the acquisition of shares etc. may be direct or indirect or the persons acting in concert may cooperate in actual acquisition of shares etc. or they may agree to cooperate in such acquisition. Nonetheless, the element of the shared common objective or purpose is the sin qua non for the relationship of "persons acting in concert" to come into being.45. The submission made on behalf of the respondents that on signing the SPSSA Ranbaxy became a person acting in concert with Daiichi overlooks this basic precondition and ingredient of the relationship. The consequential takeover of Zenotech and its acknowledgment are not same thing as the shared common objective or purpose of substantial acquisition of shares or voting rights or gaining control over Zenotech. As stated above, the relationship of "persons acting in concert" is not a fortuitous relationship. It can come into being only by design. Hence, unless it is shown that Daiichi and Ranbaxy entered into the SPSSA for the common objective or purpose of substantial acquisition of shares or voting rights or control over Zenotech they can not be said to have come in the relationship of "persons acting in concert". This is not even the case of the respondents. The inevitable conclusion, therefore, is that on signing the SPSSA Daiichi and Ranbaxy did not come within the relationship of persons acting in concert within the meaning of regulation 2(e)(1) of the Takeover Code.46. We may now proceed to the deeming provision as contained in sub clause (2) of regulation 2(e). Here, it would be better to restate the obvious that the deeming provision can not do away either with the target company or the common objective or purpose of substantial acquisition of shares etc. of the target company shared by two or more persons because to do so would be destructive of the very idea of "persons acting in concert" as defined in(1) of regulation 2(e). We, therefore, see no merit in the submission, as urged at one stage, on behalf of the respondents that subregulation (2) of regulation 2(e) containing the deeming clause should be seen as a `stand alone provision, independent of(1) of regulation 2(e). The deeming provision under(2) operates only within the larger framework of(1) of regulation2(1)(e)(2) defines "person acting in concert". It is a deeming provision. It has to be read in conjunction with regulation 2(1)(e)(1) which states that person acting in concert comprises of persons who in furtherance of a common objective or purpose of substantial acquisition of shares or voting rights or gaining control over the target company, pursuant to an agreement or understanding (formal or informal), directly or indirectly cooperate by acquiring or agreeing to acquire shares or voting rights in the target company or to acquire control over the target company. The word "comprises" in regulation 2(1)(e) is significant. It applies to regulation 2(1)(e)(2) as much as to regulation 2(1)(e)(1). A fortiori, a person deemed to be acting in concert with others is also a person acting in concert. In other words, persons who are deemed to be acting in concert must have the intention or the aim of acquisition of shares of a target company. It is the conduct of the parties that determines their identity. Whether a person is or is not acting in concert with the acquirer would depend upon the facts of each case. In order to hold that a person is acting in concert with the acquirer or with another person it must be established that the two share the common intention of acquisition of shares of some target company. For example, there is no hard and fast rule that every foreign institutional investor (FII) would share with thethe common objective of acquiring substantial stakes or control in some target company. Whether in a given case an FII and hishave a common objective of making investment in India to earn profits in unit holders or whether they have a common objective of acquiring substantial stakes or control in some target company would depend on the facts of each case. In the former case regulation 2(1)(e)(2)(v) would not apply whereas in the latter case the saidwould apply. The above illustration brings out the true purport of the expression "unless the contrary is established" which expression finds place in regulation 2(1)(e)(2).49. Something else that is of utmost importance is to understand that the deeming fiction under(2) can only operate prospectively and not retrospectively. That is to say the deeming provision would give rise to the presumption, as explained above, only from the date two or more persons come together in one of the specified relationships and not from any earlier date. Thus, in the case in hand, the deeming provision under(2) would give rise to the presumption that Daiichi and Ranbaxy were "persons acting in concert", provided of course the other conditions as explained above were also satisfied, only from October 20, 2008, the date on which Ranbaxy became a subsidiary of Daiichi and not before that. Hence, the purchase of Zenotech shares by Ranbaxy in January 2008 cannot be said to be by a "person acting in concert" with Daiichi.50. In light of the discussion made above, we are of the view, that the Appellate Tribunal was in error in proceeding on the basis that the material date for Ranbaxy and Daiichi to be acting in concert was the date of the public announcement for the Zenotech shares. The Tribunal Observed:"It is, thus, clear that on January 19, 2009, the material date on which the offer price for indirect acquisition is being worked out, Ranbaxy, being a subsidiary, was acting in concert with the Daiichi and that it (Ranbaxy) had paid Rs.160 per share to the shareholders of the target company during January 16 and January 28, 2008 when it acquired their shares under thedeal which period falls withinweeks prior to June 16, 2008."51. The Appellate Tribunals error is the result of mixing up the provisions of(4) of regulation 20.As explained earlier(12) came to be introduced in regulation 20 as a consequence of extension of time for making public announcement for the secondary and indirectly targeted company by insertion of(4) in regulation 14.(12) of regulation 20 obliges the acquirer to work out the best value for the shares of the indirectly targeted company as obtaining on the date of the public announcement for the parent target company as well as on the date of the public announcement for the concerned indirectly targeted company and then to offer the shareholders the better of the two values. This is for the simple reason that the extension allowed for making the public announcement for the indirectly targeted company should not cause any prejudice to its shareholders.(12) does not in any way affectWe are clearly of the view that for the application of regulation 20(4)(b) it is not relevant or material that the acquirer and the other person, who had acquired the shares of the target company on an earlier date, should be acting in concert at the time of the public announcement for the target company. What is material is that the other person was acting in concert with the acquirer at the time of purchase of shares of the target company.53. The true meaning of the idea of "persons acting in concert", as explained above will also clear all the doubts sought to be created by Mr. Divans illustration as noted above. In that illustration, persons A, B and C earlier purchased shares of company A separately and as strangers. Those purchases were, therefore naturally not by "persons acting in concert". But later on, all the three persons came together. They agreed to pool the benefits of their share with one another and to takeover company X, and they further agreed that they would vote together going forward. Thus the earlier purchases were brought within the concept subsequently by an express agreement between the three persons even though at the time of purchase the purchasers were not acting in concert. Hence, the earlier purchases too would fully attract the regulatory provisions of the Takeover Code.54. This is how we are able to follow the correct meaning of the expression "person acting in concert" as defined in regulation 2(e) and as used in regulation 20(4)(b) of the Takeover Code. | 1 | 12,969 | 3,282 | ### 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:
(formal or informal), directly or indirectly cooperate by acquiring or agreeing to acquire shares or voting rights in the target company or to acquire control over the target company. The word "comprises" in regulation 2(1)(e) is significant. It applies to regulation 2(1)(e)(2) as much as to regulation 2(1)(e)(1). A fortiori, a person deemed to be acting in concert with others is also a person acting in concert. In other words, persons who are deemed to be acting in concert must have the intention or the aim of acquisition of shares of a target company. It is the conduct of the parties that determines their identity. Whether a person is or is not acting in concert with the acquirer would depend upon the facts of each case. In order to hold that a person is acting in concert with the acquirer or with another person it must be established that the two share the common intention of acquisition of shares of some target company. For example, there is no hard and fast rule that every foreign institutional investor (FII) would share with the sub-account(s) the common objective of acquiring substantial stakes or control in some target company. Whether in a given case an FII and his sub-account(s) have a common objective of making investment in India to earn profits in unit holders or whether they have a common objective of acquiring substantial stakes or control in some target company would depend on the facts of each case. In the former case regulation 2(1)(e)(2)(v) would not apply whereas in the latter case the said sub-regulation would apply. The above illustration brings out the true purport of the expression "unless the contrary is established" which expression finds place in regulation 2(1)(e)(2).49. Something else that is of utmost importance is to understand that the deeming fiction under sub-regulation (2) can only operate prospectively and not retrospectively. That is to say the deeming provision would give rise to the presumption, as explained above, only from the date two or more persons come together in one of the specified relationships and not from any earlier date. Thus, in the case in hand, the deeming provision under sub-regulation (2) would give rise to the presumption that Daiichi and Ranbaxy were "persons acting in concert", provided of course the other conditions as explained above were also satisfied, only from October 20, 2008, the date on which Ranbaxy became a subsidiary of Daiichi and not before that. Hence, the purchase of Zenotech shares by Ranbaxy in January 2008 cannot be said to be by a "person acting in concert" with Daiichi.50. In light of the discussion made above, we are of the view, that the Appellate Tribunal was in error in proceeding on the basis that the material date for Ranbaxy and Daiichi to be acting in concert was the date of the public announcement for the Zenotech shares. The Tribunal Observed:"It is, thus, clear that on January 19, 2009, the material date on which the offer price for indirect acquisition is being worked out, Ranbaxy, being a subsidiary, was acting in concert with the Daiichi and that it (Ranbaxy) had paid Rs.160 per share to the shareholders of the target company during January 16 and January 28, 2008 when it acquired their shares under the Ranbaxy-Zenotech deal which period falls within twenty-six weeks prior to June 16, 2008."51. The Appellate Tribunals error is the result of mixing up the provisions of sub-regulations (12) and (4) of regulation 20. As explained earlier sub-regulation (12) came to be introduced in regulation 20 as a consequence of extension of time for making public announcement for the secondary and indirectly targeted company by insertion of sub-regulation (4) in regulation 14. Sub-regulation (12) of regulation 20 obliges the acquirer to work out the best value for the shares of the indirectly targeted company as obtaining on the date of the public announcement for the parent target company as well as on the date of the public announcement for the concerned indirectly targeted company and then to offer the shareholders the better of the two values. This is for the simple reason that the extension allowed for making the public announcement for the indirectly targeted company should not cause any prejudice to its shareholders. Sub-regulation (12) does not in any way affect sub-regulation (4) which remains unamended and it certainly does not alter the meaning of "person acting in concert" as used in that sub-section. 52. We are clearly of the view that for the application of regulation 20(4)(b) it is not relevant or material that the acquirer and the other person, who had acquired the shares of the target company on an earlier date, should be acting in concert at the time of the public announcement for the target company. What is material is that the other person was acting in concert with the acquirer at the time of purchase of shares of the target company.53. The true meaning of the idea of "persons acting in concert", as explained above will also clear all the doubts sought to be created by Mr. Divans illustration as noted above. In that illustration, persons A, B and C earlier purchased shares of company A separately and as strangers. Those purchases were, therefore naturally not by "persons acting in concert". But later on, all the three persons came together. They agreed to pool the benefits of their share with one another and to takeover company X, and they further agreed that they would vote together going forward. Thus the earlier purchases were brought within the concept subsequently by an express agreement between the three persons even though at the time of purchase the purchasers were not acting in concert. Hence, the earlier purchases too would fully attract the regulatory provisions of the Takeover Code.54. This is how we are able to follow the correct meaning of the expression "person acting in concert" as defined in regulation 2(e) and as used in regulation 20(4)(b) of the Takeover Code.
### Response:
1
### Explanation:
deeming provision. It has to be read in conjunction with regulation 2(1)(e)(1) which states that person acting in concert comprises of persons who in furtherance of a common objective or purpose of substantial acquisition of shares or voting rights or gaining control over the target company, pursuant to an agreement or understanding (formal or informal), directly or indirectly cooperate by acquiring or agreeing to acquire shares or voting rights in the target company or to acquire control over the target company. The word "comprises" in regulation 2(1)(e) is significant. It applies to regulation 2(1)(e)(2) as much as to regulation 2(1)(e)(1). A fortiori, a person deemed to be acting in concert with others is also a person acting in concert. In other words, persons who are deemed to be acting in concert must have the intention or the aim of acquisition of shares of a target company. It is the conduct of the parties that determines their identity. Whether a person is or is not acting in concert with the acquirer would depend upon the facts of each case. In order to hold that a person is acting in concert with the acquirer or with another person it must be established that the two share the common intention of acquisition of shares of some target company. For example, there is no hard and fast rule that every foreign institutional investor (FII) would share with thethe common objective of acquiring substantial stakes or control in some target company. Whether in a given case an FII and hishave a common objective of making investment in India to earn profits in unit holders or whether they have a common objective of acquiring substantial stakes or control in some target company would depend on the facts of each case. In the former case regulation 2(1)(e)(2)(v) would not apply whereas in the latter case the saidwould apply. The above illustration brings out the true purport of the expression "unless the contrary is established" which expression finds place in regulation 2(1)(e)(2).49. Something else that is of utmost importance is to understand that the deeming fiction under(2) can only operate prospectively and not retrospectively. That is to say the deeming provision would give rise to the presumption, as explained above, only from the date two or more persons come together in one of the specified relationships and not from any earlier date. Thus, in the case in hand, the deeming provision under(2) would give rise to the presumption that Daiichi and Ranbaxy were "persons acting in concert", provided of course the other conditions as explained above were also satisfied, only from October 20, 2008, the date on which Ranbaxy became a subsidiary of Daiichi and not before that. Hence, the purchase of Zenotech shares by Ranbaxy in January 2008 cannot be said to be by a "person acting in concert" with Daiichi.50. In light of the discussion made above, we are of the view, that the Appellate Tribunal was in error in proceeding on the basis that the material date for Ranbaxy and Daiichi to be acting in concert was the date of the public announcement for the Zenotech shares. The Tribunal Observed:"It is, thus, clear that on January 19, 2009, the material date on which the offer price for indirect acquisition is being worked out, Ranbaxy, being a subsidiary, was acting in concert with the Daiichi and that it (Ranbaxy) had paid Rs.160 per share to the shareholders of the target company during January 16 and January 28, 2008 when it acquired their shares under thedeal which period falls withinweeks prior to June 16, 2008."51. The Appellate Tribunals error is the result of mixing up the provisions of(4) of regulation 20.As explained earlier(12) came to be introduced in regulation 20 as a consequence of extension of time for making public announcement for the secondary and indirectly targeted company by insertion of(4) in regulation 14.(12) of regulation 20 obliges the acquirer to work out the best value for the shares of the indirectly targeted company as obtaining on the date of the public announcement for the parent target company as well as on the date of the public announcement for the concerned indirectly targeted company and then to offer the shareholders the better of the two values. This is for the simple reason that the extension allowed for making the public announcement for the indirectly targeted company should not cause any prejudice to its shareholders.(12) does not in any way affectWe are clearly of the view that for the application of regulation 20(4)(b) it is not relevant or material that the acquirer and the other person, who had acquired the shares of the target company on an earlier date, should be acting in concert at the time of the public announcement for the target company. What is material is that the other person was acting in concert with the acquirer at the time of purchase of shares of the target company.53. The true meaning of the idea of "persons acting in concert", as explained above will also clear all the doubts sought to be created by Mr. Divans illustration as noted above. In that illustration, persons A, B and C earlier purchased shares of company A separately and as strangers. Those purchases were, therefore naturally not by "persons acting in concert". But later on, all the three persons came together. They agreed to pool the benefits of their share with one another and to takeover company X, and they further agreed that they would vote together going forward. Thus the earlier purchases were brought within the concept subsequently by an express agreement between the three persons even though at the time of purchase the purchasers were not acting in concert. Hence, the earlier purchases too would fully attract the regulatory provisions of the Takeover Code.54. This is how we are able to follow the correct meaning of the expression "person acting in concert" as defined in regulation 2(e) and as used in regulation 20(4)(b) of the Takeover Code.
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Maharaji Educational Trust Vs. Housing & Urban Development Corporation Ltd. & Others | accession to the property mortgaged. It was also a case of improvement in existing property.38. Enlargement of estate is also an accession. The section is not limited to physical accretions or additions. In case there is increase of interest, the same is also covered under purview of section 70 as held in Sidheshwar Prasad v. Ram Saroop AIR 1963 Pat. 412. In case mortgagor had only the leasehold rights and had acquired freehold rights during subsistence of the mortgage, the same has to be treated as an accession to the property. Addition of occupancy rights or some other such rights with respect to the existing property should also be an accession to the mortgaged property. If the mortgagor discharges a prior encumbrance existing at the date of the mortgage, the increase in the value of the estate is for the benefit of the mortgagee. A clearance of the adjoining waste land by the mortgagor is not an accession within the meaning of section 70 as observed in Tay Gyi v. Maung Yan 146 IC 674.Thus in our opinion property 21 acres obtained in exchange by Educational Trust cannot be said to be accession within the purview of section 70 of TP Act.39. In the instant case the property was exchanged by the Educational Trust with Avas Parishad in the year 2007. Agreement had been entered into with SGS Constructions on 26.8.2010 for a sum of Rs. 154 crores in order to pay the dues of HUDCO and a sum of more than Rs. 9 crores had also been paid to Educational Trust which was deposited by it with HUDCO. Deposit of title deed has been made by Educational Trust subsequently on 27.7.2011 with HUDCO but prior to that an agreement to sale had been entered into for the aforesaid 21 acres of land which was unencumbered. Thus at the time when the agreement had been entered into, the property was unencumbered and was not under mortgage with HUDCO. Thus agreement with regard to 21 acres was not interdicted by interim order of DRT. Thus SGS Constructions by making a huge payment of Rs. 9 crores had acquired a right over the said unencumbered property. Thus HUDCO will not have the first right to sell the 21 acres of land which was unencumbered which was subject matter of agreement to sell. HUDCO will have the right for other mortgaged properties to realize the dues at the first instance.40. In the instant case it is apparent that the Educational Trust is a wilful defaulter and has built the property, colleges, hospitals from the money borrowed from HUDCO. It was the bounden duty of the Educational Trust to pay back the money to HUDCO. Thus no equitable principle comes to their rescue as despite running the institutions for the last 22 years, they have not paid back the amount. Once they want to run their colleges, hospitals etc. built up with the help of money advanced by HUDCO, obviously they must honestly ooze out the advantage which they are deriving from the institutions but it has become a general scenario that the persons who earn money with help of hefty loans, in spite of running institutions which have been set up by the money lent to them, they are not making payment of dues. Consequently, they will have no right to run the institutions in such a dishonest manner. The increase of non-performing assets in banks is one of the offshoots of such murky deals. It is shocking that despite having means, earning profits, they are not interested in making payment. Time has come when they have to be dealt with sternly and with an iron hand so as to make them pay public dues. We expect the Educational Trust to make payment of the amount which has swelled up to approximately to Rs. 480 crores by now and make payment otherwise they will have to face the consequences. Not only that, they have taken the money from HUDCO but from other incumbents i.e. SGS Constructions also but not interested in making payment in spite of running several institutions. There were orders which were passed earlier with respect to bank accounts also, but to our dismay, we have not been addressed as to what happened to those orders. Be that as it may. It is made clear that in case the Educational Trust wants to run institutions, they are bound to make payment and as they are liable to pay, they should pay in all fairness all sums which they have borrowed sans any ifs and buts. It is what is expected of them. Otherwise courts will have to step in and take action in case dues remain unpaid and bottlenecks are created by one way or the other in realization of dues. It is not only startling but also shocking to note that a giant institution which is imparting education to about 3000 students involving manpower of about 700 personnel is finding it difficult to pay the loaned amount and is coming up with lame excuses to shirk its responsibility.41. It was also submitted on the strength of decision in Suraj Lamp & Indusries Pvt. Ltd. v. State of Haryana & Anr. 2011(4) R.C.R.(Civil) 669 : 2011(5) Recent Apex Judgments (R.A.J.) 397 : (2012) 1 SCC 656 , Raheja Universal Ltd. v. NRC Limited & Ors. 2012(2) R.C.R.(Civil) 506 : 2012(2) Recent Apex Judgments (R.A.J.) 69 : (2012) 4 SCC 148 ; and M.L. Aggarwal v. Oriental Bank of Commerce & Ors. 128 (2006) Delhi Law Times 407 (DB) that the agreement entered into was not registered as such no right could accrue as per provisions of Section 54 of TP Act prevailing in State of Uttar Pradesh. However we refrain to comment finally on the said issue. However, fact remains that the registration of agreement has been made subsequently and stamp duty of more than Rs. 4 crores has been paid. Effect thereof has to be considered in appropriate proceedings/arbitral tribunal. | 0[ds]21. It is apparent from averments made by the Trust itself that it has more than 700 employees and 3000 students are taking education but it is shocking and surprising that the amount due to HUDCO taken as loan in 1995 is not being paid which has amassed to approximately Rs. 480 crores at present.22. It is also apparent that there are several rounds of litigation in spite of order of DRAT with respect to loan amount having attained finality, is not being honoured for recovery which proceedings under the SARFAESI Act had also been initiated by HUDCO but sans any result. The history of the case as projected clearly indicates that it has virtually become impossible to realize the dues owing to various litigations pending and filed by parties or some other thirdappears that on one hand the Educational Trust is trying to convey that property No.6 be sold first at the same time it has undertaken not to do so before arbitral tribunal and not questioned the order of arbitral tribunal rather has consented to order of arbitral tribunal that property No.6 not be sold. Parties are expected not to blow hot and cold. Conduct is unfair and inconsistent and indicative of dillydallying tactics on the part of the Educational Trust. However, there is yet another aspect that HUDCO is not bound by interim order of arbitral tribunal to the extent of approximately 43 acres of property comprised in Item No.6 and it would have first charge on said mortgaged property, hence, it is permitted to sale 43 acres of land initially mortgaged with it by Educational Trust. Remaining 21 acres of land obtained in exchange was unencumbered and cannot be said to be accession for reasons mentionedview of the order passed by appellate tribunal, it would be open to HUDCO to sell 43 acres of initially mortgaged land comprised in Item No.6 and other mortgaged properties No.1 to 5 and which had been mortgaged by the Educational Trust to HUDCO. However as medical colleges, dental college and hospitals are running and Educational Trust is obviously earning from them, cannot claim that the mortgaged property cannot be sold. However before sale we deem it appropriate to give one more opportunity to the Educational Trust to make payment to HUDCO. We deem it appropriate to direct HUDCO as well as the Trust to make an endeavour to settle the amount within a period of one month and the amount which may be settled between the parties be paid within a period as may be mutually agreed. In case no settlement is reached between HUDCO and the Educational Trust and if the Educational Trust fails to come forward with appropriate offer acceptable to HUDCO and start payment from the month of June, 2017 as may be agreed between the parties, it would be open to HUDCO to realize the amount in accordance with law by taking resort to mechanism available to it under the rules as expeditiously as possible.With respect to the mortgaged property no doubt about it that the law is that the first charge would be of the mortgagee that is HUDCO. In the case, properties 1 to 5 and out of item No.6 property, approximately 43 acres are admittedly under mortgage with HUDCO. The entire property No.6 was comprised of approximately 63.50 acres, out of this 21 acres had been exchanged by the Educational Trust with Avas Parishad, whether same is encumbered is in dispute.The doctrine of accession is limited to cases where the security in existent and has not been destroyed altogether and the mortgagor thereafter acquires, while keeping the security intact, a new right which is called accession. In the instant case the property which is 21 acres under mortgage, could not have been transferred by the Educational Trust free from encumbrances to Avas Parishad at all. As the property was encumbered, the charge of HUDCO would remain on the existing property which was actually under the mortgage deed. Thus the property which has been taken by Avas Parishad from the Educational Trust could not be said to be unencumbered and was subject to mortgage and it was not legally permissible for Educational Trust to give it to Avas Parishad as unencumberedthe facts of the instant case it cannot be said that it is so. Apart from that as specified in aforesaid point (7) above that accession is physical uniting of goods with other goods in such a manner that the identity of original goods is not lost. In the instant case identity of the original mortgaged property is lost and 21 acres of land is no more available. Thus it is not the case of uniting.It is apparent from the aforesaid definition that it is not a case of acquisition of title to personal property. It is necessary that in the combination which has been formed into a single article, existing property is not lost. Inthe facts of the instant case it cannot be said that it is so. Apart from that as specified in aforesaid point (7) above that accession is physical uniting of goods with other goods in such a manner that the identity of original goods is not lost. In the instant case identity of the original mortgaged property is lost and 21 acres of land is no more available. Thus it is not the case of uniting.In the instant case the property was exchanged by the Educational Trust with Avas Parishad in the year 2007. Agreement had been entered into with SGS Constructions on 26.8.2010 for a sum of Rs. 154 crores in order to pay the dues of HUDCO and a sum of more than Rs. 9 crores had also been paid to Educational Trust which was deposited by it with HUDCO. Deposit of title deed has been made by Educational Trust subsequently on 27.7.2011 with HUDCO but prior to that an agreement to sale had been entered into for the aforesaid 21 acres of land which was unencumbered. Thus at the time when the agreement had been entered into, the property was unencumbered and was not under mortgage with HUDCO. Thus agreement with regard to 21 acres was not interdicted by interim order of DRT. Thus SGS Constructions by making a huge payment of Rs. 9 crores had acquired a right over the said unencumbered property. Thus HUDCO will not have the first right to sell the 21 acres of land which was unencumbered which was subject matter of agreement to sell. HUDCO will have the right for other mortgaged properties to realize the dues at the first instance.40. In the instant case it is apparent that the Educational Trust is a wilful defaulter and has built the property, colleges, hospitals from the money borrowed from HUDCO. It was the bounden duty of the Educational Trust to pay back the money to HUDCO. Thus no equitable principle comes to their rescue as despite running the institutions for the last 22 years, they have not paid back the amount. Once they want to run their colleges, hospitals etc. built up with the help of money advanced by HUDCO, obviously they must honestly ooze out the advantage which they are deriving from the institutions but it has become a general scenario that the persons who earn money with help of hefty loans, in spite of running institutions which have been set up by the money lent to them, they are not making payment of dues. Consequently, they will have no right to run the institutions in such a dishonest manner. The increase ofassets in banks is one of the offshoots of such murky deals. It is shocking that despite having means, earning profits, they are not interested in making payment. Time has come when they have to be dealt with sternly and with an iron hand so as to make them pay public dues. We expect the Educational Trust to make payment of the amount which has swelled up to approximately to Rs. 480 crores by now and make payment otherwise they will have to face the consequences. Not only that, they have taken the money from HUDCO but from other incumbents i.e. SGS Constructions also but not interested in making payment in spite of running several institutions. There were orders which were passed earlier with respect to bank accounts also, but to our dismay, we have not been addressed as to what happened to those orders. Be that as it may. It is made clear that in case the Educational Trust wants to run institutions, they are bound to make payment and as they are liable to pay, they should pay in all fairness all sums which they have borrowed sans any ifs and buts. It is what is expected of them. Otherwise courts will have to step in and take action in case dues remain unpaid and bottlenecks are created by one way or the other in realization of dues. It is not only startling but also shocking to note that a giant institution which is imparting education to about 3000 students involving manpower of about 700 personnel is finding it difficult to pay the loaned amount and is coming up with lame excuses to shirk itswe refrain to comment finally on the said issue. However, fact remains that the registration of agreement has been made subsequently and stamp duty of more than Rs. 4 crores has been paid. Effect thereof has to be considered in appropriate proceedings/arbitral tribunal. | 0 | 8,297 | 1,687 | ### 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:
accession to the property mortgaged. It was also a case of improvement in existing property.38. Enlargement of estate is also an accession. The section is not limited to physical accretions or additions. In case there is increase of interest, the same is also covered under purview of section 70 as held in Sidheshwar Prasad v. Ram Saroop AIR 1963 Pat. 412. In case mortgagor had only the leasehold rights and had acquired freehold rights during subsistence of the mortgage, the same has to be treated as an accession to the property. Addition of occupancy rights or some other such rights with respect to the existing property should also be an accession to the mortgaged property. If the mortgagor discharges a prior encumbrance existing at the date of the mortgage, the increase in the value of the estate is for the benefit of the mortgagee. A clearance of the adjoining waste land by the mortgagor is not an accession within the meaning of section 70 as observed in Tay Gyi v. Maung Yan 146 IC 674.Thus in our opinion property 21 acres obtained in exchange by Educational Trust cannot be said to be accession within the purview of section 70 of TP Act.39. In the instant case the property was exchanged by the Educational Trust with Avas Parishad in the year 2007. Agreement had been entered into with SGS Constructions on 26.8.2010 for a sum of Rs. 154 crores in order to pay the dues of HUDCO and a sum of more than Rs. 9 crores had also been paid to Educational Trust which was deposited by it with HUDCO. Deposit of title deed has been made by Educational Trust subsequently on 27.7.2011 with HUDCO but prior to that an agreement to sale had been entered into for the aforesaid 21 acres of land which was unencumbered. Thus at the time when the agreement had been entered into, the property was unencumbered and was not under mortgage with HUDCO. Thus agreement with regard to 21 acres was not interdicted by interim order of DRT. Thus SGS Constructions by making a huge payment of Rs. 9 crores had acquired a right over the said unencumbered property. Thus HUDCO will not have the first right to sell the 21 acres of land which was unencumbered which was subject matter of agreement to sell. HUDCO will have the right for other mortgaged properties to realize the dues at the first instance.40. In the instant case it is apparent that the Educational Trust is a wilful defaulter and has built the property, colleges, hospitals from the money borrowed from HUDCO. It was the bounden duty of the Educational Trust to pay back the money to HUDCO. Thus no equitable principle comes to their rescue as despite running the institutions for the last 22 years, they have not paid back the amount. Once they want to run their colleges, hospitals etc. built up with the help of money advanced by HUDCO, obviously they must honestly ooze out the advantage which they are deriving from the institutions but it has become a general scenario that the persons who earn money with help of hefty loans, in spite of running institutions which have been set up by the money lent to them, they are not making payment of dues. Consequently, they will have no right to run the institutions in such a dishonest manner. The increase of non-performing assets in banks is one of the offshoots of such murky deals. It is shocking that despite having means, earning profits, they are not interested in making payment. Time has come when they have to be dealt with sternly and with an iron hand so as to make them pay public dues. We expect the Educational Trust to make payment of the amount which has swelled up to approximately to Rs. 480 crores by now and make payment otherwise they will have to face the consequences. Not only that, they have taken the money from HUDCO but from other incumbents i.e. SGS Constructions also but not interested in making payment in spite of running several institutions. There were orders which were passed earlier with respect to bank accounts also, but to our dismay, we have not been addressed as to what happened to those orders. Be that as it may. It is made clear that in case the Educational Trust wants to run institutions, they are bound to make payment and as they are liable to pay, they should pay in all fairness all sums which they have borrowed sans any ifs and buts. It is what is expected of them. Otherwise courts will have to step in and take action in case dues remain unpaid and bottlenecks are created by one way or the other in realization of dues. It is not only startling but also shocking to note that a giant institution which is imparting education to about 3000 students involving manpower of about 700 personnel is finding it difficult to pay the loaned amount and is coming up with lame excuses to shirk its responsibility.41. It was also submitted on the strength of decision in Suraj Lamp & Indusries Pvt. Ltd. v. State of Haryana & Anr. 2011(4) R.C.R.(Civil) 669 : 2011(5) Recent Apex Judgments (R.A.J.) 397 : (2012) 1 SCC 656 , Raheja Universal Ltd. v. NRC Limited & Ors. 2012(2) R.C.R.(Civil) 506 : 2012(2) Recent Apex Judgments (R.A.J.) 69 : (2012) 4 SCC 148 ; and M.L. Aggarwal v. Oriental Bank of Commerce & Ors. 128 (2006) Delhi Law Times 407 (DB) that the agreement entered into was not registered as such no right could accrue as per provisions of Section 54 of TP Act prevailing in State of Uttar Pradesh. However we refrain to comment finally on the said issue. However, fact remains that the registration of agreement has been made subsequently and stamp duty of more than Rs. 4 crores has been paid. Effect thereof has to be considered in appropriate proceedings/arbitral tribunal.
### Response:
0
### Explanation:
is limited to cases where the security in existent and has not been destroyed altogether and the mortgagor thereafter acquires, while keeping the security intact, a new right which is called accession. In the instant case the property which is 21 acres under mortgage, could not have been transferred by the Educational Trust free from encumbrances to Avas Parishad at all. As the property was encumbered, the charge of HUDCO would remain on the existing property which was actually under the mortgage deed. Thus the property which has been taken by Avas Parishad from the Educational Trust could not be said to be unencumbered and was subject to mortgage and it was not legally permissible for Educational Trust to give it to Avas Parishad as unencumberedthe facts of the instant case it cannot be said that it is so. Apart from that as specified in aforesaid point (7) above that accession is physical uniting of goods with other goods in such a manner that the identity of original goods is not lost. In the instant case identity of the original mortgaged property is lost and 21 acres of land is no more available. Thus it is not the case of uniting.It is apparent from the aforesaid definition that it is not a case of acquisition of title to personal property. It is necessary that in the combination which has been formed into a single article, existing property is not lost. Inthe facts of the instant case it cannot be said that it is so. Apart from that as specified in aforesaid point (7) above that accession is physical uniting of goods with other goods in such a manner that the identity of original goods is not lost. In the instant case identity of the original mortgaged property is lost and 21 acres of land is no more available. Thus it is not the case of uniting.In the instant case the property was exchanged by the Educational Trust with Avas Parishad in the year 2007. Agreement had been entered into with SGS Constructions on 26.8.2010 for a sum of Rs. 154 crores in order to pay the dues of HUDCO and a sum of more than Rs. 9 crores had also been paid to Educational Trust which was deposited by it with HUDCO. Deposit of title deed has been made by Educational Trust subsequently on 27.7.2011 with HUDCO but prior to that an agreement to sale had been entered into for the aforesaid 21 acres of land which was unencumbered. Thus at the time when the agreement had been entered into, the property was unencumbered and was not under mortgage with HUDCO. Thus agreement with regard to 21 acres was not interdicted by interim order of DRT. Thus SGS Constructions by making a huge payment of Rs. 9 crores had acquired a right over the said unencumbered property. Thus HUDCO will not have the first right to sell the 21 acres of land which was unencumbered which was subject matter of agreement to sell. HUDCO will have the right for other mortgaged properties to realize the dues at the first instance.40. In the instant case it is apparent that the Educational Trust is a wilful defaulter and has built the property, colleges, hospitals from the money borrowed from HUDCO. It was the bounden duty of the Educational Trust to pay back the money to HUDCO. Thus no equitable principle comes to their rescue as despite running the institutions for the last 22 years, they have not paid back the amount. Once they want to run their colleges, hospitals etc. built up with the help of money advanced by HUDCO, obviously they must honestly ooze out the advantage which they are deriving from the institutions but it has become a general scenario that the persons who earn money with help of hefty loans, in spite of running institutions which have been set up by the money lent to them, they are not making payment of dues. Consequently, they will have no right to run the institutions in such a dishonest manner. The increase ofassets in banks is one of the offshoots of such murky deals. It is shocking that despite having means, earning profits, they are not interested in making payment. Time has come when they have to be dealt with sternly and with an iron hand so as to make them pay public dues. We expect the Educational Trust to make payment of the amount which has swelled up to approximately to Rs. 480 crores by now and make payment otherwise they will have to face the consequences. Not only that, they have taken the money from HUDCO but from other incumbents i.e. SGS Constructions also but not interested in making payment in spite of running several institutions. There were orders which were passed earlier with respect to bank accounts also, but to our dismay, we have not been addressed as to what happened to those orders. Be that as it may. It is made clear that in case the Educational Trust wants to run institutions, they are bound to make payment and as they are liable to pay, they should pay in all fairness all sums which they have borrowed sans any ifs and buts. It is what is expected of them. Otherwise courts will have to step in and take action in case dues remain unpaid and bottlenecks are created by one way or the other in realization of dues. It is not only startling but also shocking to note that a giant institution which is imparting education to about 3000 students involving manpower of about 700 personnel is finding it difficult to pay the loaned amount and is coming up with lame excuses to shirk itswe refrain to comment finally on the said issue. However, fact remains that the registration of agreement has been made subsequently and stamp duty of more than Rs. 4 crores has been paid. Effect thereof has to be considered in appropriate proceedings/arbitral tribunal.
|
Nidhi Vs. Ram Kripal Sharma (D) Thr. Lrs | the house would get married and settle with her husband. Though the appellant has got married and shifted to different accommodation with her husband, the actual bona fide requirement of premises is still the same, since her parents and grandparents are still residing separately from each other with no one to look after them. More so, the appellant got married but the family stays where it is and the bona fide requirement of premises for accommodation of parents remains the same. Being married and shifting to other place does not automatically result in extinguishing of bona fide requirement of the appellant as being the owner of property, she alone is to decide what she wants to do with her property.13. The legislations made for dealing with such landlord-tenant disputes were pro-tenant as the court tends to bend towards the tenant in order to do justice with the tenant; but in the process of doing justice the Court cannot be over zealous and forget its duty towards the landlord also as ultimately, it is the landlord who owns the property and is entitled to possession of the same when he proves his bona fide beyond reasonable doubt as it is in the case before this Court.14. First appellate court as well as the High Court observed that during the pendency of the appeal, the appellant got married, her husband a member of Indian Revenue Service (IRS) posted at Delhi, Mumbai and other places and this subsequent event has extinguished the personal requirement of the appellant. In the impugned judgment, the High Court referred to number of judgments Hasmat Rai and Another v. Raghunath Prasad (1981) 3 SCC 103 ; Ramesh Kumar v. Kesho Ram, 1992(1) R.C.R (Rent) 370 : (1992) Suppl. (2) SCC 623 and other judgments.15. Ordinarily, rights of the parties stand crystallised on the date of institution of the suit. However, the court has power to take note of the subsequent events and mould the relief accordingly. Power of the court to take note of subsequent events came up for consideration in a number of decisions. In Om Prakash Gupta v. Ranbir B. Goyal, 2002(1) R.C.R.(Rent) 150 : (2002) 2 SCC 256 , this Court held as under:-"11.The ordinary rule of civil law is that the rights of the parties stand crystallised on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. However, the Court has power to take note of subsequent events and mould the relief accordingly subject to the following conditions being satisfied: (i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and (iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise. In Pasupuleti Venkateswarlu v. Motor & General Traders, 1975(*) R.C.R.(Rent) 486 : (1975) 1 SCC 770 this Court held that a fact arising after the lis, coming to the notice of the court and having a fundamental impact on the right to relief or the manner of moulding it and brought diligently to the notice of the court cannot be blinked at. The court may in such cases bend the rules of procedure if no specific provision of law or rule of fair play is violated for it would promote substantial justice provided that there is absence of other disentitling factors or just circumstances. The Court speaking through Krishna Iyer, J. affirmed the proposition that the court can, so long as the litigation pends, take note of updated facts to promote substantial justice. However, the Court cautioned: (i) the event should be one as would stultify or render inept the decretal remedy, (ii) rules of procedure may be bent if no specific provision or fair play is violated and there is no other special circumstance repelling resort to that course in law or justice, (iii) such cognizance of subsequent events and developments should be cautious, and (iv) the rules of fairness to both sides should be scrupulously obeyed."Om Prakash Guptas case was referred with approval in Ram Kumar Barnwal v. Ram Lakhan (Dead), 2007(3) R.C.R.(Civil) 279 : 2007(1) R.C.R.(Rent) 657 : (2007) 5 SCC 660. 16. Though the court has the power to take note of the subsequent events, court has to consider the effect of subsequent development on the bona fide need of the landlord. For the purpose of coming to the conclusion on bona fide need of the landlord, comparative hardship to the parties will have to be taken into consideration. As discussed above, in the present case, the appellant got married during the pendency of the appeal and settled with her husband; still her requirement to accommodate her parents and grandparents continued. Appellant has established her bona fide requirement for accommodating her parents and grandparents in the suit premises merely because the appellant got married amidst the proceedings does not extinguish her claim for the relief of possession of the suit premises. In our view, the subsequent event, namely, marriage of appellant does not extinguish her requirement considering the comparative hardship, it is to be pointed out that the respondents have another business of sweet shop and thus, is not going to suffer if ordered to vacate the suit premises as they can shift the place of business to some other place without suffering any loss of occupation, whereas the parents of the appellant would be subjected to hardship as she has no other premises to accommodate her grandparents as well as her parents. While taking note of the subsequent events, the High Court has not considered the comparative hardship to the appellant and erred in declining the relief to the appellant. | 1[ds]13. The legislations made for dealing with such landlord-tenant disputes were pro-tenant as the court tends to bend towards the tenant in order to do justice with the tenant; but in the process of doing justice the Court cannot be over zealous and forget its duty towards the landlord also as ultimately, it is the landlord who owns the property and is entitled to possession of the same when he proves his bona fide beyond reasonable doubt as it is in the case before this Court.14. First appellate court as well as the High Court observed that during the pendency of the appeal, the appellant got married, her husband a member of Indian Revenue Service (IRS) posted at Delhi, Mumbai and other places and this subsequent event has extinguished the personal requirement of the appellant. In the impugned judgment, the High Court referred to number of judgments Hasmat Rai and Another v. Raghunath Prasad (1981) 3 SCC 103 ; Ramesh Kumar v. Kesho Ram, 1992(1) R.C.R (Rent) 370 : (1992) Suppl. (2) SCC 623 and other judgments.15. Ordinarily, rights of the parties stand crystallised on the date of institution of the suit. However, the court has power to take note of the subsequent events and mould the relief accordingly. Power of the court to take note of subsequent events came up for consideration in a number of decisions. In Om Prakash Gupta v. Ranbir B. Goyal, 2002(1) R.C.R.(Rent) 150 : (2002) 2 SCC 256 , this Court held asordinary rule of civil law is that the rights of the parties stand crystallised on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. However, the Court has power to take note of subsequent events and mould the relief accordingly subject to the following conditions being satisfied: (i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and (iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise. In Pasupuleti Venkateswarlu v. Motor & General Traders, 1975(*) R.C.R.(Rent) 486 : (1975) 1 SCC 770 this Court held that a fact arising after the lis, coming to the notice of the court and having a fundamental impact on the right to relief or the manner of moulding it and brought diligently to the notice of the court cannot be blinked at. The court may in such cases bend the rules of procedure if no specific provision of law or rule of fair play is violated for it would promote substantial justice provided that there is absence of other disentitling factors or just circumstances. The Court speaking through Krishna Iyer, J. affirmed the proposition that the court can, so long as the litigation pends, take note of updated facts to promote substantial justice. However, the Court cautioned: (i) the event should be one as would stultify or render inept the decretal remedy, (ii) rules of procedure may be bent if no specific provision or fair play is violated and there is no other special circumstance repelling resort to that course in law or justice, (iii) such cognizance of subsequent events and developments should be cautious, and (iv) the rules of fairness to both sides should be scrupulouslyPrakash Guptas case was referred with approval in Ram Kumar Barnwal v. Ram Lakhan (Dead), 2007(3) R.C.R.(Civil) 279 : 2007(1) R.C.R.(Rent) 657 : (2007) 5 SCC 660. 16. Though the court has the power to take note of the subsequent events, court has to consider the effect of subsequent development on the bona fide need of the landlord. For the purpose of coming to the conclusion on bona fide need of the landlord, comparative hardship to the parties will have to be taken into consideration. As discussed above, in the present case, the appellant got married during the pendency of the appeal and settled with her husband; still her requirement to accommodate her parents and grandparents continued. Appellant has established her bona fide requirement for accommodating her parents and grandparents in the suit premises merely because the appellant got married amidst the proceedings does not extinguish her claim for the relief of possession of the suit premises. In our view, the subsequent event, namely, marriage of appellant does not extinguish her requirement considering the comparative hardship, it is to be pointed out that the respondents have another business of sweet shop and thus, is not going to suffer if ordered to vacate the suit premises as they can shift the place of business to some other place without suffering any loss of occupation, whereas the parents of the appellant would be subjected to hardship as she has no other premises to accommodate her grandparents as well as her parents. While taking note of the subsequent events, the High Court has not considered the comparative hardship to the appellant and erred in declining the relief to the appellant. | 1 | 2,944 | 1,010 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
the house would get married and settle with her husband. Though the appellant has got married and shifted to different accommodation with her husband, the actual bona fide requirement of premises is still the same, since her parents and grandparents are still residing separately from each other with no one to look after them. More so, the appellant got married but the family stays where it is and the bona fide requirement of premises for accommodation of parents remains the same. Being married and shifting to other place does not automatically result in extinguishing of bona fide requirement of the appellant as being the owner of property, she alone is to decide what she wants to do with her property.13. The legislations made for dealing with such landlord-tenant disputes were pro-tenant as the court tends to bend towards the tenant in order to do justice with the tenant; but in the process of doing justice the Court cannot be over zealous and forget its duty towards the landlord also as ultimately, it is the landlord who owns the property and is entitled to possession of the same when he proves his bona fide beyond reasonable doubt as it is in the case before this Court.14. First appellate court as well as the High Court observed that during the pendency of the appeal, the appellant got married, her husband a member of Indian Revenue Service (IRS) posted at Delhi, Mumbai and other places and this subsequent event has extinguished the personal requirement of the appellant. In the impugned judgment, the High Court referred to number of judgments Hasmat Rai and Another v. Raghunath Prasad (1981) 3 SCC 103 ; Ramesh Kumar v. Kesho Ram, 1992(1) R.C.R (Rent) 370 : (1992) Suppl. (2) SCC 623 and other judgments.15. Ordinarily, rights of the parties stand crystallised on the date of institution of the suit. However, the court has power to take note of the subsequent events and mould the relief accordingly. Power of the court to take note of subsequent events came up for consideration in a number of decisions. In Om Prakash Gupta v. Ranbir B. Goyal, 2002(1) R.C.R.(Rent) 150 : (2002) 2 SCC 256 , this Court held as under:-"11.The ordinary rule of civil law is that the rights of the parties stand crystallised on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. However, the Court has power to take note of subsequent events and mould the relief accordingly subject to the following conditions being satisfied: (i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and (iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise. In Pasupuleti Venkateswarlu v. Motor & General Traders, 1975(*) R.C.R.(Rent) 486 : (1975) 1 SCC 770 this Court held that a fact arising after the lis, coming to the notice of the court and having a fundamental impact on the right to relief or the manner of moulding it and brought diligently to the notice of the court cannot be blinked at. The court may in such cases bend the rules of procedure if no specific provision of law or rule of fair play is violated for it would promote substantial justice provided that there is absence of other disentitling factors or just circumstances. The Court speaking through Krishna Iyer, J. affirmed the proposition that the court can, so long as the litigation pends, take note of updated facts to promote substantial justice. However, the Court cautioned: (i) the event should be one as would stultify or render inept the decretal remedy, (ii) rules of procedure may be bent if no specific provision or fair play is violated and there is no other special circumstance repelling resort to that course in law or justice, (iii) such cognizance of subsequent events and developments should be cautious, and (iv) the rules of fairness to both sides should be scrupulously obeyed."Om Prakash Guptas case was referred with approval in Ram Kumar Barnwal v. Ram Lakhan (Dead), 2007(3) R.C.R.(Civil) 279 : 2007(1) R.C.R.(Rent) 657 : (2007) 5 SCC 660. 16. Though the court has the power to take note of the subsequent events, court has to consider the effect of subsequent development on the bona fide need of the landlord. For the purpose of coming to the conclusion on bona fide need of the landlord, comparative hardship to the parties will have to be taken into consideration. As discussed above, in the present case, the appellant got married during the pendency of the appeal and settled with her husband; still her requirement to accommodate her parents and grandparents continued. Appellant has established her bona fide requirement for accommodating her parents and grandparents in the suit premises merely because the appellant got married amidst the proceedings does not extinguish her claim for the relief of possession of the suit premises. In our view, the subsequent event, namely, marriage of appellant does not extinguish her requirement considering the comparative hardship, it is to be pointed out that the respondents have another business of sweet shop and thus, is not going to suffer if ordered to vacate the suit premises as they can shift the place of business to some other place without suffering any loss of occupation, whereas the parents of the appellant would be subjected to hardship as she has no other premises to accommodate her grandparents as well as her parents. While taking note of the subsequent events, the High Court has not considered the comparative hardship to the appellant and erred in declining the relief to the appellant.
### Response:
1
### Explanation:
13. The legislations made for dealing with such landlord-tenant disputes were pro-tenant as the court tends to bend towards the tenant in order to do justice with the tenant; but in the process of doing justice the Court cannot be over zealous and forget its duty towards the landlord also as ultimately, it is the landlord who owns the property and is entitled to possession of the same when he proves his bona fide beyond reasonable doubt as it is in the case before this Court.14. First appellate court as well as the High Court observed that during the pendency of the appeal, the appellant got married, her husband a member of Indian Revenue Service (IRS) posted at Delhi, Mumbai and other places and this subsequent event has extinguished the personal requirement of the appellant. In the impugned judgment, the High Court referred to number of judgments Hasmat Rai and Another v. Raghunath Prasad (1981) 3 SCC 103 ; Ramesh Kumar v. Kesho Ram, 1992(1) R.C.R (Rent) 370 : (1992) Suppl. (2) SCC 623 and other judgments.15. Ordinarily, rights of the parties stand crystallised on the date of institution of the suit. However, the court has power to take note of the subsequent events and mould the relief accordingly. Power of the court to take note of subsequent events came up for consideration in a number of decisions. In Om Prakash Gupta v. Ranbir B. Goyal, 2002(1) R.C.R.(Rent) 150 : (2002) 2 SCC 256 , this Court held asordinary rule of civil law is that the rights of the parties stand crystallised on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. However, the Court has power to take note of subsequent events and mould the relief accordingly subject to the following conditions being satisfied: (i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and (iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise. In Pasupuleti Venkateswarlu v. Motor & General Traders, 1975(*) R.C.R.(Rent) 486 : (1975) 1 SCC 770 this Court held that a fact arising after the lis, coming to the notice of the court and having a fundamental impact on the right to relief or the manner of moulding it and brought diligently to the notice of the court cannot be blinked at. The court may in such cases bend the rules of procedure if no specific provision of law or rule of fair play is violated for it would promote substantial justice provided that there is absence of other disentitling factors or just circumstances. The Court speaking through Krishna Iyer, J. affirmed the proposition that the court can, so long as the litigation pends, take note of updated facts to promote substantial justice. However, the Court cautioned: (i) the event should be one as would stultify or render inept the decretal remedy, (ii) rules of procedure may be bent if no specific provision or fair play is violated and there is no other special circumstance repelling resort to that course in law or justice, (iii) such cognizance of subsequent events and developments should be cautious, and (iv) the rules of fairness to both sides should be scrupulouslyPrakash Guptas case was referred with approval in Ram Kumar Barnwal v. Ram Lakhan (Dead), 2007(3) R.C.R.(Civil) 279 : 2007(1) R.C.R.(Rent) 657 : (2007) 5 SCC 660. 16. Though the court has the power to take note of the subsequent events, court has to consider the effect of subsequent development on the bona fide need of the landlord. For the purpose of coming to the conclusion on bona fide need of the landlord, comparative hardship to the parties will have to be taken into consideration. As discussed above, in the present case, the appellant got married during the pendency of the appeal and settled with her husband; still her requirement to accommodate her parents and grandparents continued. Appellant has established her bona fide requirement for accommodating her parents and grandparents in the suit premises merely because the appellant got married amidst the proceedings does not extinguish her claim for the relief of possession of the suit premises. In our view, the subsequent event, namely, marriage of appellant does not extinguish her requirement considering the comparative hardship, it is to be pointed out that the respondents have another business of sweet shop and thus, is not going to suffer if ordered to vacate the suit premises as they can shift the place of business to some other place without suffering any loss of occupation, whereas the parents of the appellant would be subjected to hardship as she has no other premises to accommodate her grandparents as well as her parents. While taking note of the subsequent events, the High Court has not considered the comparative hardship to the appellant and erred in declining the relief to the appellant.
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STATE OF MAHARASHTRA Vs. VIKRAM RANGNATH KESHBHAT | 1. Delay condoned. Leave granted. 2. The State of Maharashtra is in appeal before this Court challenging an order of the High Court by which the conviction of the accused respondent has been altered from Section 302 IPC to one under Section 304 Part I IPC and sentence is modified to the period undergone which is about five years. 3. We have considered the materials on record. The case of the prosecution is sought to be built on the basis of the dying declarations of the deceased and the testimony of PW-7-Rani, the minor daughter (three and half years old) in whose presence the incident is alleged to have taken place. The dying declarations clearly implicate the accused respondent and establish that it is the accused respondent who had poured kerosene on the deceased and burnt her to death. This is also the testimony of PW-7, who was also present at the place of occurrence (which fact was duly mentioned in the dying declaration of the deceased). 4. That apart, the High Court has held that the present is a case of grave and sudden provocation which the accused respondent was faced with on coming to know of the extra-marital affairs of the deceased. Accordingly, the High Court thought it proper to alter the conviction and sentence as aforesaid. 5. Having regard to the dying declarations and the fact that the materials on record indicate that the accused respondent had purchased one litre of kerosene earlier and had kept the same in the motorcycle which he used later to commit the crime, we are of the view that the above facts sufficiently indicate the fact that the crime committed was premeditated and was not in the heat of the moment. | 1[ds]5. Having regard to the dying declarations and the fact that the materials on record indicate that the accused respondent had purchased one litre of kerosene earlier and had kept the same in the motorcycle which he used later to commit the crime, we are of the view that the above facts sufficiently indicate the fact that the crime committed was premeditated and was not in the heat of the moment. | 1 | 314 | 78 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
1. Delay condoned. Leave granted. 2. The State of Maharashtra is in appeal before this Court challenging an order of the High Court by which the conviction of the accused respondent has been altered from Section 302 IPC to one under Section 304 Part I IPC and sentence is modified to the period undergone which is about five years. 3. We have considered the materials on record. The case of the prosecution is sought to be built on the basis of the dying declarations of the deceased and the testimony of PW-7-Rani, the minor daughter (three and half years old) in whose presence the incident is alleged to have taken place. The dying declarations clearly implicate the accused respondent and establish that it is the accused respondent who had poured kerosene on the deceased and burnt her to death. This is also the testimony of PW-7, who was also present at the place of occurrence (which fact was duly mentioned in the dying declaration of the deceased). 4. That apart, the High Court has held that the present is a case of grave and sudden provocation which the accused respondent was faced with on coming to know of the extra-marital affairs of the deceased. Accordingly, the High Court thought it proper to alter the conviction and sentence as aforesaid. 5. Having regard to the dying declarations and the fact that the materials on record indicate that the accused respondent had purchased one litre of kerosene earlier and had kept the same in the motorcycle which he used later to commit the crime, we are of the view that the above facts sufficiently indicate the fact that the crime committed was premeditated and was not in the heat of the moment.
### Response:
1
### Explanation:
5. Having regard to the dying declarations and the fact that the materials on record indicate that the accused respondent had purchased one litre of kerosene earlier and had kept the same in the motorcycle which he used later to commit the crime, we are of the view that the above facts sufficiently indicate the fact that the crime committed was premeditated and was not in the heat of the moment.
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Lakshmiratan Cotton Mills Company Limited Vs. Commissioner of Income Tax, Uttar Pradesh | entering into an agreement with the company to do the functions of the managing agents. There must be something more than that and we have not the least hesitation in saying that in the present case on the facts on record there is nothing to indicate that the managing agents as such rendered any service."24. We are unable to hold that the finding that no services were rendered by the managing agents was based on "surmises and conjectures", or that it was based on no evidence.The burden of proving that services were rendered by the managing agents for earning the remuneration lay upon the Company, and if no reliable evidence was forthcoming the Tribunal was competent to reach the conclusion it did.25. The recitals in the agency agreement which authorised the managing agents to do certain acts could not be a substitute for evidence that those acts were done by the managing agents. Counsel for the Company made no effort to enlighten the Tribunal on how the business of the Company would have suffered by the quarrels between Guptas and Singhanias. Even prior to the termination of the contract of the managing agents of the Company the Singhanias had no effective voice in the management of the firm. No representative of the Singhanias was on the Board of Directors prior to the termination of the contract. If in that state of evidence the Tribunal concluded that quarrels between the Guptas and Singhanias could in no way harm or put hindrance in the normal day to day working of the Company, the finding could not be again said to be based on surmises and conjectures.26. Counsel for the Company invited our attention to the threat by the Singhanias to move the Civil Court to appoint a receiver for the management of the Company, and contended that if a receiver was appointed for management of the Company, the affairs of the company might possibly have been mismanaged. It is difficult to understand that because of the disputes between the two sets of partners of the managing agency firm, a Civil Court could have appointed a receiver to manage the affairs of the Company: a receiver may have been appointed of the remuneration payable by the Company but not of the management. It is not suggested that the affairs of the Company were mismanaged. The management of the Company was conducted after September 30, 1944, in the same manner and by the same directors as it was originally conducted. A futile threat could not reasonably be taken into consideration, and was not apparently taken into account, for determining the managing agency agreement. This plea was apparently not even suggested before the Tribunal. "27. The burden of proving that the expenditure was incurred wholly and exclusively for the purpose of the business lay upon the Company and no evidence was led and not even an attempt was made to explain how the affairs of the Company would have been prejudiced by the disputes pending between the Singhanias and Guptas.28. The remuneration payable under the managing agency agreement was for a two-fold consideration -- (1) the services rendered by the managing agents in the promotion of the Company; and (2) for rendering services to the Company.Expenditure incurred for remunerating the persons who had promoted the Company was not in law, a revenue expenditure admissible under Section 10 (2) (xv) of the lncome-tax Act and if no services were rendered by the managing agents, the remuneration must be regarded as exclusively payable for the services rendered by the managing agents in the promotion of the Company. The expenditure could not in the circumstances be said to be made wholly and exclusively in the interest of the business of the Company.29. The Tribunal has stated in paragraph 30 of its order that under the award of Thakur Kanhaiya Singh each party had to pay the other large sums, and a device was adopted to provide funds in the hands of the parties at the expense of the Company for settling their individual accounts; and that "in preparing the scheme the authors had made an effort to reduce the tax liability of the Company by claiming the amount as a revenue deduction." The Tribunal appears to have reached this conclusion from the terms of the award of Thakur Kanhaiya Singh, the settlement between Singhanias and Guptas of the civil suit by consent decree dated January 11, 1945, by a supplementary award which provided for distribution of compensation which it was expected "would be receivable" for determination of the managing agency, and the ultimate award of Mr. K. M. Munshi which contained a mere bald decision and no reasons in support thereof. Whether this part of the judgment of the Tribunal is correct need not detain us in this case. If the amount paid was not expenditure incurred wholly and exclusively for the purpose of the business, it is unnecessary to consider whether a "device" was adopted to provide funds in the hands of the parties at the expense of the Company for the purpose of settling their individual accounts or for some other reason. The question raised by the Tribunal for the decision of the High Court, it may be recalled, was whether there was any material on which the conclusion of the Tribunal could be justified, and in our judgment there was ample material on which the conclusion could be founded. The answer recorded by the High Court was, on the question referred by the Tribunal by their statement dated December 29, 1954, in our judgment right. The High Court was also right in declining to record formal answer on the other questions.30. No separate argument was advanced in regard to the amount of Rs.13,300/which was incurred for the costs of the arbitrator and for the arbitration proceedings. No argument was also apparently raised before the High Court supporting the claim for that amount as a permissible allowance even if the claim for Rs. 18,90,000/- was disallowed. | 0[ds]16. It is also well settled that in an application under Section 66 (2) of theAct the High Court cannot order that a case be stated on questions which were not included in the application submitted under Section 66High Court was, therefore, incompetent to call upon the Tribunal to submit a statement of case on questions of fact or questions which were not incorporated in the application under Section 66 (1).17. The Company in its application under Section 66 (2) requested that a statement of case be called for in respect of only two questions. Thereafter the Company applied to the High Court for an order that other questions which were neither incorporated in the application under Section 66 (2) nor in the application under Section 66 (2) be submitted to the High Court.The High Court had no power, in our judgment, to grant that application. The power under Section 66 (4) may be exercised to call for a supplementary statement only when the Court is satisfied that the statements in a case referred underion (2) of Section 66 are not sufficient to enable it to determine the question raised by that statement. It does not confer a power to raise any additional questions or to call for a statement of case on questions not referred by thepower under Section 66 (4) may be exercised when the High Court is not satisfied that the statements in a case referred are sufficient to determine the question referred thereby, it cannot be exercised for calling for another statement on questions not referred by the Tribunal.The procedure followed by the High Court in calling for, in exercise of the power under Section 66 (4), an additional statement of the case on questions which were not incorporated in the applications under Section 66 (1) and (2) was, in our judgment, irregular.19.Correctness of an order of High Court calling for a statement of case may be challenged at the hearing of the reference and the Court may decline to answer the question referred pursuant to the direction of the High Court, if it did not arise out of the order of the Tribunal, or is a question of fact or is academic or could not have been raised because it was not incorporated in the application under Section 66 (1) :Commissioner ofv. Smt. Anusuya Devi, 68 ITR 750 = (AIR 1968 SC 779 ). Counsel for the Company has, therefore rightly confined himself to the question which was originally submitted by the Tribunal by order dated December 29, 1954, and has raised his argument on that question only.We are unable to hold that the finding that no services were rendered by the managing agents was based on "surmises and conjectures", or that it was based on no evidence.The burden of proving that services were rendered by the managing agents for earning the remuneration lay upon the Company, and if no reliable evidence was forthcoming the Tribunal was competent to reach the conclusion it did.25. The recitals in the agency agreement which authorised the managing agents to do certain acts could not be a substitute for evidence that those acts were done by the managing agents. Counsel for the Company made no effort to enlighten the Tribunal on how the business of the Company would have suffered by the quarrels between Guptas and Singhanias. Even prior to the termination of the contract of the managing agents of the Company the Singhanias had no effective voice in the management of the firm. No representative of the Singhanias was on the Board of Directors prior to the termination of the contract. If in that state of evidence the Tribunal concluded that quarrels between the Guptas and Singhanias could in no way harm or put hindrance in the normal day to day working of the Company, the finding could not be again said to be based on surmises andis difficult to understand that because of the disputes between the two sets of partners of the managing agency firm, a Civil Court could have appointed a receiver to manage the affairs of the Company: a receiver may have been appointed of the remuneration payable by the Company but not of the management. It is not suggested that the affairs of the Company were mismanaged. The management of the Company was conducted after September 30, 1944, in the same manner and by the same directors as it was originally conducted. A futile threat could not reasonably be taken into consideration, and was not apparently taken into account, for determining the managing agency agreement. This plea was apparently not even suggested before the Tribunal. "27. The burden of proving that the expenditure was incurred wholly and exclusively for the purpose of the business lay upon the Company and no evidence was led and not even an attempt was made to explain how the affairs of the Company would have been prejudiced by the disputes pending between the Singhanias and Guptas.28. The remuneration payable under the managing agency agreement was for a) the services rendered by the managing agents in the promotion of the Company; and (2) for rendering services to the Company.Expenditure incurred for remunerating the persons who had promoted the Company was not in law, a revenue expenditure admissible under Section 10 (2) (xv) of theAct and if no services were rendered by the managing agents, the remuneration must be regarded as exclusively payable for the services rendered by the managing agents in the promotion of the Company. The expenditure could not in the circumstances be said to be made wholly and exclusively in the interest of the business of the Company.29. The Tribunal has stated in paragraph 30 of its order that under the award of Thakur Kanhaiya Singh each party had to pay the other large sums, and a device was adopted to provide funds in the hands of the parties at the expense of the Company for settling their individual accounts; and that "in preparing the scheme the authors had made an effort to reduce the tax liability of the Company by claiming the amount as a revenue deduction." The Tribunal appears to have reached this conclusion from the terms of the award of Thakur Kanhaiya Singh, the settlement between Singhanias and Guptas of the civil suit by consent decree dated January 11, 1945, by a supplementary award which provided for distribution of compensation which it was expected "would be receivable" for determination of the managing agency, and the ultimate award of Mr. K. M. Munshi which contained a mere bald decision and no reasons in support thereof. Whether this part of the judgment of the Tribunal is correct need not detain us in this case. If the amount paid was not expenditure incurred wholly and exclusively for the purpose of the business, it is unnecessary to consider whether a "device" was adopted to provide funds in the hands of the parties at the expense of the Company for the purpose of settling their individual accounts or for some other reason. The question raised by the Tribunal for the decision of the High Court, it may be recalled, was whether there was any material on which the conclusion of the Tribunal could be justified, and in our judgment there was ample material on which the conclusion could be founded. The answer recorded by the High Court was, on the question referred by the Tribunal by their statement dated December 29, 1954, in our judgment right. The High Court was also right in declining to record formal answer on the other questions.30. No separate argument was advanced in regard to the amount of Rs.13,300/which was incurred for the costs of the arbitrator and for the arbitration proceedings. No argument was also apparently raised before the High Court supporting the claim for that amount as a permissible allowance even if the claim for Rs. 18,90,000/ | 0 | 7,789 | 1,435 | ### Instruction:
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### Input:
entering into an agreement with the company to do the functions of the managing agents. There must be something more than that and we have not the least hesitation in saying that in the present case on the facts on record there is nothing to indicate that the managing agents as such rendered any service."24. We are unable to hold that the finding that no services were rendered by the managing agents was based on "surmises and conjectures", or that it was based on no evidence.The burden of proving that services were rendered by the managing agents for earning the remuneration lay upon the Company, and if no reliable evidence was forthcoming the Tribunal was competent to reach the conclusion it did.25. The recitals in the agency agreement which authorised the managing agents to do certain acts could not be a substitute for evidence that those acts were done by the managing agents. Counsel for the Company made no effort to enlighten the Tribunal on how the business of the Company would have suffered by the quarrels between Guptas and Singhanias. Even prior to the termination of the contract of the managing agents of the Company the Singhanias had no effective voice in the management of the firm. No representative of the Singhanias was on the Board of Directors prior to the termination of the contract. If in that state of evidence the Tribunal concluded that quarrels between the Guptas and Singhanias could in no way harm or put hindrance in the normal day to day working of the Company, the finding could not be again said to be based on surmises and conjectures.26. Counsel for the Company invited our attention to the threat by the Singhanias to move the Civil Court to appoint a receiver for the management of the Company, and contended that if a receiver was appointed for management of the Company, the affairs of the company might possibly have been mismanaged. It is difficult to understand that because of the disputes between the two sets of partners of the managing agency firm, a Civil Court could have appointed a receiver to manage the affairs of the Company: a receiver may have been appointed of the remuneration payable by the Company but not of the management. It is not suggested that the affairs of the Company were mismanaged. The management of the Company was conducted after September 30, 1944, in the same manner and by the same directors as it was originally conducted. A futile threat could not reasonably be taken into consideration, and was not apparently taken into account, for determining the managing agency agreement. This plea was apparently not even suggested before the Tribunal. "27. The burden of proving that the expenditure was incurred wholly and exclusively for the purpose of the business lay upon the Company and no evidence was led and not even an attempt was made to explain how the affairs of the Company would have been prejudiced by the disputes pending between the Singhanias and Guptas.28. The remuneration payable under the managing agency agreement was for a two-fold consideration -- (1) the services rendered by the managing agents in the promotion of the Company; and (2) for rendering services to the Company.Expenditure incurred for remunerating the persons who had promoted the Company was not in law, a revenue expenditure admissible under Section 10 (2) (xv) of the lncome-tax Act and if no services were rendered by the managing agents, the remuneration must be regarded as exclusively payable for the services rendered by the managing agents in the promotion of the Company. The expenditure could not in the circumstances be said to be made wholly and exclusively in the interest of the business of the Company.29. The Tribunal has stated in paragraph 30 of its order that under the award of Thakur Kanhaiya Singh each party had to pay the other large sums, and a device was adopted to provide funds in the hands of the parties at the expense of the Company for settling their individual accounts; and that "in preparing the scheme the authors had made an effort to reduce the tax liability of the Company by claiming the amount as a revenue deduction." The Tribunal appears to have reached this conclusion from the terms of the award of Thakur Kanhaiya Singh, the settlement between Singhanias and Guptas of the civil suit by consent decree dated January 11, 1945, by a supplementary award which provided for distribution of compensation which it was expected "would be receivable" for determination of the managing agency, and the ultimate award of Mr. K. M. Munshi which contained a mere bald decision and no reasons in support thereof. Whether this part of the judgment of the Tribunal is correct need not detain us in this case. If the amount paid was not expenditure incurred wholly and exclusively for the purpose of the business, it is unnecessary to consider whether a "device" was adopted to provide funds in the hands of the parties at the expense of the Company for the purpose of settling their individual accounts or for some other reason. The question raised by the Tribunal for the decision of the High Court, it may be recalled, was whether there was any material on which the conclusion of the Tribunal could be justified, and in our judgment there was ample material on which the conclusion could be founded. The answer recorded by the High Court was, on the question referred by the Tribunal by their statement dated December 29, 1954, in our judgment right. The High Court was also right in declining to record formal answer on the other questions.30. No separate argument was advanced in regard to the amount of Rs.13,300/which was incurred for the costs of the arbitrator and for the arbitration proceedings. No argument was also apparently raised before the High Court supporting the claim for that amount as a permissible allowance even if the claim for Rs. 18,90,000/- was disallowed.
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case may be challenged at the hearing of the reference and the Court may decline to answer the question referred pursuant to the direction of the High Court, if it did not arise out of the order of the Tribunal, or is a question of fact or is academic or could not have been raised because it was not incorporated in the application under Section 66 (1) :Commissioner ofv. Smt. Anusuya Devi, 68 ITR 750 = (AIR 1968 SC 779 ). Counsel for the Company has, therefore rightly confined himself to the question which was originally submitted by the Tribunal by order dated December 29, 1954, and has raised his argument on that question only.We are unable to hold that the finding that no services were rendered by the managing agents was based on "surmises and conjectures", or that it was based on no evidence.The burden of proving that services were rendered by the managing agents for earning the remuneration lay upon the Company, and if no reliable evidence was forthcoming the Tribunal was competent to reach the conclusion it did.25. The recitals in the agency agreement which authorised the managing agents to do certain acts could not be a substitute for evidence that those acts were done by the managing agents. Counsel for the Company made no effort to enlighten the Tribunal on how the business of the Company would have suffered by the quarrels between Guptas and Singhanias. Even prior to the termination of the contract of the managing agents of the Company the Singhanias had no effective voice in the management of the firm. No representative of the Singhanias was on the Board of Directors prior to the termination of the contract. If in that state of evidence the Tribunal concluded that quarrels between the Guptas and Singhanias could in no way harm or put hindrance in the normal day to day working of the Company, the finding could not be again said to be based on surmises andis difficult to understand that because of the disputes between the two sets of partners of the managing agency firm, a Civil Court could have appointed a receiver to manage the affairs of the Company: a receiver may have been appointed of the remuneration payable by the Company but not of the management. It is not suggested that the affairs of the Company were mismanaged. The management of the Company was conducted after September 30, 1944, in the same manner and by the same directors as it was originally conducted. A futile threat could not reasonably be taken into consideration, and was not apparently taken into account, for determining the managing agency agreement. This plea was apparently not even suggested before the Tribunal. "27. The burden of proving that the expenditure was incurred wholly and exclusively for the purpose of the business lay upon the Company and no evidence was led and not even an attempt was made to explain how the affairs of the Company would have been prejudiced by the disputes pending between the Singhanias and Guptas.28. The remuneration payable under the managing agency agreement was for a) the services rendered by the managing agents in the promotion of the Company; and (2) for rendering services to the Company.Expenditure incurred for remunerating the persons who had promoted the Company was not in law, a revenue expenditure admissible under Section 10 (2) (xv) of theAct and if no services were rendered by the managing agents, the remuneration must be regarded as exclusively payable for the services rendered by the managing agents in the promotion of the Company. The expenditure could not in the circumstances be said to be made wholly and exclusively in the interest of the business of the Company.29. The Tribunal has stated in paragraph 30 of its order that under the award of Thakur Kanhaiya Singh each party had to pay the other large sums, and a device was adopted to provide funds in the hands of the parties at the expense of the Company for settling their individual accounts; and that "in preparing the scheme the authors had made an effort to reduce the tax liability of the Company by claiming the amount as a revenue deduction." The Tribunal appears to have reached this conclusion from the terms of the award of Thakur Kanhaiya Singh, the settlement between Singhanias and Guptas of the civil suit by consent decree dated January 11, 1945, by a supplementary award which provided for distribution of compensation which it was expected "would be receivable" for determination of the managing agency, and the ultimate award of Mr. K. M. Munshi which contained a mere bald decision and no reasons in support thereof. Whether this part of the judgment of the Tribunal is correct need not detain us in this case. If the amount paid was not expenditure incurred wholly and exclusively for the purpose of the business, it is unnecessary to consider whether a "device" was adopted to provide funds in the hands of the parties at the expense of the Company for the purpose of settling their individual accounts or for some other reason. The question raised by the Tribunal for the decision of the High Court, it may be recalled, was whether there was any material on which the conclusion of the Tribunal could be justified, and in our judgment there was ample material on which the conclusion could be founded. The answer recorded by the High Court was, on the question referred by the Tribunal by their statement dated December 29, 1954, in our judgment right. The High Court was also right in declining to record formal answer on the other questions.30. No separate argument was advanced in regard to the amount of Rs.13,300/which was incurred for the costs of the arbitrator and for the arbitration proceedings. No argument was also apparently raised before the High Court supporting the claim for that amount as a permissible allowance even if the claim for Rs. 18,90,000/
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Sayyed M. Masud Vs. Union of India & Another | 1. Criminal Miscellaneous Petition No. 10934/2012 in Writ Petition (Crl.) No. 57 of 2011: Criminal Miscellaneous Petition No. 10934 of 2012 has been filed on behalf of the Union of India in the instant writ petition for modification/vacation of the interim Order passed by this Court in the writ petition on 11th March, 2011 Sayyed M. Maud v. Union of India, WP (Cri.) 57 of 2011, order dated 11-3-2011 (SC) wherein it was directed: "Issue notice and tag with WP (Cri.) No. 46 of 2010. In the meantime, the petitioner shall not be arrested in connection with File No. T-1/90/B/2009/AD (MBD) RKP/ECIR/65/MZO/2010." 2. The writ petition had been filed, inter alia, on the question as to whether an offence Under Section 135 of the Customs Act, 1962, would be bailable. The same will be evident from Paragraph (1) of the writ petition. However, in the writ petition itself reference has also been made to investigation undertaken under the provisions of the Foreign Exchange Management Act, 1999, and the Prevention of Money Laundering Act, 2002, as far as the Petitioner and his Company, M/s. City Limouzines (India) Limited, were concerned. of course, the main prayer in the writ petition was for the issuance of a writ of mandamus to declare the offence under Section 135(1) of the Customs Act, 1962 as a bailable offence, which question was, at that point of time, pending determination in Writ Petition (Crl.) No. 74 of 2010, titled as Choith Nanikram Harchandani v. Union of India, (2011) 14 SCC 1 WP (Cri.) No. 74 of 2010, decided 30-9-2011 (SC) sub nom Om Prakash v. Union of India, (2011) 14 SCC 1 : (2011) 11 Scale 310 : (2012) 3 SCC (Cri) 1249 It may be indicated that, subsequently, in Om Prakash v. Union of India, (2011) 14 SCC 1 : (2012) 3 SCC (Cri.) 1249 : (2011) 11 Scale 310. this Court held that the offences under the Customs Act were bailable. 3. It is on the basis of such averments and submissions made that we were given the impression that the alleged offences in respect of which the writ petition had been filed were confined to the provisions of the Customs Act alone. However, in the petition for stay of arrest, the Petitioner prayed for stay of arrest in connection with the subject-matter of File No. T-119-B/2009/AD (MDB) RKP//ECIR/65/MZO/2010. Having regard to the context in which the writ petition was alleged to have been moved, we had, by our Order of 11th March, 2011, Sayyed M. Maud v. Union of India, WP (Cri.) 57 of 2011, order dated 11-3-2011 (SC) stayed the arrest of the Petitioner in connection with the subject-matter of the said file, presuming that the same would be relating to the offences under the Customs Act, 1962. 4. However, in the petition for vacating the said interim order, it has now been brought to our notice that the subject-matter of the said file has nothing to do with the offences under the Customs Act but under the provisions of the Foreign Exchange Management Act, 1999, and Prevention of Money Laundering Act, 2002, referred to hereinabove, in respect of which we have not expressed any opinion regarding the bailability of offences thereunder. 5. The subject-matt | 1[ds]3. It is on the basis of such averments and submissions made that we were given the impression that the alleged offences in respect of which the writ petition had been filed were confined to the provisions of the Customs Act alone. However, in the petition for stay of arrest, the Petitioner prayed for stay of arrest in connection with theof File No.(MDB) RKP//ECIR/65/MZO/2010. Having regard to the context in which the writ petition was alleged to have been moved, we had, by our Order of 11th March, 2011, Sayyed M. Maud v. Union of India, WP (Cri.) 57 of 2011, order dated(SC) stayed the arrest of the Petitioner in connection with theof the said file, presuming that the same would be relating to the offences under the Customs Act, 1962.However, in the petition for vacating the said interim order, it has now been brought to our notice that theof the said file has nothing to do with the offences under the Customs Act but under the provisions of the Foreign Exchange Management Act, 1999, and Prevention of Money Laundering Act, 2002, referred to hereinabove, in respect of which we have not expressed any opinion regarding the bailability of offences thereunder. | 1 | 668 | 236 | ### Instruction:
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1. Criminal Miscellaneous Petition No. 10934/2012 in Writ Petition (Crl.) No. 57 of 2011: Criminal Miscellaneous Petition No. 10934 of 2012 has been filed on behalf of the Union of India in the instant writ petition for modification/vacation of the interim Order passed by this Court in the writ petition on 11th March, 2011 Sayyed M. Maud v. Union of India, WP (Cri.) 57 of 2011, order dated 11-3-2011 (SC) wherein it was directed: "Issue notice and tag with WP (Cri.) No. 46 of 2010. In the meantime, the petitioner shall not be arrested in connection with File No. T-1/90/B/2009/AD (MBD) RKP/ECIR/65/MZO/2010." 2. The writ petition had been filed, inter alia, on the question as to whether an offence Under Section 135 of the Customs Act, 1962, would be bailable. The same will be evident from Paragraph (1) of the writ petition. However, in the writ petition itself reference has also been made to investigation undertaken under the provisions of the Foreign Exchange Management Act, 1999, and the Prevention of Money Laundering Act, 2002, as far as the Petitioner and his Company, M/s. City Limouzines (India) Limited, were concerned. of course, the main prayer in the writ petition was for the issuance of a writ of mandamus to declare the offence under Section 135(1) of the Customs Act, 1962 as a bailable offence, which question was, at that point of time, pending determination in Writ Petition (Crl.) No. 74 of 2010, titled as Choith Nanikram Harchandani v. Union of India, (2011) 14 SCC 1 WP (Cri.) No. 74 of 2010, decided 30-9-2011 (SC) sub nom Om Prakash v. Union of India, (2011) 14 SCC 1 : (2011) 11 Scale 310 : (2012) 3 SCC (Cri) 1249 It may be indicated that, subsequently, in Om Prakash v. Union of India, (2011) 14 SCC 1 : (2012) 3 SCC (Cri.) 1249 : (2011) 11 Scale 310. this Court held that the offences under the Customs Act were bailable. 3. It is on the basis of such averments and submissions made that we were given the impression that the alleged offences in respect of which the writ petition had been filed were confined to the provisions of the Customs Act alone. However, in the petition for stay of arrest, the Petitioner prayed for stay of arrest in connection with the subject-matter of File No. T-119-B/2009/AD (MDB) RKP//ECIR/65/MZO/2010. Having regard to the context in which the writ petition was alleged to have been moved, we had, by our Order of 11th March, 2011, Sayyed M. Maud v. Union of India, WP (Cri.) 57 of 2011, order dated 11-3-2011 (SC) stayed the arrest of the Petitioner in connection with the subject-matter of the said file, presuming that the same would be relating to the offences under the Customs Act, 1962. 4. However, in the petition for vacating the said interim order, it has now been brought to our notice that the subject-matter of the said file has nothing to do with the offences under the Customs Act but under the provisions of the Foreign Exchange Management Act, 1999, and Prevention of Money Laundering Act, 2002, referred to hereinabove, in respect of which we have not expressed any opinion regarding the bailability of offences thereunder. 5. The subject-matt
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3. It is on the basis of such averments and submissions made that we were given the impression that the alleged offences in respect of which the writ petition had been filed were confined to the provisions of the Customs Act alone. However, in the petition for stay of arrest, the Petitioner prayed for stay of arrest in connection with theof File No.(MDB) RKP//ECIR/65/MZO/2010. Having regard to the context in which the writ petition was alleged to have been moved, we had, by our Order of 11th March, 2011, Sayyed M. Maud v. Union of India, WP (Cri.) 57 of 2011, order dated(SC) stayed the arrest of the Petitioner in connection with theof the said file, presuming that the same would be relating to the offences under the Customs Act, 1962.However, in the petition for vacating the said interim order, it has now been brought to our notice that theof the said file has nothing to do with the offences under the Customs Act but under the provisions of the Foreign Exchange Management Act, 1999, and Prevention of Money Laundering Act, 2002, referred to hereinabove, in respect of which we have not expressed any opinion regarding the bailability of offences thereunder.
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Chand Kumar Kapur Vs. Chief Settlement Commissioner Punjab and Others | cut of 50% before the hierarchy of rehabilitation authorities and moved the High Court by filing a writ petition. When that writ petition was dismissed, special leave was obtained from this Court and the Court found that after coming into force of the 1954 Act and the Notification made on March 24, 1955, under s. 12 of the Act, the lands already allotted to displaced persons ceased to be evacuee property and had become part of the pool created under the 1954 Act. Power was not available to be exercised under the 1950 Act.Subsequently steps were taken to enforce the curt and a writ petition was moved before the High Court. When the single judge dismissed the petition, and appeal was taken to the Division Bench and four contentions were advanced on behalf of t he appellant and cach one was negatived and the appeal was dismissed. It may be stated that appeal was heard along with 19 others raising common questions of fact and law. Against this confirming decision of the Division Bench, leave having bee n obtained from this Court, the present appeal has been filed. 3. Admittedly, the lands allotted to the appellant in village Kotla are close to the Municipal limits of the town of Jullundur and this being a question of fact, has not rightly been disputed before us. The High Court has found:"It deserves notice that the proceedings for the enhancement of the valuation of the land of the village and the consequent raising of the cut to 50 per cent were initiated as early as the year 1951. After due verification by the subordinate Rehabilitation Authorities by actual visits on the spot, the proposal to enhance the cut was finally approved by the Director General of Rehabilitation and subsequently received the seal of approval by the order of the Governor on the 3rd February 1952. The significant fact is that sub- clause (6) of rule 14 on which main reliance is being placed was substituted for the old sub-rule by notification No. S.R.O. 1290 dated the 22nd July 1952.....It would thus appear that at the time when the proceedings were initiated and the final order dated the 3rd February 1952, was passed, the relevant provisions of sub-clause (6) of rule 14 were not yet on the statute book and the action taken prior to their promulgation was thus perfectly valid and in accordance with law. The order dated the 3rd of February 1952. therefore, did not have to conform to a provision which has been introduced subsequently. It was not the contention of the learned counsel that sub-clause (6) above said is to take effect retrospectively nor do we find anything in the said rule to accord any such effect to the same." On the aforesaid finding the High Court held that the scheme stood altered. 4. We approve of this view taken by the High Court. Strong reliance had been placed by appellants counsel on Basant Ram v. Union of India, Hukum chand etc. v. Union of India &Ors (2) and Hoshnak Singh v. Union of India &Ors(3). In Basant Rams case this Court decided that the approval of the Central Government on the basis of which the Notification of March 24, 1955 had been made was misconceived inasmuch as with the coming into force of the 1954 Act the Administration of Evacuee Property Act, 1950 (Central Act 31 Of 1950) stood repealed and the evacuee property, subject to the Act of 1950, had become a part of the compensation pool under the Act of 1954. We agree with the analysis of that decision by the High Court. So far as the second case is concerned, the question that fell for consideration was whet her rules framed by it could be made given retrospective operation by the Central Government when the statute either expressly or by necessary implication had not authorised rules to be made with retrospective effect. So far as the last case is concerned, the facts which gave rise to the dispute were very different and the ratio thereof has no application to the present set of facts. 5. In dealing with a matter of this type the broad perspective of the scheme has to be kept in view . People who were uprooted from Pakistan and became displaced persons were to be compensated on the footing that they had left behind lands in Pakistan and lands of people who had left India for Pakistan had become evacuee property and the compensation to the displaced persons could be by settlement of such lands. In a case of his type no one can look for undue enrichment. Once it is held as a fact that the properties are semi- urban and admittedly this had not been kept in vie w when original allotment had been made it should always be possible to make an adjustment. Such an adjustment is just and fair. It is appropriate to take note of a very significant feature, namely, there were 117 allottees in these villages which we re declared sub-urban and 97 of these allottees paid the extra premium, and were allowed to acquire the entire land given to them, Twenty allottees including the appellant took steps to challenge the decision regarding levy of premium as also cut in the allotments. There is no justification as to why any differential treatment should be shown to these twenty allottees particularly when all the 117 allottees stood at par so far as the application of the decision contained in the order dated February 3, 1952 is concerned. We do not know if under the changed circumstance the same benefit is available to be extended to the appellant now, viz., permitting him to pay the extra premium at present. More than 30 years have passed and with the passage of such a length of time changed situations must have come to prevail. We see no justification to accept the appeal, and allow the benefit claimed by the appellant. | 0[ds]In dealing with a matter of this type the broad perspective of the scheme has to be kept in view . People who were uprooted from Pakistan and became displaced persons were to be compensated on the footing that they had left behind lands in Pakistan and lands of people who had left India for Pakistan had become evacuee property and the compensation to the displaced persons could be by settlement of such lands. In a case of his type no one can look for undue enrichment. Once it is held as a fact that the properties are semi- urban and admittedly this had not been kept in vie w when original allotment had been made it should always be possible to make an adjustment. Such an adjustment is just and fair. It is appropriate to take note of a very significant feature, namely, there were 117 allottees in these villages which we re declared sub-urban and 97 of these allottees paid the extra premium, and were allowed to acquire the entire land given to them, Twenty allottees including the appellant took steps to challenge the decision regarding levy of premium as also cut in the allotments. There is no justification as to why any differential treatment should be shown to these twenty allottees particularly when all the 117 allottees stood at par so far as the application of the decision contained in the order dated February 3, 1952 is concerned. We do not know if under the changed circumstance the same benefit is available to be extended to the appellant now, viz., permitting him to pay the extra premium at present. More than 30 years have passed and with the passage of such a length of time changed situations must have come to prevail. We see no justification to accept the appeal, and allow the benefit claimed by the appellant. But our dismissal of the appeal should not preclude the respondent authorities from entertaining the offer by the appellant, if made, to pay the extra premium and/or any further demand with a view to obtaining a lawful settlement of the entire property without cut on the basis of the initial allotment. | 0 | 1,420 | 386 | ### 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:
cut of 50% before the hierarchy of rehabilitation authorities and moved the High Court by filing a writ petition. When that writ petition was dismissed, special leave was obtained from this Court and the Court found that after coming into force of the 1954 Act and the Notification made on March 24, 1955, under s. 12 of the Act, the lands already allotted to displaced persons ceased to be evacuee property and had become part of the pool created under the 1954 Act. Power was not available to be exercised under the 1950 Act.Subsequently steps were taken to enforce the curt and a writ petition was moved before the High Court. When the single judge dismissed the petition, and appeal was taken to the Division Bench and four contentions were advanced on behalf of t he appellant and cach one was negatived and the appeal was dismissed. It may be stated that appeal was heard along with 19 others raising common questions of fact and law. Against this confirming decision of the Division Bench, leave having bee n obtained from this Court, the present appeal has been filed. 3. Admittedly, the lands allotted to the appellant in village Kotla are close to the Municipal limits of the town of Jullundur and this being a question of fact, has not rightly been disputed before us. The High Court has found:"It deserves notice that the proceedings for the enhancement of the valuation of the land of the village and the consequent raising of the cut to 50 per cent were initiated as early as the year 1951. After due verification by the subordinate Rehabilitation Authorities by actual visits on the spot, the proposal to enhance the cut was finally approved by the Director General of Rehabilitation and subsequently received the seal of approval by the order of the Governor on the 3rd February 1952. The significant fact is that sub- clause (6) of rule 14 on which main reliance is being placed was substituted for the old sub-rule by notification No. S.R.O. 1290 dated the 22nd July 1952.....It would thus appear that at the time when the proceedings were initiated and the final order dated the 3rd February 1952, was passed, the relevant provisions of sub-clause (6) of rule 14 were not yet on the statute book and the action taken prior to their promulgation was thus perfectly valid and in accordance with law. The order dated the 3rd of February 1952. therefore, did not have to conform to a provision which has been introduced subsequently. It was not the contention of the learned counsel that sub-clause (6) above said is to take effect retrospectively nor do we find anything in the said rule to accord any such effect to the same." On the aforesaid finding the High Court held that the scheme stood altered. 4. We approve of this view taken by the High Court. Strong reliance had been placed by appellants counsel on Basant Ram v. Union of India, Hukum chand etc. v. Union of India &Ors (2) and Hoshnak Singh v. Union of India &Ors(3). In Basant Rams case this Court decided that the approval of the Central Government on the basis of which the Notification of March 24, 1955 had been made was misconceived inasmuch as with the coming into force of the 1954 Act the Administration of Evacuee Property Act, 1950 (Central Act 31 Of 1950) stood repealed and the evacuee property, subject to the Act of 1950, had become a part of the compensation pool under the Act of 1954. We agree with the analysis of that decision by the High Court. So far as the second case is concerned, the question that fell for consideration was whet her rules framed by it could be made given retrospective operation by the Central Government when the statute either expressly or by necessary implication had not authorised rules to be made with retrospective effect. So far as the last case is concerned, the facts which gave rise to the dispute were very different and the ratio thereof has no application to the present set of facts. 5. In dealing with a matter of this type the broad perspective of the scheme has to be kept in view . People who were uprooted from Pakistan and became displaced persons were to be compensated on the footing that they had left behind lands in Pakistan and lands of people who had left India for Pakistan had become evacuee property and the compensation to the displaced persons could be by settlement of such lands. In a case of his type no one can look for undue enrichment. Once it is held as a fact that the properties are semi- urban and admittedly this had not been kept in vie w when original allotment had been made it should always be possible to make an adjustment. Such an adjustment is just and fair. It is appropriate to take note of a very significant feature, namely, there were 117 allottees in these villages which we re declared sub-urban and 97 of these allottees paid the extra premium, and were allowed to acquire the entire land given to them, Twenty allottees including the appellant took steps to challenge the decision regarding levy of premium as also cut in the allotments. There is no justification as to why any differential treatment should be shown to these twenty allottees particularly when all the 117 allottees stood at par so far as the application of the decision contained in the order dated February 3, 1952 is concerned. We do not know if under the changed circumstance the same benefit is available to be extended to the appellant now, viz., permitting him to pay the extra premium at present. More than 30 years have passed and with the passage of such a length of time changed situations must have come to prevail. We see no justification to accept the appeal, and allow the benefit claimed by the appellant.
### Response:
0
### Explanation:
In dealing with a matter of this type the broad perspective of the scheme has to be kept in view . People who were uprooted from Pakistan and became displaced persons were to be compensated on the footing that they had left behind lands in Pakistan and lands of people who had left India for Pakistan had become evacuee property and the compensation to the displaced persons could be by settlement of such lands. In a case of his type no one can look for undue enrichment. Once it is held as a fact that the properties are semi- urban and admittedly this had not been kept in vie w when original allotment had been made it should always be possible to make an adjustment. Such an adjustment is just and fair. It is appropriate to take note of a very significant feature, namely, there were 117 allottees in these villages which we re declared sub-urban and 97 of these allottees paid the extra premium, and were allowed to acquire the entire land given to them, Twenty allottees including the appellant took steps to challenge the decision regarding levy of premium as also cut in the allotments. There is no justification as to why any differential treatment should be shown to these twenty allottees particularly when all the 117 allottees stood at par so far as the application of the decision contained in the order dated February 3, 1952 is concerned. We do not know if under the changed circumstance the same benefit is available to be extended to the appellant now, viz., permitting him to pay the extra premium at present. More than 30 years have passed and with the passage of such a length of time changed situations must have come to prevail. We see no justification to accept the appeal, and allow the benefit claimed by the appellant. But our dismissal of the appeal should not preclude the respondent authorities from entertaining the offer by the appellant, if made, to pay the extra premium and/or any further demand with a view to obtaining a lawful settlement of the entire property without cut on the basis of the initial allotment.
|
State Of Gujarat Etc Vs. Vakhtsinghji Sursinghji Vaghela & Ors. Etc | exceptional character, business premises in which the business could be carried on under special conditions or by means of a special licence) that there was no market or general demand for such property; and a market value deducted from the income derived would not constitute a fair basis in assessing the value to the owner."13. The measure of compensation for lands or premises taken under the Lands Clauses Act, 1845 was their value to the owner. In spe cial cases reinstatement value enabling the owner to replace the lands or premises taken from him was taken to be the correct measure of this value. This principle was later enacted in Rule 5 of Section 2 of Acquisition of Land (Assessment of Compensation) Act, 1919 which is now replaced by Rule 5 of Section 5 of the Land Compensation Act, 1961. In Raja Vyricherla Gajapatiraju v. Revenue Divisional Officer, Vizagapatnam, 66 Ind App 104 at p. 113 = (AIR 1939 PC 98 at p. 101), Lord Romer said that the general principles for determining compensation under Section 23 of the Land Acquisition Act, 1894 did not differ in any material respect from those upon which compensation was awarded under the Lands Clauses Act of 1845. In Harish Chandra Neogy v. Secretary of State for India, (1907) 11 Cal WN 875 and Province of West Bengal v. Raja Jhargram, AIR 1955 Cal 392 it was suggested that in special cases the reinstatement value may be awarded as compensation under Section 23 of the Land Acquisition Act.For the purpose of this case it is sufficient to say that this method should not be adopted where the market value deduced from the income derived from the lands would fairly compensate the owner and in no case can reinstatement value be given unless reinstatement in some other place is bona fide intended. The High Court found that there was no intention to reinstate the bunds. The owners could be fairly compensated by giving the market value deduced from the estimate yield. The High Court rightly rejected the reinstatement method. The value of irrigational bunds, tanks, and wells is not what they cost but what they paid in annual income. The High Court rightly adopted the yield basis of valuation. The Himayat assessment and water rates did not give the correct yield. The High Court therefore directed further inquiries into this claim.14. The next claim for compensation is with regard to river and river beds. The Collector and the Tribunal rejected this claim but the High Court allowed it and directed further inquiries. The State of Gujarat challenges this ruling. Now the taluqdars had no property in running water. They were the owners of the river beds but the submerged river beds were of no value to them.Counsel for the taluqdars therefore conceded that the High Courts ruling cannot be supported. Before us they confined their claim under this head to Bhathas formed in the rivers and other portions of the river beds where cross could be raised during some parts of the year particularly during summer. Counsel for the State did not oppose further inquiries into this limited claim for compensation. We therefore set aside the directions of the High Court in respect of river and river beds. We direct the Special Deputy Collector to inquire into the claim for compensation for Bhathas, if any, formed in the rivers, and other portions, it any, of the river beds where crops could be raised.15. Counsel for the taluqdars sought to challenge the findings of the High Court with regard to compensations for unbuilt village sites, trees, sim roads and non-irrigational tanks and wells. We find no error of principle in the award of compensation under these heads. There is no ground for our interference in respect of these claims.16. Mr. Bindra submitted that S. l2 of the Abolition Act makes the decision of the Tribunal final and conclusive and the High Court had no jurisdiction to interfere with this decision, particularly in respect of solatium of 15 per centum and non-irrigational bunds, tanks and wells. We are unable to accept this contention. Article 227 of the Constitution gives the High Court the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any Act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate tribunal within the limits of their authority and seeing that they obey the law. It was the duty of the Revenue Tribunal to award compensation to the Taluqdars in accordance with the provisions of Sections 7 and 14 of the Act. The High Court had jurisdiction to revise the decision of the Tribunal where the Tribunal on a misreading of the provisions of Sections 7 and 14 declined to do what was by those provisions of law incumbent on it to do. Tested in this light it does not appear that the High Court exceeded its jurisdiction under Article 227 in revising the decision of the Tribunal in respect of the solatium and irrigational bunds tanks and wells. Numerous cases were pending before the Revenue Tribunal in respect of compensation payable to the taluqdars under the Bombay Taluqdari Tenure Abolition Act. To prevent miscarriage of justice it was necessary for the High Court to lay down general principles on which compensation should be assessed so that the Tribunal may act within the limits of their authority. On finding that the Tribunal had misconceived its duties under Ss. 7 and 14, the High Court could not only set aside its decision, but also direct it to make further inquiries after taking evidence.As pointed out in Hari Vishnu Kamath v. Syed Ahmed Ishaque, 1955-1 SCR 1104 at p. 1120 -(AIR 1955 SC 233 at pp. 242-243) the High Court in the exercise of its supervisory jurisdiction under Article 227 cannot only annul the decision of the Tribunal but can also issue further direction in the matter.17. | 0[ds]It will be noticed that the Zamindar in that case was bound to pay only the fixed land revenue for the period of 19 years and thereafter until a new settlement was made. The increase in land revenue made by the 1939 Act affected this right. Nevertheless it was held that the increase in land revenue did not involve any right in or over any immovable property.The case of the taluqdars in the present case is weaker. Their right to pay the jama only while the old settlements remained in force was not affected by Section 5. The increase in land revenue on the expiry of those settlements was not due to any change in ownership. The enhanced assessment did not affect any contractual or statutory right vested in them. Even assuming that it modified or extinguished any right, such modification or extinguishment did not amount to transference to public ownership of land or any right in or over land within the meaning of Section 14 of the Bombay Taluqdari Tenure Abolition Act.The Collector, the Revenue Tribunal and the High Court therefore rightly rejected the claim of the taluqdars for compensation for the difference in the jama and the full assessment.9.Section 7 (1) gives compensation to taluqdars for extinguishment of rights in any property under Section 6. The Collector is required by Section 7 (1) (b) to make an award in the manner prescribed in Section 11 ofthe Land Acquisition Act, 1894. The Collector has to make an award of compensation under Section 11 and having regard to Sec. 15 in determining the amount of compensation, he is guided by the provisions of Sections 23 and 24. Section 23 (1) requires an award of the market value of the land. Section 23 (2) requires an additional award of a sum of fifteen per centum on such market value, in consideration of the compulsory nature of acquisition.It follows that under Section 7 (1) (b) of the Abolition Act read with section 11 of the Land Acquisition Act, the taluqdars are entitled to receive as compensation the market value of all rights in any property extinguished under Section 6 and in addition a sum of 15 per centum on such market value. This right is subject to the conditions and exceptions enumerated in sub clauses (i), (ii) and (iii) of Section 7 (l) (b). In cases falling under clause (i) and in some cases under clause (ii) the amount of compensation is limited. In cases falling under Clause (iii) and in some cases under Clause (ii) the amount of compensation is the "market value" which according to the explanation to Section 7 (1) means the value estimated in accordance with Sections 23 and 24 of the, Land Acquisition Act, 1894. The value so determined includes the solatium of 15 per centum payable under sub-section (2) of Section 23. Where the legislature intended to exclude the application of sub-section (2) of Section 23, it has said so, as in section 14 (2) under which compensation is determined in accordance with the provisions of sub-section (1) of Sections 23 and 24. It follows that the taluqdar is entitled to the solatium of 15 per centum on the market value, (1) under the main part of Section 7 (1) (b) subject to the provisions the several sub-clauses thereof; (2) in cases falling under Clause (iii) of Section 7 (1) (b) and (3) in cases under Clause (ii) of S. 7 (1) (b) where market value is awarded. The direction of the High Court is modifiedour opinion both these contentions should be rejected. The duty of the Collector is to award the "market value".The market value is the amount which the land if sold in the open market by a willing seller might be expected to realise. In the case of land the market value is generally ascertained on a consideration of the prices obtained by sale of adjacent lands with similar advantages. Where there are no sales of comparable lands, the value must be found in some other way. One method is to take the annual income which the owner is expected to obtain from the land and to capitalise it by a number of years purchase. The capitalised value is then taken as the market value which a willing vendor might reasonably expect to obtain from a willing buyer.The measure of compensation for lands or premises taken under the Lands Clauses Act, 1845 was their value to the owner. In spe cial cases reinstatement value enabling the owner to replace the lands or premises taken from him was taken to be the correct measure of this value. This principle was later enacted in Rule 5 of Section 2 of Acquisition of Land (Assessment of Compensation) Act, 1919 which is now replaced by Rule 5 of Section 5 of the Land Compensation Act, 1961. In Raja Vyricherla Gajapatiraju v. Revenue Divisional Officer, Vizagapatnam, 66 Ind App 104 at p. 113 = (AIR 1939 PC 98 at p. 101), Lord Romer said that the general principles for determining compensation under Section 23 ofthe Land Acquisition Act, 1894 did not differ in any material respect from those upon which compensation was awarded under the Lands Clauses Act of 1845. In Harish Chandra Neogy v. Secretary of State for India, (1907) 11 Cal WN 875 and Province of West Bengal v. Raja Jhargram, AIR 1955 Cal 392 it was suggested that in special cases the reinstatement value may be awarded as compensation under Section 23 of the Land Acquisition Act.For the purpose of this case it is sufficient to say that this method should not be adopted where the market value deduced from the income derived from the lands would fairly compensate the owner and in no case can reinstatement value be given unless reinstatement in some other place is bona fide intended. The High Court found that there was no intention to reinstate the bunds. The owners could be fairly compensated by giving the market value deduced from the estimate yield. The High Court rightly rejected the reinstatement method. The value of irrigational bunds, tanks, and wells is not what they cost but what they paid in annual income. The High Court rightly adopted the yield basis of valuation. The Himayat assessment and water rates did not give the correct yield. The High Court therefore directed further inquiries into thisare unable to accept this contention. Article 227 of the Constitution gives the High Court the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any Act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate tribunal within the limits of their authority and seeing that they obey the law. It was the duty of the Revenue Tribunal to award compensation to the Taluqdars in accordance with the provisions of Sections 7 and 14 of the Act. The High Court had jurisdiction to revise the decision of the Tribunal where the Tribunal on a misreading of the provisions of Sections 7 and 14 declined to do what was by those provisions of law incumbent on it to do. Tested in this light it does not appear that the High Court exceeded its jurisdiction under Article 227 in revising the decision of the Tribunal in respect of the solatium and irrigational bunds tanks and wells. Numerous cases were pending before the Revenue Tribunal in respect of compensation payable to the taluqdars under the Bombay Taluqdari Tenure Abolition Act. To prevent miscarriage of justice it was necessary for the High Court to lay down general principles on which compensation should be assessed so that the Tribunal may act within the limits of their authority. On finding that the Tribunal had misconceived its duties under Ss. 7 and 14, the High Court could not only set aside its decision, but also direct it to make further inquiries after taking evidence.As pointed out in Hari Vishnu Kamath v. Syed Ahmed Ishaque, 1955-1 SCR 1104 at p. 1120 -(AIR 1955 SC 233 at pp. 242-243) the High Court in the exercise of its supervisory jurisdiction under Article 227 cannot only annul the decision of the Tribunal but can also issue further direction in the matter. | 0 | 5,352 | 1,540 | ### Instruction:
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### Input:
exceptional character, business premises in which the business could be carried on under special conditions or by means of a special licence) that there was no market or general demand for such property; and a market value deducted from the income derived would not constitute a fair basis in assessing the value to the owner."13. The measure of compensation for lands or premises taken under the Lands Clauses Act, 1845 was their value to the owner. In spe cial cases reinstatement value enabling the owner to replace the lands or premises taken from him was taken to be the correct measure of this value. This principle was later enacted in Rule 5 of Section 2 of Acquisition of Land (Assessment of Compensation) Act, 1919 which is now replaced by Rule 5 of Section 5 of the Land Compensation Act, 1961. In Raja Vyricherla Gajapatiraju v. Revenue Divisional Officer, Vizagapatnam, 66 Ind App 104 at p. 113 = (AIR 1939 PC 98 at p. 101), Lord Romer said that the general principles for determining compensation under Section 23 of the Land Acquisition Act, 1894 did not differ in any material respect from those upon which compensation was awarded under the Lands Clauses Act of 1845. In Harish Chandra Neogy v. Secretary of State for India, (1907) 11 Cal WN 875 and Province of West Bengal v. Raja Jhargram, AIR 1955 Cal 392 it was suggested that in special cases the reinstatement value may be awarded as compensation under Section 23 of the Land Acquisition Act.For the purpose of this case it is sufficient to say that this method should not be adopted where the market value deduced from the income derived from the lands would fairly compensate the owner and in no case can reinstatement value be given unless reinstatement in some other place is bona fide intended. The High Court found that there was no intention to reinstate the bunds. The owners could be fairly compensated by giving the market value deduced from the estimate yield. The High Court rightly rejected the reinstatement method. The value of irrigational bunds, tanks, and wells is not what they cost but what they paid in annual income. The High Court rightly adopted the yield basis of valuation. The Himayat assessment and water rates did not give the correct yield. The High Court therefore directed further inquiries into this claim.14. The next claim for compensation is with regard to river and river beds. The Collector and the Tribunal rejected this claim but the High Court allowed it and directed further inquiries. The State of Gujarat challenges this ruling. Now the taluqdars had no property in running water. They were the owners of the river beds but the submerged river beds were of no value to them.Counsel for the taluqdars therefore conceded that the High Courts ruling cannot be supported. Before us they confined their claim under this head to Bhathas formed in the rivers and other portions of the river beds where cross could be raised during some parts of the year particularly during summer. Counsel for the State did not oppose further inquiries into this limited claim for compensation. We therefore set aside the directions of the High Court in respect of river and river beds. We direct the Special Deputy Collector to inquire into the claim for compensation for Bhathas, if any, formed in the rivers, and other portions, it any, of the river beds where crops could be raised.15. Counsel for the taluqdars sought to challenge the findings of the High Court with regard to compensations for unbuilt village sites, trees, sim roads and non-irrigational tanks and wells. We find no error of principle in the award of compensation under these heads. There is no ground for our interference in respect of these claims.16. Mr. Bindra submitted that S. l2 of the Abolition Act makes the decision of the Tribunal final and conclusive and the High Court had no jurisdiction to interfere with this decision, particularly in respect of solatium of 15 per centum and non-irrigational bunds, tanks and wells. We are unable to accept this contention. Article 227 of the Constitution gives the High Court the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any Act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate tribunal within the limits of their authority and seeing that they obey the law. It was the duty of the Revenue Tribunal to award compensation to the Taluqdars in accordance with the provisions of Sections 7 and 14 of the Act. The High Court had jurisdiction to revise the decision of the Tribunal where the Tribunal on a misreading of the provisions of Sections 7 and 14 declined to do what was by those provisions of law incumbent on it to do. Tested in this light it does not appear that the High Court exceeded its jurisdiction under Article 227 in revising the decision of the Tribunal in respect of the solatium and irrigational bunds tanks and wells. Numerous cases were pending before the Revenue Tribunal in respect of compensation payable to the taluqdars under the Bombay Taluqdari Tenure Abolition Act. To prevent miscarriage of justice it was necessary for the High Court to lay down general principles on which compensation should be assessed so that the Tribunal may act within the limits of their authority. On finding that the Tribunal had misconceived its duties under Ss. 7 and 14, the High Court could not only set aside its decision, but also direct it to make further inquiries after taking evidence.As pointed out in Hari Vishnu Kamath v. Syed Ahmed Ishaque, 1955-1 SCR 1104 at p. 1120 -(AIR 1955 SC 233 at pp. 242-243) the High Court in the exercise of its supervisory jurisdiction under Article 227 cannot only annul the decision of the Tribunal but can also issue further direction in the matter.17.
### Response:
0
### Explanation:
(l) (b). In cases falling under clause (i) and in some cases under clause (ii) the amount of compensation is limited. In cases falling under Clause (iii) and in some cases under Clause (ii) the amount of compensation is the "market value" which according to the explanation to Section 7 (1) means the value estimated in accordance with Sections 23 and 24 of the, Land Acquisition Act, 1894. The value so determined includes the solatium of 15 per centum payable under sub-section (2) of Section 23. Where the legislature intended to exclude the application of sub-section (2) of Section 23, it has said so, as in section 14 (2) under which compensation is determined in accordance with the provisions of sub-section (1) of Sections 23 and 24. It follows that the taluqdar is entitled to the solatium of 15 per centum on the market value, (1) under the main part of Section 7 (1) (b) subject to the provisions the several sub-clauses thereof; (2) in cases falling under Clause (iii) of Section 7 (1) (b) and (3) in cases under Clause (ii) of S. 7 (1) (b) where market value is awarded. The direction of the High Court is modifiedour opinion both these contentions should be rejected. The duty of the Collector is to award the "market value".The market value is the amount which the land if sold in the open market by a willing seller might be expected to realise. In the case of land the market value is generally ascertained on a consideration of the prices obtained by sale of adjacent lands with similar advantages. Where there are no sales of comparable lands, the value must be found in some other way. One method is to take the annual income which the owner is expected to obtain from the land and to capitalise it by a number of years purchase. The capitalised value is then taken as the market value which a willing vendor might reasonably expect to obtain from a willing buyer.The measure of compensation for lands or premises taken under the Lands Clauses Act, 1845 was their value to the owner. In spe cial cases reinstatement value enabling the owner to replace the lands or premises taken from him was taken to be the correct measure of this value. This principle was later enacted in Rule 5 of Section 2 of Acquisition of Land (Assessment of Compensation) Act, 1919 which is now replaced by Rule 5 of Section 5 of the Land Compensation Act, 1961. In Raja Vyricherla Gajapatiraju v. Revenue Divisional Officer, Vizagapatnam, 66 Ind App 104 at p. 113 = (AIR 1939 PC 98 at p. 101), Lord Romer said that the general principles for determining compensation under Section 23 ofthe Land Acquisition Act, 1894 did not differ in any material respect from those upon which compensation was awarded under the Lands Clauses Act of 1845. In Harish Chandra Neogy v. Secretary of State for India, (1907) 11 Cal WN 875 and Province of West Bengal v. Raja Jhargram, AIR 1955 Cal 392 it was suggested that in special cases the reinstatement value may be awarded as compensation under Section 23 of the Land Acquisition Act.For the purpose of this case it is sufficient to say that this method should not be adopted where the market value deduced from the income derived from the lands would fairly compensate the owner and in no case can reinstatement value be given unless reinstatement in some other place is bona fide intended. The High Court found that there was no intention to reinstate the bunds. The owners could be fairly compensated by giving the market value deduced from the estimate yield. The High Court rightly rejected the reinstatement method. The value of irrigational bunds, tanks, and wells is not what they cost but what they paid in annual income. The High Court rightly adopted the yield basis of valuation. The Himayat assessment and water rates did not give the correct yield. The High Court therefore directed further inquiries into thisare unable to accept this contention. Article 227 of the Constitution gives the High Court the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any Act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate tribunal within the limits of their authority and seeing that they obey the law. It was the duty of the Revenue Tribunal to award compensation to the Taluqdars in accordance with the provisions of Sections 7 and 14 of the Act. The High Court had jurisdiction to revise the decision of the Tribunal where the Tribunal on a misreading of the provisions of Sections 7 and 14 declined to do what was by those provisions of law incumbent on it to do. Tested in this light it does not appear that the High Court exceeded its jurisdiction under Article 227 in revising the decision of the Tribunal in respect of the solatium and irrigational bunds tanks and wells. Numerous cases were pending before the Revenue Tribunal in respect of compensation payable to the taluqdars under the Bombay Taluqdari Tenure Abolition Act. To prevent miscarriage of justice it was necessary for the High Court to lay down general principles on which compensation should be assessed so that the Tribunal may act within the limits of their authority. On finding that the Tribunal had misconceived its duties under Ss. 7 and 14, the High Court could not only set aside its decision, but also direct it to make further inquiries after taking evidence.As pointed out in Hari Vishnu Kamath v. Syed Ahmed Ishaque, 1955-1 SCR 1104 at p. 1120 -(AIR 1955 SC 233 at pp. 242-243) the High Court in the exercise of its supervisory jurisdiction under Article 227 cannot only annul the decision of the Tribunal but can also issue further direction in the matter.
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R. Santhankumar Nadar Vs. Indian Bank Ltd., Madras & Ors | the property has been sold without any notice to him. But if there has been no fraud or collusion in the matter, he has no cause for complaint. Our attention was, however, drawn to a decision of the Bombay High Court in Muncherji Furdoonji Mehta v. Noor Mahomedbhoy Jairajbhoy Pirbhoy, (1893) ILR 17 Bom 711 at p. 715, and it was contended on the strength thereof that an assignee from a mortgagor must be served with a notice of sale if he is to be bound thereby. The facts there were as follows. The defendants in the suit before the Bombay High Court were the first mortgagees. The plaintiffs were puisne mortgagees of the property. The property had been advertised for sale by the defendants several times before the plaintiffs took any step in the matter. In April 1893, the defendants advertised the mortgaged property for sale and the plaintiffs filed a suit and obtained a rule nisi with an interim injunction restraining the defendants from proceeding with the sale. It was contended on behalf of the plaintiffs that the defendants had no power to sell at all because the mortgage-deed provided that notice should be given to the mortgagors or their assigns and the defendants had not given notice to the plaintiffs who were assigns of the equity of redemption. It was, however, found that the defendants had given a notice of sale to the mortgagors on August 31, 1891 three days before the plaintiffs had any interest in the equity of redemption and Starling, J., who decided the case observed :-"...as that appears to me to be a proper notice, I do not think that any further notice would be required to be given to any person who at that time was not an assign, in order to enable the defendants to sell under that notice; because I am of opinion that an assign must take things in the State in which he finds them, and cannot claim to alter rights, which have accrued before he has any authority to interfere." Commenting on this case, the learned commentators of Mullas Transfer of Property Act (Fifth Edition) at page 500 state:"If the mortgagor has transferred his interest, either to a purchaser or to a subsequent mortgagee, and the mortgagee is aware of it, he should give notice to the transferee, but not if the transfer has taken place after the mortgagee has already given notice to the mortgagor." Learned counsel appearing on behalf of the appellant wanted to press this observation into service by saying that as his client had purchased a portion of the property by a registered deed two years prior to the notice of sale it was incumbent on the mortgagee to give him a notice. This contention cannot be accepted. It will be noticed that in the Bombay case there was no reference to S. 69 of the Transfer of Property Act or the powers of the mortgagee thereunder. Moreover, the mortgage-deed in that case expressly provided for notice being given to the mortgagors or their assigns. In the present case, the mortgagors had not parted will their entire interest in the property. At best the appellant stood in the shoes of the mortgagors with respect to a portion of the property. He knew of the power of sale contained in the mortgage-deed and that is why he wanted to safeguard himself against such sale by insertion of a clause for indemnity. 4. The English decision in Hoole v. Smith, (1881) 17 Ch D 434, referred to in the above Bombay judgment does not help the appellant before us. In that case the mortgage-deed provided that the power of sale was not to be exercised unless and until notice had been given in writing to the mortgagor, his executors, administrators or assigns to pay off the moneys for the time being due and owning on the said indenture of mortgage. Fry, J. observed in that case:"When I find the word "assigns" used in the power of sale as an alternative for Harrison, it is impossible that I can hold that it was sufficient for the Defendants to go on serving Harrison alone after he had assigned his equity of redemption. The object of the proviso was that any, assigns might be at liberty to intervene and pay off the mortgage, and no one could be more interested shall the second mortgagee in this right of intervention.? 5. The only other point raised on behalf of the appellant was that he was entitled to the value of the improvements effected by him on the portion of the property purchased under the provisions of S. 51 of the Transfer of Property Act. In our opinion, that section can have no manner of application to the facts of this case. Under that section, a transferee of immovable property making any improvement therein, believing in good faith that he is absolutely entitled thereto has a right to require the person subsequently evicting him therefrom on the strength of a better title, to have the value of the improvement estimated and paid or secured to him or to purchase his interest in the property at the then market value there of. In this case there can be no question of the appellant believing that he was absolutely entitled to the property. He knew that he was purchasing a small portion of it and that his vendors stood to lose the property unless they paid up the mortgage money on receipt of notice from the mortgagee. As already mentioned, the appellant wanted to safe guard himself against such an eventuality by the insertion of a clause in his deed of sale and the Court directed the setting apart of Rs. 9,000 from out of the sale proceeds for the purpose. We do not think that the case referred to by the learned counsel Narayana Rao v. Basavarayappa, AIR 1956 SC 727 , has any application to the facts of this case. | 0[ds]3. The point that the sale under the provisions of the mortgage-deed was invalid because of want of notice to the 16th defendant is not one of substanceThe language of this sub-section is clear and unambiguous. The section lays down in no uncertain terms that the requisite notice may be given to the mortgagor or one of several mortgagors where there is a number of them, the obvious idea being that the mortgagor who is given the notice is constituted the agent of the other mortgagors to receive the same. It may be hard on a person in the position of a mortgagor to get no notice under this section if he comes to learn that the property has been sold without any notice to him. But if there has been no fraud or collusion in the matter, he has no cause for complaintThis contention cannot be accepted. It will be noticed that in the Bombay case there was no reference to S. 69 of the Transfer of Property Act or the powers of the mortgagee thereunder. Moreover, the mortgage-deed in that case expressly provided for notice being given to the mortgagors or their assigns. In the present case, the mortgagors had not parted will their entire interest in the property. At best the appellant stood in the shoes of the mortgagors with respect to a portion of the property. He knew of the power of sale contained in the mortgage-deed and that is why he wanted to safeguard himself against such sale by insertion of a clause for indemnityIn our opinion, that section can have no manner of application to the facts of this case. Under that section, a transferee of immovable property making any improvement therein, believing in good faith that he is absolutely entitled thereto has a right to require the person subsequently evicting him therefrom on the strength of a better title, to have the value of the improvement estimated and paid or secured to him or to purchase his interest in the property at the then market value there of. In this case there can be no question of the appellant believing that he was absolutely entitled to the property. He knew that he was purchasing a small portion of it and that his vendors stood to lose the property unless they paid up the mortgage money on receipt of notice from the mortgagee. As already mentioned, the appellant wanted to safe guard himself against such an eventuality by the insertion of a clause in his deed of sale and the Court directed the setting apart of Rs. 9,000 from out of the sale proceeds for the purpose. We do not think that the case referred to by the learned counsel Narayana Rao v. Basavarayappa, AIR 1956 SC 727 , has any application to the facts of this case. | 0 | 2,036 | 505 | ### Instruction:
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the property has been sold without any notice to him. But if there has been no fraud or collusion in the matter, he has no cause for complaint. Our attention was, however, drawn to a decision of the Bombay High Court in Muncherji Furdoonji Mehta v. Noor Mahomedbhoy Jairajbhoy Pirbhoy, (1893) ILR 17 Bom 711 at p. 715, and it was contended on the strength thereof that an assignee from a mortgagor must be served with a notice of sale if he is to be bound thereby. The facts there were as follows. The defendants in the suit before the Bombay High Court were the first mortgagees. The plaintiffs were puisne mortgagees of the property. The property had been advertised for sale by the defendants several times before the plaintiffs took any step in the matter. In April 1893, the defendants advertised the mortgaged property for sale and the plaintiffs filed a suit and obtained a rule nisi with an interim injunction restraining the defendants from proceeding with the sale. It was contended on behalf of the plaintiffs that the defendants had no power to sell at all because the mortgage-deed provided that notice should be given to the mortgagors or their assigns and the defendants had not given notice to the plaintiffs who were assigns of the equity of redemption. It was, however, found that the defendants had given a notice of sale to the mortgagors on August 31, 1891 three days before the plaintiffs had any interest in the equity of redemption and Starling, J., who decided the case observed :-"...as that appears to me to be a proper notice, I do not think that any further notice would be required to be given to any person who at that time was not an assign, in order to enable the defendants to sell under that notice; because I am of opinion that an assign must take things in the State in which he finds them, and cannot claim to alter rights, which have accrued before he has any authority to interfere." Commenting on this case, the learned commentators of Mullas Transfer of Property Act (Fifth Edition) at page 500 state:"If the mortgagor has transferred his interest, either to a purchaser or to a subsequent mortgagee, and the mortgagee is aware of it, he should give notice to the transferee, but not if the transfer has taken place after the mortgagee has already given notice to the mortgagor." Learned counsel appearing on behalf of the appellant wanted to press this observation into service by saying that as his client had purchased a portion of the property by a registered deed two years prior to the notice of sale it was incumbent on the mortgagee to give him a notice. This contention cannot be accepted. It will be noticed that in the Bombay case there was no reference to S. 69 of the Transfer of Property Act or the powers of the mortgagee thereunder. Moreover, the mortgage-deed in that case expressly provided for notice being given to the mortgagors or their assigns. In the present case, the mortgagors had not parted will their entire interest in the property. At best the appellant stood in the shoes of the mortgagors with respect to a portion of the property. He knew of the power of sale contained in the mortgage-deed and that is why he wanted to safeguard himself against such sale by insertion of a clause for indemnity. 4. The English decision in Hoole v. Smith, (1881) 17 Ch D 434, referred to in the above Bombay judgment does not help the appellant before us. In that case the mortgage-deed provided that the power of sale was not to be exercised unless and until notice had been given in writing to the mortgagor, his executors, administrators or assigns to pay off the moneys for the time being due and owning on the said indenture of mortgage. Fry, J. observed in that case:"When I find the word "assigns" used in the power of sale as an alternative for Harrison, it is impossible that I can hold that it was sufficient for the Defendants to go on serving Harrison alone after he had assigned his equity of redemption. The object of the proviso was that any, assigns might be at liberty to intervene and pay off the mortgage, and no one could be more interested shall the second mortgagee in this right of intervention.? 5. The only other point raised on behalf of the appellant was that he was entitled to the value of the improvements effected by him on the portion of the property purchased under the provisions of S. 51 of the Transfer of Property Act. In our opinion, that section can have no manner of application to the facts of this case. Under that section, a transferee of immovable property making any improvement therein, believing in good faith that he is absolutely entitled thereto has a right to require the person subsequently evicting him therefrom on the strength of a better title, to have the value of the improvement estimated and paid or secured to him or to purchase his interest in the property at the then market value there of. In this case there can be no question of the appellant believing that he was absolutely entitled to the property. He knew that he was purchasing a small portion of it and that his vendors stood to lose the property unless they paid up the mortgage money on receipt of notice from the mortgagee. As already mentioned, the appellant wanted to safe guard himself against such an eventuality by the insertion of a clause in his deed of sale and the Court directed the setting apart of Rs. 9,000 from out of the sale proceeds for the purpose. We do not think that the case referred to by the learned counsel Narayana Rao v. Basavarayappa, AIR 1956 SC 727 , has any application to the facts of this case.
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3. The point that the sale under the provisions of the mortgage-deed was invalid because of want of notice to the 16th defendant is not one of substanceThe language of this sub-section is clear and unambiguous. The section lays down in no uncertain terms that the requisite notice may be given to the mortgagor or one of several mortgagors where there is a number of them, the obvious idea being that the mortgagor who is given the notice is constituted the agent of the other mortgagors to receive the same. It may be hard on a person in the position of a mortgagor to get no notice under this section if he comes to learn that the property has been sold without any notice to him. But if there has been no fraud or collusion in the matter, he has no cause for complaintThis contention cannot be accepted. It will be noticed that in the Bombay case there was no reference to S. 69 of the Transfer of Property Act or the powers of the mortgagee thereunder. Moreover, the mortgage-deed in that case expressly provided for notice being given to the mortgagors or their assigns. In the present case, the mortgagors had not parted will their entire interest in the property. At best the appellant stood in the shoes of the mortgagors with respect to a portion of the property. He knew of the power of sale contained in the mortgage-deed and that is why he wanted to safeguard himself against such sale by insertion of a clause for indemnityIn our opinion, that section can have no manner of application to the facts of this case. Under that section, a transferee of immovable property making any improvement therein, believing in good faith that he is absolutely entitled thereto has a right to require the person subsequently evicting him therefrom on the strength of a better title, to have the value of the improvement estimated and paid or secured to him or to purchase his interest in the property at the then market value there of. In this case there can be no question of the appellant believing that he was absolutely entitled to the property. He knew that he was purchasing a small portion of it and that his vendors stood to lose the property unless they paid up the mortgage money on receipt of notice from the mortgagee. As already mentioned, the appellant wanted to safe guard himself against such an eventuality by the insertion of a clause in his deed of sale and the Court directed the setting apart of Rs. 9,000 from out of the sale proceeds for the purpose. We do not think that the case referred to by the learned counsel Narayana Rao v. Basavarayappa, AIR 1956 SC 727 , has any application to the facts of this case.
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M.N. Aryamurthy and Anr Vs. M.D. Subbaraya Setty through L. R. and Ors | other had started their own new business and one had no concern with the other. It is true that, although the defendants did new business, that new business continued to have the old names. The books of account were freshly opened for the same and we feel no difficulty in agreeing with the concurrent findings of both the courts that the business carried on by the defendants from 11-7-1940 in the name of Lachiah Setty and Sons and Giri Coffee Works was a new business having no connection with the old family business which had come to an end. The directions given by the Arbitrators on 11-7-1940, to which the parties had agreed, were to the effect that, from 11-7-1940 onwards, the defendants shall be entitled to the profits made in the business and will be also liable for the losses in that business. In other words, the business was defendants own after 11-7-1940 and the plaintiff would have no concern with it. The High Court has held that the Arbitrators had intended to close the family business and divide the stock-in-trade leaving to the parties to carry on business, if they so chose, on their own exclusive responsibility.17. That being the position, the question arises whether the defendants would, in law, be liable to account to the plaintiff for the profits earned by the defendants in their own business or for the acquisition made by them in that business. We agree with the High Court that they were not so liable. On a partition by severance of the joint status, the members of the family become tenants-in-common of the family property. If one of the members remains in possession of the entire properties of the family, there is no presumption that the property, which is acquired by him after severance of the status, must be regarded as acquired for the family. Where rents and profits are received by the member in possession, he would be liable to account for the rents and profits received by him. But the funds in the hands of that member do not become impressed with any trust in favour of the other members. Therefore, if such a member acquired some property with the funds in his possession, the other members could claim on share in that property, Hence we agree with the High Court that the business carried on by the defendants on and after 11-7-1940 should be considered as the exclusive business of the defendants, and the plaintiffs would have no right to claim any share in the profits or the acquisitions made out of that business. What is true about this business carried on by the defendants is also true of the business carried on by the plaintiff. The defendants have not claimed and cannot claim any a share in the business run by the plaintiff after 11-7-1940 or in the profits and acquisitions made by him in that business. This finding, however, is not to be understood to mean that the securities and stock-in-trade already referred to are not to be taken into account as family assets for the purpose of partition, nor can the parties decline the liability to account to each other for the income derived by them from the family assets in their possession.18. We have dealt with all the points raised in the course of the arguments before us and, in our view, the findings of the High Court are quite unexceptionable. The appeals must, therefore, fail. It was, however, brought to our notice that the wording of the decree as passed by the High Court is likely to be mis-interpreted and misconstrued at the time of execution and, hence the same should be properly clarified, We, therefore, propose to substitute a decree, as under, for the decree passed by the High Court:"(1) It is declared that the original plaintiff Nagappa (now his heirs brought on record) was entitled to a 2/19th share in the joint family properties and liable for a similar share in the joint family liabilities.(2) The joint family properties, as mentioned in the suit, shall comprise all the movable and immovable properties including stocks, shares and valuable securities in the possession and control of the plaintiff and defendants 1 to 9 as on 11/07/1940. The family liabilities as on that date shall be ascertained with a view to determine the net assets. The plaintiff shall have 2/19th share in the same.(3) The parties are liable to account for the rents, income, profits and dividends received by them after 11-7-1940 till the date of final partition in respect of the joint family partition in respect of the joint family properties in their respective possession on and after 11-7-1940. If, on taking accounts, the plaintiffs are found to have received less for their 2/19th share in such rents, income, profits and dividends, the deficiency shall be made good by the defendants. IT is, however, clarified that the parties are not accountable for the profits or acquisitions made in the course of the separate business or businesses carried on by the parties after 11-7-140. The business carried on by the defendants in the name of "lachiah Setty and Sons" and "giri Coffee Works" is to be regarded, after 11-7-1940, as the separate business of the defendants.(4) The plaintiffs shall be put in separate possession of the properties coming to their share on partition by metes and bounds. The partition shall be effected by a Commissioner appointed by the Court in respect of all properties not required under the law to be partitioned by the Deputy Commissioner. In respect of properties, partition of which is required under the law to be effected by the Deputy Commissioner, the partition shall be effected by the Deputy Commissioner or his Subordinate Gazetted Officer. The present possession of the parties shall be respected as far as possible.(5) The order of costs made by the High Court is confirmed and the appellants shall pay the costs of the respondents in these appeals."19. | 0[ds]8. On reading the document as a whole, there can be hardly any doubt that Lachiah was wanting to make a will. It was drafted by his family lawyer. The whole form of the document is of a will. It is attested by two witnesses. Executors are appointed and a number of bequests have been made which were to take effect after his death. In the beginning and at the end, Lachiah described the document as his Will which he was making in his old age, while in good mental state. The will shows his awareness that, if the family properties were regarded as joint family properties, he would not be in a position to make any disposition of the same by a will. So, although two of his the elder sons had contributed largely to the family acquisitions, all those acquisitions, he insisted, were hisproperties, over which, he claimed, he had absolute power of disposition. As a matter of fact, if the properties as claimed by him had beenthere is no doubt that the document would have absolutely operated as the last will and testament of Lechiah Setty. But unfortunately, Lachiah, though a father, could not, under the Hindu Law, dispose of, by will, joint family property or any part thereof and as a will, it was clearly inoperative on the various dispositions made by him. Subarami Reddi v. Ramamma. ILR 43 Mad 824 = (AIR 1920 Mad 637 ). This latter case has questioned the correctness of a previous decision of that Court in Appan Patra Chariar v. V. S. Srinivasa Chariar ILR 40 Mad 1122 = (AIR 1918 Mad 531 ). The decisions proceed on the principle which wasin Vital Putten v. Yamenamma (1874) 8 Mad HCR 6 and Lakshman Dada Naik v. Ramachandra Dada Naik, (1879) ILR 5 Bom 48 (PC) that a coparcener cannot devise joint family property by will, because, on the date of his death when the will takes effect, there is nothing for the will to operate on, as, at the moment of his death, his interest passes by survivorship to the otherWill here does not show that there was any occasion for making a family arrangement. The Will itself discloses that all the sons were on amicable terms, there were no distensions, no contrary claims and no reasonably anticipated disharmony. On the other hand, the father exhorts the sons to continue to remain joint and undivided for the greater glory of the family as one unit. It is true that in para 20 he states that all his children had solicited him to make suggestions with a view that no differences orshould arise amongst themselves. But that is only a manner of speaking, because such foreboding of differences andare inherent in every joint family. In the absence of any evidence of even a whisper of disharmony in the family, the statement that the children had solicited him to make suggestions is, to our minds, only a flourish. But what is important to note is that the father does not propose a partition or a servance of statute. On the contrary, he exhorts the sons to live united as members of a joint family on the same cordial terms which prevailed till then. A father in a Mitakhshara joint family has the undoubted right to divide the family property at any moment during his life. Whether his sons consent or do not consent to the division. The only limitation on his power is that the division directed by him must be a fair one in which he gives his son an equal share with himself. The will does not show that he wanted to exercise any such power and, since a partition was very far from his mind, he merely made his own "suggestions" as to what he would regard as proper if, in some remote future, as proper if, in some remote future, the members of the family thought about severance of status. These suggestions, if acted upon, would have given plaintiff Nagappa a 4 anna share defendant No 1 a 2 anna share and his wife Rukminiamma a 2 anna share, while the other eight sons would have got only an anna share each. This would have been a very unequal partition. Two of the sons would have got much more than they were entitled to on a partition and the mother, who was not entitled under the Hindu Law as it prevailed in Mysore in 1933 to any share on partition in the family, would have got 2 annawas suggested in the course of arguments that the will was acted upon and reference was made to certain payments alleged to have been made in pursuance of the fathers directions. Both the Courts have found that the will was not acted upon and we see no good reason to take a different view. In our opinion, the High Court was right in holding that the document Ext. AA was inoperative as a will and ineffective as a family arrangement.15. The learned trial Judge thought that the plaintiffs share in the family property was 1/9th, but the High Court, for reasons which are not challenged before us in the arguments has come to the conclusion that the plaintiffs correct share would be 2/19th. We agree with thatis true that, although the defendants did new business, that new business continued to have the old names. The books of account were freshly opened for the same and we feel no difficulty in agreeing with the concurrent findings of both the courts that the business carried on by the defendants fromin the name of Lachiah Setty and Sons and Giri Coffee Works was a new business having no connection with the old family business which had come to an end. The directions given by the Arbitrators onto which the parties had agreed, were to the effect that, fromonwards, the defendants shall be entitled to the profits made in the business and will be also liable for the losses in that business. In other words, the business was defendants own afterand the plaintiff would have no concern with it. The High Court has held that the Arbitrators had intended to close the family business and divide theleaving to the parties to carry on business, if they so chose, on their own exclusiveagree with the High Court that they were not so liable. On a partition by severance of the joint status, the members of the family becomeof the family property. If one of the members remains in possession of the entire properties of the family, there is no presumption that the property, which is acquired by him after severance of the status, must be regarded as acquired for the family. Where rents and profits are received by the member in possession, he would be liable to account for the rents and profits received by him. But the funds in the hands of that member do not become impressed with any trust in favour of the other members. Therefore, if such a member acquired some property with the funds in his possession, the other members could claim on share in that property, Hence we agree with the High Court that the business carried on by the defendants on and aftershould be considered as the exclusive business of the defendants, and the plaintiffs would have no right to claim any share in the profits or the acquisitions made out of that business. What is true about this business carried on by the defendants is also true of the business carried on by the plaintiff. The defendants have not claimed and cannot claim any a share in the business run by the plaintiff afteror in the profits and acquisitions made by him in that business. This finding, however, is not to be understood to mean that the securities andalready referred to are not to be taken into account as family assets for the purpose of partition, nor can the parties decline the liability to account to each other for the income derived by them from the family assets in their possession.18. We have dealt with all the points raised in the course of the arguments before us and, in our view, the findings of the High Court are quite unexceptionable. The appeals must, therefore, fail. It was, however, brought to our notice that the wording of the decree as passed by the High Court is likely to beand misconstrued at the time of execution and, hence the same should be properly clarified, We, therefore, propose to substitute a decree, as under, for the decree passed by the HighIt is declared that the original plaintiff Nagappa (now his heirs brought on record) was entitled to a 2/19th share in the joint family properties and liable for a similar share in the joint family liabilities.(2) The joint family properties, as mentioned in the suit, shall comprise all the movable and immovable properties including stocks, shares and valuable securities in the possession and control of the plaintiff and defendants 1 to 9 as on 11/07/1940. The family liabilities as on that date shall be ascertained with a view to determine the net assets. The plaintiff shall have 2/19th share in the same.(3) The parties are liable to account for the rents, income, profits and dividends received by them aftertill the date of final partition in respect of the joint family partition in respect of the joint family properties in their respective possession on and afterIf, on taking accounts, the plaintiffs are found to have received less for their 2/19th share in such rents, income, profits and dividends, the deficiency shall be made good by the defendants. IT is, however, clarified that the parties are not accountable for the profits or acquisitions made in the course of the separate business or businesses carried on by the parties afterThe business carried on by the defendants in the name of "lachiah Setty and Sons" and "giri Coffee Works" is to be regarded, afteras the separate business of the defendants.(4) The plaintiffs shall be put in separate possession of the properties coming to their share on partition by metes and bounds. The partition shall be effected by a Commissioner appointed by the Court in respect of all properties not required under the law to be partitioned by the Deputy Commissioner. In respect of properties, partition of which is required under the law to be effected by the Deputy Commissioner, the partition shall be effected by the Deputy Commissioner or his Subordinate Gazetted Officer. The present possession of the parties shall be respected as far as possible.(5) The order of costs made by the High Court is confirmed and the appellants shall pay the costs of the respondents in these appeals. | 0 | 7,819 | 1,985 | ### 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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other had started their own new business and one had no concern with the other. It is true that, although the defendants did new business, that new business continued to have the old names. The books of account were freshly opened for the same and we feel no difficulty in agreeing with the concurrent findings of both the courts that the business carried on by the defendants from 11-7-1940 in the name of Lachiah Setty and Sons and Giri Coffee Works was a new business having no connection with the old family business which had come to an end. The directions given by the Arbitrators on 11-7-1940, to which the parties had agreed, were to the effect that, from 11-7-1940 onwards, the defendants shall be entitled to the profits made in the business and will be also liable for the losses in that business. In other words, the business was defendants own after 11-7-1940 and the plaintiff would have no concern with it. The High Court has held that the Arbitrators had intended to close the family business and divide the stock-in-trade leaving to the parties to carry on business, if they so chose, on their own exclusive responsibility.17. That being the position, the question arises whether the defendants would, in law, be liable to account to the plaintiff for the profits earned by the defendants in their own business or for the acquisition made by them in that business. We agree with the High Court that they were not so liable. On a partition by severance of the joint status, the members of the family become tenants-in-common of the family property. If one of the members remains in possession of the entire properties of the family, there is no presumption that the property, which is acquired by him after severance of the status, must be regarded as acquired for the family. Where rents and profits are received by the member in possession, he would be liable to account for the rents and profits received by him. But the funds in the hands of that member do not become impressed with any trust in favour of the other members. Therefore, if such a member acquired some property with the funds in his possession, the other members could claim on share in that property, Hence we agree with the High Court that the business carried on by the defendants on and after 11-7-1940 should be considered as the exclusive business of the defendants, and the plaintiffs would have no right to claim any share in the profits or the acquisitions made out of that business. What is true about this business carried on by the defendants is also true of the business carried on by the plaintiff. The defendants have not claimed and cannot claim any a share in the business run by the plaintiff after 11-7-1940 or in the profits and acquisitions made by him in that business. This finding, however, is not to be understood to mean that the securities and stock-in-trade already referred to are not to be taken into account as family assets for the purpose of partition, nor can the parties decline the liability to account to each other for the income derived by them from the family assets in their possession.18. We have dealt with all the points raised in the course of the arguments before us and, in our view, the findings of the High Court are quite unexceptionable. The appeals must, therefore, fail. It was, however, brought to our notice that the wording of the decree as passed by the High Court is likely to be mis-interpreted and misconstrued at the time of execution and, hence the same should be properly clarified, We, therefore, propose to substitute a decree, as under, for the decree passed by the High Court:"(1) It is declared that the original plaintiff Nagappa (now his heirs brought on record) was entitled to a 2/19th share in the joint family properties and liable for a similar share in the joint family liabilities.(2) The joint family properties, as mentioned in the suit, shall comprise all the movable and immovable properties including stocks, shares and valuable securities in the possession and control of the plaintiff and defendants 1 to 9 as on 11/07/1940. The family liabilities as on that date shall be ascertained with a view to determine the net assets. The plaintiff shall have 2/19th share in the same.(3) The parties are liable to account for the rents, income, profits and dividends received by them after 11-7-1940 till the date of final partition in respect of the joint family partition in respect of the joint family properties in their respective possession on and after 11-7-1940. If, on taking accounts, the plaintiffs are found to have received less for their 2/19th share in such rents, income, profits and dividends, the deficiency shall be made good by the defendants. IT is, however, clarified that the parties are not accountable for the profits or acquisitions made in the course of the separate business or businesses carried on by the parties after 11-7-140. The business carried on by the defendants in the name of "lachiah Setty and Sons" and "giri Coffee Works" is to be regarded, after 11-7-1940, as the separate business of the defendants.(4) The plaintiffs shall be put in separate possession of the properties coming to their share on partition by metes and bounds. The partition shall be effected by a Commissioner appointed by the Court in respect of all properties not required under the law to be partitioned by the Deputy Commissioner. In respect of properties, partition of which is required under the law to be effected by the Deputy Commissioner, the partition shall be effected by the Deputy Commissioner or his Subordinate Gazetted Officer. The present possession of the parties shall be respected as far as possible.(5) The order of costs made by the High Court is confirmed and the appellants shall pay the costs of the respondents in these appeals."19.
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that the will was not acted upon and we see no good reason to take a different view. In our opinion, the High Court was right in holding that the document Ext. AA was inoperative as a will and ineffective as a family arrangement.15. The learned trial Judge thought that the plaintiffs share in the family property was 1/9th, but the High Court, for reasons which are not challenged before us in the arguments has come to the conclusion that the plaintiffs correct share would be 2/19th. We agree with thatis true that, although the defendants did new business, that new business continued to have the old names. The books of account were freshly opened for the same and we feel no difficulty in agreeing with the concurrent findings of both the courts that the business carried on by the defendants fromin the name of Lachiah Setty and Sons and Giri Coffee Works was a new business having no connection with the old family business which had come to an end. The directions given by the Arbitrators onto which the parties had agreed, were to the effect that, fromonwards, the defendants shall be entitled to the profits made in the business and will be also liable for the losses in that business. In other words, the business was defendants own afterand the plaintiff would have no concern with it. The High Court has held that the Arbitrators had intended to close the family business and divide theleaving to the parties to carry on business, if they so chose, on their own exclusiveagree with the High Court that they were not so liable. On a partition by severance of the joint status, the members of the family becomeof the family property. If one of the members remains in possession of the entire properties of the family, there is no presumption that the property, which is acquired by him after severance of the status, must be regarded as acquired for the family. Where rents and profits are received by the member in possession, he would be liable to account for the rents and profits received by him. But the funds in the hands of that member do not become impressed with any trust in favour of the other members. Therefore, if such a member acquired some property with the funds in his possession, the other members could claim on share in that property, Hence we agree with the High Court that the business carried on by the defendants on and aftershould be considered as the exclusive business of the defendants, and the plaintiffs would have no right to claim any share in the profits or the acquisitions made out of that business. What is true about this business carried on by the defendants is also true of the business carried on by the plaintiff. The defendants have not claimed and cannot claim any a share in the business run by the plaintiff afteror in the profits and acquisitions made by him in that business. This finding, however, is not to be understood to mean that the securities andalready referred to are not to be taken into account as family assets for the purpose of partition, nor can the parties decline the liability to account to each other for the income derived by them from the family assets in their possession.18. We have dealt with all the points raised in the course of the arguments before us and, in our view, the findings of the High Court are quite unexceptionable. The appeals must, therefore, fail. It was, however, brought to our notice that the wording of the decree as passed by the High Court is likely to beand misconstrued at the time of execution and, hence the same should be properly clarified, We, therefore, propose to substitute a decree, as under, for the decree passed by the HighIt is declared that the original plaintiff Nagappa (now his heirs brought on record) was entitled to a 2/19th share in the joint family properties and liable for a similar share in the joint family liabilities.(2) The joint family properties, as mentioned in the suit, shall comprise all the movable and immovable properties including stocks, shares and valuable securities in the possession and control of the plaintiff and defendants 1 to 9 as on 11/07/1940. The family liabilities as on that date shall be ascertained with a view to determine the net assets. The plaintiff shall have 2/19th share in the same.(3) The parties are liable to account for the rents, income, profits and dividends received by them aftertill the date of final partition in respect of the joint family partition in respect of the joint family properties in their respective possession on and afterIf, on taking accounts, the plaintiffs are found to have received less for their 2/19th share in such rents, income, profits and dividends, the deficiency shall be made good by the defendants. IT is, however, clarified that the parties are not accountable for the profits or acquisitions made in the course of the separate business or businesses carried on by the parties afterThe business carried on by the defendants in the name of "lachiah Setty and Sons" and "giri Coffee Works" is to be regarded, afteras the separate business of the defendants.(4) The plaintiffs shall be put in separate possession of the properties coming to their share on partition by metes and bounds. The partition shall be effected by a Commissioner appointed by the Court in respect of all properties not required under the law to be partitioned by the Deputy Commissioner. In respect of properties, partition of which is required under the law to be effected by the Deputy Commissioner, the partition shall be effected by the Deputy Commissioner or his Subordinate Gazetted Officer. The present possession of the parties shall be respected as far as possible.(5) The order of costs made by the High Court is confirmed and the appellants shall pay the costs of the respondents in these appeals.
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M/S HANDE WAVARE AND CO Vs. RAMCHANDRA VITTHAL DONGRE | firm consisting of Ramchandra Vitthal Dongre and G.V. Lohot is not separately entitled for allotment of any separate Gala. Based on the documents of the individual partners, the relevant findings of the High Court are as under:-?In my view, the license obtained by an individual partner, the booking amount, if any, paid by such individual partner, payment of cess, if any, paid by such individual partner or other requirements which individual partner is required to be fulfilled as per the norms suggested by the learned Commissioner for being eligible to allotment of such gala cannot be utilised by the partnership firm consisting of such partners to make such firm eligible for allotment of any gala under the said norms suggested by the learned Commissioner………… In my view, the documents relied upon by the petitioner for seeking allotment of the said gala No.F-158 which were the documents of individual partner of the petitioner could not be used and/or relied upon for the purpose of seeking allotment of the said gala No.F-158 in the name of the said partnership firm.?The contention of APMC is that Ramchandra Dongre has been doing business and paid money only in his individual capacity. As pointed out earlier, G.V. Lohot started business by taking licence in his name for the year 1991-92 and paid the money only in his individual capacity.48. The partnership firm was registered only in the year 2014 and the firm was neither in existence nor carried on any business prior to cut off date. The High Court, in our view, rightly rejected the contention that the registration would relate back to the date of execution of the partnership deed in the year 1987. The High Court rightly rejected the plea that the firm-M/s Ramchandra Vitthal Dongre was eligible to apply for allotment of large Gala No.F-158. Both Ramchandra Vitthal Dongre and G.V. Lohot are carrying on the business in their individual name therefore, the amount paid by the individual partners cannot be treated as the payment made by the firm and the High Court rightly held that the appellant firm M/s Ramchandra Vitthal Dongre is not entitled for a separate allotment of gala.49. After the appeal preferred by M/s Indian Fruit Co. under Section 52B of MAPMC Act which was allowed by the Director of Agricultural Marketing vide order dated 13.12.2001, the allotment of second large Gala No.F-124 in favour of Ramchandra Dongre was cancelled. Challenging the cancellation of allotment of Gala No.F-124, Ramchandra Dongre filed writ petition W.P.No.234 of 2004. It is unfortunate that the said W.P.No.234 of 2004 has been kept alive for about fifteen years. In view of the concurrent finding of Director of Agricultural Marketing dated 04.06.2014 and the findings of the High Court in the impugned judgment that M/s Ramchandra Vitthal Dongre is not eligible to claim large gala, in our view, nothing survives for consideration in W.P.No.234 of 2004 pending before the High Court of Bombay. In the light of our finding affirming the view taken by the High Court that the firm M/s Ramchandra Vitthal Dongre is not eligible to claim allotment of large gala, the High Court shall dispose of the said writ petition W.P.No.234 of 2004 by passing appropriate orders.50. In our considered view, respondent No.1-M/s Ramchandra Vitthal Dongre and respondent No.2-Habibullah Farhatullah are not eligible to claim allotment of large gala and the judgment of the High Court is liable to be set aside.51. Next question for consideration is as to who are all eligible to make claim for the allotment of large gala. In view of the foregoing discussion, the appellants-M/s Hande Wavare & Co. and Ganpat Shinde (who are marginally short of the norms) are eligible to claim allotment of large gala along with others. As per the counter filed by APMC in writ petition W.P.No.10328 of 2014, other than appellant-M/s Hande Wavare & Co., two other claimants viz. respondent No.3-M/s Bhalchandra Chintaman Lele (Mr. Kedar Keshav Lele) and respondent No.4-Ashok Dhondiba Punde are also eligible for allotment of large gala.52. The only other point to be considered is whether the allotment to be made by sealed tenders or by draw of lottery. As seen from the order of the Director of Agricultural Marketing dated 04.06.2014, APMC initially fixed the value of said gala as per government rate at Rs.55,00,000/-. The Director of Agricultural Marketing observed that instead of accepting the amount of Rs.28,77,500/- from appellant-M/s Hande Wavare & Co., APMC should have considered the market rate and getting valued the said gala from government approved valuer and should have called for sealed covers from the claimants and ought to have allotted the gala to the claimant who is paying the maximum value for allotment of large gala. In our considered view, since there is huge competition for the large gala, instead of adopting the lottery method, after fixing the market value in order to fetch more revenue for APMC, offers should be invited in sealed covers. In order to attract better offers, it is appropriate that appellant-M/s Hande Wavare & Co. should vacate the large Gala No.F-158 at the earliest. The learned counsel appearing for APMC has stated that the small Gala No.M-821 earlier allotted to the appellant-M/s Hande Wavare & Co. is still vacant. APMC shall forthwith pass an order for re-allotting the said small sized Gala No.M-821 to the appellant- M/s Hande Wavare & Co. and the appellant shall vacate the large Gala No.F-158 before the end of September, 2019.53. Considering the fact that APMC itself has fixed the market value of large Gala No.F-158 at Rs.55,00,000/- in the year 2013-14, we deem it appropriate to fix the upset value at Rs.55,00,000/-. The four eligible claimants. viz. (i) M/s Hande Wavare and Co.; (ii) Mr. Ganpat Sabaji Shinde; (iii) M/s Bhalchandra Chintaman Lele (Mr. Kedar Keshav Lele); and (iv) Mr. Ashok Dhondiba Punde shall quote their offers in a sealed cover and accordingly, the large Gala No.F-158 be allotted to the one who is quoting the highest price. | 1[ds]17. Norms laid down by Justice Daud Committee:- In the year 1987-88, APMC had decided to shift all the subsidiary market of fruits and vegetables from Mumbai to Vashi, Navi Mumbai. In the year 1995, the construction of the said market was completed. In view of the dispute between traders in respect of the allotment of galas/shops, several petitions came to be filed before the High Court. On 26.04.1998, the High Court appointed Shri Justice S.M. Daud as a Court Commissioner to suggest the norms to allot the galas/shops in the newly constructed wholesale market at Vashi. The learned Commissioner submitted three reports which were accepted by the High Court. As pointed out earlier, the said new wholesale Fruit Market had total number of 1029 galas. Out of 1029 galas, 732 being the large galas each measuring 450 sq.ft. and 297 small galas each measuring 300 sq.ft. The Daud Committee provided for eligibility for two-time frames. The first-time frame was 1985-86 to 1994-95 and the second time frame was of 1991-92 to 1994-95.18. What is relevant for these appeals is the norms fixed by learned Commissioner for ?Fruit Market? which has 1029 galas viz. 732 large galas and 297 small galas. As earlier mentioned, the learned Commissioner submitted three reports inter-alia stipulating the norms for allotment of galas/shops in the newly constructed wholesale market. The first time frame was 1985-86 to 1994-95 and the second time frame was of 1991-92 to 1994- 95. No one would get more than three large galas and for retaining the third, the claimant would have to pay the market price within ninety days of the acceptance of the norms by the High Court.In the above facts and circumstances, it is to be considered whether the High Court was right in holding that respondent No.2- Habibullah Farhatullah is entitled for allotment of large gala without making booking of large gala before 31.12.1993 and by getting transferred booking amount of his father in his name after acceptance of new norms by the High Court.23. Claim of respondent No.2-Habibullah Farhatullah:- Respondent No.2-Habibullah applied for licence in the year 1991- 1992 in his own name and obtained licence in the year 1992. Admittedly, respondent No.2 does not fall within the first-time frame 1985-86 to 1994-95. Respondent No.2 himself did not pay any amount for booking of gala. On 04.01.1999, father of respondent No.2- Farhatullah Haji Barkatullah paid an amount of Rs.1,32,000/- as booking amount for three large galas. As per norms fixed by the learned Commissioner for allotment of three large galas, total cess payable is above Rs.3,00,000/-. Since father of respondent No.2 paid amount less than Rs.3,00,000/-, he was allotted only two large galas. In his letter dated 23.03.1999, father of respondent No.2 stated that he had paid Rs.1,32,000/- for booking of two large galas initially and that his son Habibullah started the business of fruits trade since 1991- 1992 and that he asked for booking of one large gala in the name of his son viz. respondent No.2. However, APMC did not accept the booking in the name of his son and therefore, Farhatullah Haji Barkatullah- father of respondent No.2 booked the third gala in his own name. In the said letter, father of respondent No.2 has also stated that the third gala booked in his name i.e. in the name of father of respondent No.2 may be transferred to his son- respondent No.2 and also the remaining amount be transferred to his son-respondent No.2 and that he may be allotted a large gala. Be it noted, respondent No.2 himself did not make any application for booking of any gala nor did he pay any amount for booking the gala. It is also pertinent to note that as per the norms suggested by Daud Committee, there was no scope of transfer of booking of gala and the booking amount from one person to another.24. In the application for allotment of large gala on 26.04.1999, respondent No.2 was allotted a small Gala No.M-775 by APMC which was not accepted by respondent No.2. Another application filed by respondent No.2 for allotment of large gala was rejected on 02.05.2001 against which respondent No.2 filed an Appeal No.34/2002 before the Director of Agricultural Marketing. APMC opposed the claim of respondent No.2 contending that respondent No.2 did not pay any booking amount in his name or in the name of others and therefore, the question of allotment of any large gala to him did not arise. APMC also took the stand that as per the norms fixed by the learned Commissioner, there was no scope of transfer of booking of gala and the booking amount from one person to another. By the order dated 24.09.2002, Director of Agricultural Marketing allowed the appeal preferred by respondent No.2 and directed APMC to allot large gala to him by pointing out that in fourteen other cases, booking of galas made by one person were transferred to other persons.As pointed out earlier, the Director, Marketing held that the second respondent is entitled for allotment of large gala mainly on the ground that in few other cases, gala booked in the name of one person has been transferred to another person. In the order dated 24.09.2002, the Director, Marketing has pointed out such instances where booking of gala in the name of one person has been transferred to other persons and observed that the second respondent cannot be discriminated. Merely because, in other cases, gala booked in the name of one person is transferred in the name of another person, it cannot be the reason to adopt the same irregularity in the case of the second respondent also. As held in State of Bihar v. Upendra Narayan Singh and others (2009) 5 SCC 65 , Article 14 of the Constitution of India is a positive concept and it cannot be enforced by a citizen or a court in a negative manner. If any illegality or irregularity has been committed in favour of any individual or group of individual or wrong order has been passed by a forum, the same illegality or irregularity cannot be perpetuated on the ground of discrimination or hardship. Merely because, in few other cases, gala booked in the name of one person was transferred in the name of other persons in deviation from the norms fixed by Daud Committee, in our considered view, the Director, Marketing was not right in holding that the second respondent is entitled for allotment of large gala by transfer of booking of large gala from his father- Farhatullah Haji Barkatullah to his name.29. Father of respondent No.2 though paid the booking amount of Rs.1,32,000/-, he has not paid the requisite cess amount to be eligible for the third large gala. Where report of the Daud Committee specifically fixed the norms for the traders who have paid the booking amount and traders who have not paid the booking amount distinctly, the norms cannot be compromised or diluted by allowing the traders to get the booking amount of one trader be transferred to another thereby, enabling him to claim allotment of gala which he otherwise, would not have entitled to. The High Court, in our view, did not keep in view that respondent No.2 had neither booked the gala before the cut-off date nor paid the amount and the High Court proceeded hold as to the entitlement of respondent No.2 mainly on the basis of the order dated 24.09.2002. Respondent No.2 cannot make a claim for allotment of Gala No.F-158 dehors the norms fixed by Daud Committee or otherwise, it would amount to diluting the norms fixed by Daud Committee which has been directed to be strictly followed by the High Court vide its order dated 07.05.1999 in W.P. No.2556 of 1999.There is no quarrel over the proposition laid down in the above decisions. But in the peculiar facts and circumstances of the present case, in our view, respondent No.2 cannot base his entitlement for allotment of large gala solely on the basis of the order dated 24.09.2002 of Director of Agricultural Marketing, dehors the norms fixed by Daud Committee which were directed to be strictly complied with by the High Court. In the order dated 07.05.1999 in W.P. No.2556 of 1999, when the High Court has directed APMC to make allotment of galas strictly by adhering to the norms laid down by Daud Committee, the order of Director of Agricultural Marketing dated 24.09.2002 cannot prevail over the order of the High Court. While so, the High Court, in our view, erred in holding that by the order of Director of Agricultural Marketing dated 24.09.2002, right of respondent No.2 to get large gala has been crystallised and that APMC ought to have allotted the same to respondent No.2 instead of conducting lottery amongst all the eligible claimants. The High Court erred in relying upon the above order of Director of Agricultural Marketing and directing APMC to allot the said large gala to respondent No.2 without keeping in view the norms fixed by the Daud Committee. The order dated 24.09.2002 passed by the Director of Agricultural Marketing is contrary to the norms fixed by Daud Committee. Dehors the norms fixed by Daud Committee which has been directed to be strictly complied with (vide order dated 07.05.1999 in WP No.2556/1999), respondent No.2 cannot claim entitlement for the large gala based on the said order and the order of the High Court holding that respondent No.2 is entitled to large gala cannot be sustained and is liable to be set aside qua respondent No.2.The High Court held that since Ganpat Shinde had paid only a sum of Rs.32,725/- towards booking amount and was accordingly allotted a small Gala No.M-748 in the year 1999 and that he is not entitled to claim allotment of large gala. The High Court was not right in holding that Ganpat Shinde had paid only Rs.32,725/-. It is pertinent to note that in the above communication dated 03.07.2003, APMC stated about the receipt of the payment of Rs.35,725/-. As rightly contended by senior counsel Mr. Vinay Navare, APMC for the first time by its resolution dated 17.02.2010 stated that Ganpat Shinde has paid registration booking amount of Rs.32,725/- and that Ganpat Shinde does not satisfy the norms fixed by Daud Committee requiring deposit of an amount of Rs.34,000/-.There are no norms suggested by Daud Committee making a partnership firm separately eligible for allotment of a Gala on the basis of the licence issued in the name of the individual partner, the amount paid by said individual partner towards booking of the Gala, payment of cess made by such individual partner, etc. In the absence of specific norms for the partnership firms, the norms framed for individual traders are applicable for the partnership firms. When the firm was registered in the year 2014 and it has not complied with any of the norms fixed by Daud Committed, the firm cannot seek for the allotment of any gala, much less a large gala. Considering the submissions of both the parties, in the impugned judgment, the High Court rightly held that the partnership firm consisting of Ramchandra Vitthal Dongre and G.V. Lohot is not separately entitled for allotment of any separate Gala.48. The partnership firm was registered only in the year 2014 and the firm was neither in existence nor carried on any business prior to cut off date. The High Court, in our view, rightly rejected the contention that the registration would relate back to the date of execution of the partnership deed in the year 1987. The High Court rightly rejected the plea that the firm-M/s Ramchandra Vitthal Dongre was eligible to apply for allotment of large Gala No.F-158. Both Ramchandra Vitthal Dongre and G.V. Lohot are carrying on the business in their individual name therefore, the amount paid by the individual partners cannot be treated as the payment made by the firm and the High Court rightly held that the appellant firm M/s Ramchandra Vitthal Dongre is not entitled for a separate allotment of gala.49. After the appeal preferred by M/s Indian Fruit Co. under Section 52B of MAPMC Act which was allowed by the Director of Agricultural Marketing vide order dated 13.12.2001, the allotment of second large Gala No.F-124 in favour of Ramchandra Dongre was cancelled. Challenging the cancellation of allotment of Gala No.F-124, Ramchandra Dongre filed writ petition W.P.No.234 of 2004. It is unfortunate that the said W.P.No.234 of 2004 has been kept alive for about fifteen years. In view of the concurrent finding of Director of Agricultural Marketing dated 04.06.2014 and the findings of the High Court in the impugned judgment that M/s Ramchandra Vitthal Dongre is not eligible to claim large gala, in our view, nothing survives for consideration in W.P.No.234 of 2004 pending before the High Court of Bombay. In the light of our finding affirming the view taken by the High Court that the firm M/s Ramchandra Vitthal Dongre is not eligible to claim allotment of large gala, the High Court shall dispose of the said writ petition W.P.No.234 of 2004 by passing appropriate orders.50. In our considered view, respondent No.1-M/s Ramchandra Vitthal Dongre and respondent No.2-Habibullah Farhatullah are not eligible to claim allotment of large gala and the judgment of the High Court is liable to be setview of the foregoing discussion, the appellants-M/s Hande Wavare & Co. and Ganpat Shinde (who are marginally short of the norms) are eligible to claim allotment of large gala along with others. As per the counter filed by APMC in writ petition W.P.No.10328 of 2014, other than appellant-M/s Hande Wavare & Co., two other claimants viz. respondent No.3-M/s Bhalchandra Chintaman Lele (Mr. Kedar Keshav Lele) and respondent No.4-Ashok Dhondiba Punde are also eligible for allotment of largeseen from the order of the Director of Agricultural Marketing dated 04.06.2014, APMC initially fixed the value of said gala as per government rate at Rs.55,00,000/-. The Director of Agricultural Marketing observed that instead of accepting the amount of Rs.28,77,500/- from appellant-M/s Hande Wavare & Co., APMC should have considered the market rate and getting valued the said gala from government approved valuer and should have called for sealed covers from the claimants and ought to have allotted the gala to the claimant who is paying the maximum value for allotment of large gala. In our considered view, since there is huge competition for the large gala, instead of adopting the lottery method, after fixing the market value in order to fetch more revenue for APMC, offers should be invited in sealed covers. In order to attract better offers, it is appropriate that appellant-M/s Hande Wavare & Co. should vacate the large Gala No.F-158 at the earliest. The learned counsel appearing for APMC has stated that the small Gala No.M-821 earlier allotted to the appellant-M/s Hande Wavare & Co. is still vacant. APMC shall forthwith pass an order for re-allotting the said small sized Gala No.M-821 to the appellant- M/s Hande Wavare & Co. and the appellant shall vacate the large Gala No.F-158 before the end of September, 2019.53. Considering the fact that APMC itself has fixed the market value of large Gala No.F-158 at Rs.55,00,000/- in the year 2013-14, we deem it appropriate to fix the upset value at Rs.55,00,000/-. The four eligible claimants. viz. (i) M/s Hande Wavare and Co.; (ii) Mr. Ganpat Sabaji Shinde; (iii) M/s Bhalchandra Chintaman Lele (Mr. Kedar Keshav Lele); and (iv) Mr. Ashok Dhondiba Punde shall quote their offers in a sealed cover and accordingly, the large Gala No.F-158 be allotted to the one who is quoting the highest price. | 1 | 10,198 | 2,811 | ### 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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firm consisting of Ramchandra Vitthal Dongre and G.V. Lohot is not separately entitled for allotment of any separate Gala. Based on the documents of the individual partners, the relevant findings of the High Court are as under:-?In my view, the license obtained by an individual partner, the booking amount, if any, paid by such individual partner, payment of cess, if any, paid by such individual partner or other requirements which individual partner is required to be fulfilled as per the norms suggested by the learned Commissioner for being eligible to allotment of such gala cannot be utilised by the partnership firm consisting of such partners to make such firm eligible for allotment of any gala under the said norms suggested by the learned Commissioner………… In my view, the documents relied upon by the petitioner for seeking allotment of the said gala No.F-158 which were the documents of individual partner of the petitioner could not be used and/or relied upon for the purpose of seeking allotment of the said gala No.F-158 in the name of the said partnership firm.?The contention of APMC is that Ramchandra Dongre has been doing business and paid money only in his individual capacity. As pointed out earlier, G.V. Lohot started business by taking licence in his name for the year 1991-92 and paid the money only in his individual capacity.48. The partnership firm was registered only in the year 2014 and the firm was neither in existence nor carried on any business prior to cut off date. The High Court, in our view, rightly rejected the contention that the registration would relate back to the date of execution of the partnership deed in the year 1987. The High Court rightly rejected the plea that the firm-M/s Ramchandra Vitthal Dongre was eligible to apply for allotment of large Gala No.F-158. Both Ramchandra Vitthal Dongre and G.V. Lohot are carrying on the business in their individual name therefore, the amount paid by the individual partners cannot be treated as the payment made by the firm and the High Court rightly held that the appellant firm M/s Ramchandra Vitthal Dongre is not entitled for a separate allotment of gala.49. After the appeal preferred by M/s Indian Fruit Co. under Section 52B of MAPMC Act which was allowed by the Director of Agricultural Marketing vide order dated 13.12.2001, the allotment of second large Gala No.F-124 in favour of Ramchandra Dongre was cancelled. Challenging the cancellation of allotment of Gala No.F-124, Ramchandra Dongre filed writ petition W.P.No.234 of 2004. It is unfortunate that the said W.P.No.234 of 2004 has been kept alive for about fifteen years. In view of the concurrent finding of Director of Agricultural Marketing dated 04.06.2014 and the findings of the High Court in the impugned judgment that M/s Ramchandra Vitthal Dongre is not eligible to claim large gala, in our view, nothing survives for consideration in W.P.No.234 of 2004 pending before the High Court of Bombay. In the light of our finding affirming the view taken by the High Court that the firm M/s Ramchandra Vitthal Dongre is not eligible to claim allotment of large gala, the High Court shall dispose of the said writ petition W.P.No.234 of 2004 by passing appropriate orders.50. In our considered view, respondent No.1-M/s Ramchandra Vitthal Dongre and respondent No.2-Habibullah Farhatullah are not eligible to claim allotment of large gala and the judgment of the High Court is liable to be set aside.51. Next question for consideration is as to who are all eligible to make claim for the allotment of large gala. In view of the foregoing discussion, the appellants-M/s Hande Wavare & Co. and Ganpat Shinde (who are marginally short of the norms) are eligible to claim allotment of large gala along with others. As per the counter filed by APMC in writ petition W.P.No.10328 of 2014, other than appellant-M/s Hande Wavare & Co., two other claimants viz. respondent No.3-M/s Bhalchandra Chintaman Lele (Mr. Kedar Keshav Lele) and respondent No.4-Ashok Dhondiba Punde are also eligible for allotment of large gala.52. The only other point to be considered is whether the allotment to be made by sealed tenders or by draw of lottery. As seen from the order of the Director of Agricultural Marketing dated 04.06.2014, APMC initially fixed the value of said gala as per government rate at Rs.55,00,000/-. The Director of Agricultural Marketing observed that instead of accepting the amount of Rs.28,77,500/- from appellant-M/s Hande Wavare & Co., APMC should have considered the market rate and getting valued the said gala from government approved valuer and should have called for sealed covers from the claimants and ought to have allotted the gala to the claimant who is paying the maximum value for allotment of large gala. In our considered view, since there is huge competition for the large gala, instead of adopting the lottery method, after fixing the market value in order to fetch more revenue for APMC, offers should be invited in sealed covers. In order to attract better offers, it is appropriate that appellant-M/s Hande Wavare & Co. should vacate the large Gala No.F-158 at the earliest. The learned counsel appearing for APMC has stated that the small Gala No.M-821 earlier allotted to the appellant-M/s Hande Wavare & Co. is still vacant. APMC shall forthwith pass an order for re-allotting the said small sized Gala No.M-821 to the appellant- M/s Hande Wavare & Co. and the appellant shall vacate the large Gala No.F-158 before the end of September, 2019.53. Considering the fact that APMC itself has fixed the market value of large Gala No.F-158 at Rs.55,00,000/- in the year 2013-14, we deem it appropriate to fix the upset value at Rs.55,00,000/-. The four eligible claimants. viz. (i) M/s Hande Wavare and Co.; (ii) Mr. Ganpat Sabaji Shinde; (iii) M/s Bhalchandra Chintaman Lele (Mr. Kedar Keshav Lele); and (iv) Mr. Ashok Dhondiba Punde shall quote their offers in a sealed cover and accordingly, the large Gala No.F-158 be allotted to the one who is quoting the highest price.
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had paid only a sum of Rs.32,725/- towards booking amount and was accordingly allotted a small Gala No.M-748 in the year 1999 and that he is not entitled to claim allotment of large gala. The High Court was not right in holding that Ganpat Shinde had paid only Rs.32,725/-. It is pertinent to note that in the above communication dated 03.07.2003, APMC stated about the receipt of the payment of Rs.35,725/-. As rightly contended by senior counsel Mr. Vinay Navare, APMC for the first time by its resolution dated 17.02.2010 stated that Ganpat Shinde has paid registration booking amount of Rs.32,725/- and that Ganpat Shinde does not satisfy the norms fixed by Daud Committee requiring deposit of an amount of Rs.34,000/-.There are no norms suggested by Daud Committee making a partnership firm separately eligible for allotment of a Gala on the basis of the licence issued in the name of the individual partner, the amount paid by said individual partner towards booking of the Gala, payment of cess made by such individual partner, etc. In the absence of specific norms for the partnership firms, the norms framed for individual traders are applicable for the partnership firms. When the firm was registered in the year 2014 and it has not complied with any of the norms fixed by Daud Committed, the firm cannot seek for the allotment of any gala, much less a large gala. Considering the submissions of both the parties, in the impugned judgment, the High Court rightly held that the partnership firm consisting of Ramchandra Vitthal Dongre and G.V. Lohot is not separately entitled for allotment of any separate Gala.48. The partnership firm was registered only in the year 2014 and the firm was neither in existence nor carried on any business prior to cut off date. The High Court, in our view, rightly rejected the contention that the registration would relate back to the date of execution of the partnership deed in the year 1987. The High Court rightly rejected the plea that the firm-M/s Ramchandra Vitthal Dongre was eligible to apply for allotment of large Gala No.F-158. Both Ramchandra Vitthal Dongre and G.V. Lohot are carrying on the business in their individual name therefore, the amount paid by the individual partners cannot be treated as the payment made by the firm and the High Court rightly held that the appellant firm M/s Ramchandra Vitthal Dongre is not entitled for a separate allotment of gala.49. After the appeal preferred by M/s Indian Fruit Co. under Section 52B of MAPMC Act which was allowed by the Director of Agricultural Marketing vide order dated 13.12.2001, the allotment of second large Gala No.F-124 in favour of Ramchandra Dongre was cancelled. Challenging the cancellation of allotment of Gala No.F-124, Ramchandra Dongre filed writ petition W.P.No.234 of 2004. It is unfortunate that the said W.P.No.234 of 2004 has been kept alive for about fifteen years. In view of the concurrent finding of Director of Agricultural Marketing dated 04.06.2014 and the findings of the High Court in the impugned judgment that M/s Ramchandra Vitthal Dongre is not eligible to claim large gala, in our view, nothing survives for consideration in W.P.No.234 of 2004 pending before the High Court of Bombay. In the light of our finding affirming the view taken by the High Court that the firm M/s Ramchandra Vitthal Dongre is not eligible to claim allotment of large gala, the High Court shall dispose of the said writ petition W.P.No.234 of 2004 by passing appropriate orders.50. In our considered view, respondent No.1-M/s Ramchandra Vitthal Dongre and respondent No.2-Habibullah Farhatullah are not eligible to claim allotment of large gala and the judgment of the High Court is liable to be setview of the foregoing discussion, the appellants-M/s Hande Wavare & Co. and Ganpat Shinde (who are marginally short of the norms) are eligible to claim allotment of large gala along with others. As per the counter filed by APMC in writ petition W.P.No.10328 of 2014, other than appellant-M/s Hande Wavare & Co., two other claimants viz. respondent No.3-M/s Bhalchandra Chintaman Lele (Mr. Kedar Keshav Lele) and respondent No.4-Ashok Dhondiba Punde are also eligible for allotment of largeseen from the order of the Director of Agricultural Marketing dated 04.06.2014, APMC initially fixed the value of said gala as per government rate at Rs.55,00,000/-. The Director of Agricultural Marketing observed that instead of accepting the amount of Rs.28,77,500/- from appellant-M/s Hande Wavare & Co., APMC should have considered the market rate and getting valued the said gala from government approved valuer and should have called for sealed covers from the claimants and ought to have allotted the gala to the claimant who is paying the maximum value for allotment of large gala. In our considered view, since there is huge competition for the large gala, instead of adopting the lottery method, after fixing the market value in order to fetch more revenue for APMC, offers should be invited in sealed covers. In order to attract better offers, it is appropriate that appellant-M/s Hande Wavare & Co. should vacate the large Gala No.F-158 at the earliest. The learned counsel appearing for APMC has stated that the small Gala No.M-821 earlier allotted to the appellant-M/s Hande Wavare & Co. is still vacant. APMC shall forthwith pass an order for re-allotting the said small sized Gala No.M-821 to the appellant- M/s Hande Wavare & Co. and the appellant shall vacate the large Gala No.F-158 before the end of September, 2019.53. Considering the fact that APMC itself has fixed the market value of large Gala No.F-158 at Rs.55,00,000/- in the year 2013-14, we deem it appropriate to fix the upset value at Rs.55,00,000/-. The four eligible claimants. viz. (i) M/s Hande Wavare and Co.; (ii) Mr. Ganpat Sabaji Shinde; (iii) M/s Bhalchandra Chintaman Lele (Mr. Kedar Keshav Lele); and (iv) Mr. Ashok Dhondiba Punde shall quote their offers in a sealed cover and accordingly, the large Gala No.F-158 be allotted to the one who is quoting the highest price.
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V. Ramaswami Ayyangar And Others Vs. T.N.V. Kailasa Thevar | whose appln. for relief under S.19, Madras Agriculturists Relief Act, was allowed, does not make any difference in principle. The puisne mtgee. was made a party deft. in the suit instituted by the first mtgee. to recover his dues and as the puisne mtgee. was liable to pay the debt due to the first mtgee., he was held to be a debtor and hence entitled to claim the benefit of S. 19, Agriculturists Relief. Act. It may be mentioned here that S.14, Madras Agriculturists Relief Act, which provides for separation of a debt incurred by a Hindu family, some members of which are agriculturists while other are not, affords a clear indication that the splitting up of a debt in such circumstances is quite in accordance with the scheme of the Act.11. The catena of cases upon which the learned Judges of the H.C. relied in support of their decision seem to proceed on a different principle altogether and whether that principle is right or wrong, it has, in our opinion, no application to a case like the present. In this class of cases, the mtgors. were agriculturists and hence entitled to have their debts scaled down under the Agriculturists Relief Act, but there were purchasers of the mortgaged property who were not agriculturists, and the question arose whether a purchaser could get the benefit of the debt scaled down in favour of the original debtors. This question was answered in the affirmative. The reason for taking this view was thus given by the learned Judges inArunachalam Pillai v. Seetharam Naidu,. 1941 -1 M.L. J. 561 : (A.I.R. (28) 1941 Mad. 584) where the purchase of the equity of redemption was at on execution sale:When resp. 12 purchased the properties in court auction, he took them subject to the burden of the applt.s mtge. and if the burden is by reason of the provisions of S. 8 referred to above reduced without payment, the purchase proves to that extent an advantageous one, and there is nothing in the Act to deprive him of the fruits of his lucky purchase even though he is not an agriculturist. He gets the benefit of the scaling down not because the provisions of the Act apply to him for obviously they do not, but because such benefit is a necessary incident of his purchase under the general law and the Act does not deprive him of it."12. A somewhat different reason was assigned in Satyanarayanamurthi v. Sathiraju,1942-1 M. L. J. 506 : (A. I. R. (29) 1942 Mad. 525) which however was a case where a portion of the equity of redemption was transferred to a purchaser by a private sale. It was held that the Ct. by allowing the mtgor, to redeem the mtge. sale was not conferring on the purchaser, a non-agriculturist, the benefit of the Act, as he would have to refund to his vendor the purchase money reserved with him which as a result of the scaling down he would not have to pay to the mtgee. In both these cases, the question was raised in the proceeding for scaling down of the decree under the provisions of the Agriculturists Relief Act itself and not at the execution stage. There is however the case of Subramanian v. Ramchandra,1946-2 M. L. J. 429 : (A. I. R. (34) 1947 Mad. 255) where the question arose in course of execution proceedings and a purchaser of a portion of the equity of redemption was held to be entitled to the benefit of the scaled down decree in favour of the mtgors., although his own appln. for relief under the Act was refused. It is not necessary for purposes of this case to express any opinion as to the correctness or otherwise of these decisions. It is enough to say that the ratio decidendiin all these cases is not applicable to the case before us. In the present case, there is no purchaser of the mortgaged property and consequently there is no question of the purchaser, who is not an agriculturist himself, being entitled to the benefit of a decree which has been scaled down in favour of the agriculturist mtgor. Here the judgment-debtors are the mtgors. themselves and according to the plain provisions of the Agriculturists Relief Act there could not be any objection to a decree for reduced amount being passed against an agriculturist debtor, while the same relief is not given to his co-debtors who do not fulfil that description.13. Some exception could undoubtedly be taken to the form and wording of the decree that has been passed in the present case. The decree, in our opinion, should not only have stated the amount payable by deft. 1 and that by defts, 2 to 7 separately but should have expressly directed that on payment of the amount directed to be paid by defts. 2 to 7 their interest alone in the mortgaged property would not be liable to be sold. The further direction should have been that in case they did not pay this amount, the whole of the mortgaged property including their interest would be sold for the entirety of the mtge. debt for which deft, was made liable. It is true that the decree contains no such clear directions but reading the decree as a whole and having regard to the actual decision in the case, this must be taken to be its plain implication. The subsequent agreement between the parties arrived at in course of the execution proceedings by which the decree-holders agreed to release the interest of deft. 2 and that of defts. 3 to 7 separately on payment of certain specified amounts by them proceed clearly on the assumption that the mtge. debt and the security has been split up, and in our opinion it is not possible for deft.1 to contend that the mtge. debt remained indivisible. Our conclusion is that the view taken by the Dist.,J. was right and should not have been disturbed. | 1[ds]7. It seems to us that the H. C.s approach to the case has not been a proper one and the conclusion it has reached cannot be supported in law.8. The learned Judges appear to have overlooked the fact that they were sitting only as an executing Ct. and their duty was to give effect to the terms of the decree that was already passed and beyond which they could not go. It is true that they were to interpret the decree, but under the guise of interpretation they could not make a new decree for the parties.The general law undoubtedly is that a mtge. decree is one and indivisible and. exceptions to this rule are admitted in special circumstances where the integrity of the mtge. has been disrupted at the instance of the mtgee. himself e. g., when there is severance of the interests of the mtgors. with the consent of the mtgee. or a portion of the equity of redemption is vested in the latter. It is to be noted, however, that the Madras Agriculturists Relief Act is a special statute which aims at giving relief not to debtors in general but only to a specified class of debtors, viz., those who are agriculturists as defined in the Act. To this extent it trenches upon the general law and S. 7 of the Act expressly providesany law, custom, contract or decree of Ct. to the contrary, all debts payable by an agriculturist at the commencement of this Act shall be scaled down in accordance with the provisions of thisin case of a mtge. debt when the loan has been advanced to more than one person, if one of the debtors happens to be an agriculturist while others are not, the agriculturist debtor would certainly be entitled to have his debts scaled down under the provisions of the Act in spite of the provision of general law which prevents a mtgor. from denying the liability of the interest which he owns in the mortgaged property to satisfy the entire mtge. debt. There is, therefore, nothing wrong in law in scaling down a mtge. decree in favour of one of the judgment-debtors, while as regards others the decree is kept intact.Some exception could undoubtedly be taken to the form and wording of the decree that has been passed in the present case. The decree, in our opinion, should not only have stated the amount payable by deft. 1 and that by defts, 2 to 7 separately but should have expressly directed that on payment of the amount directed to be paid by defts. 2 to 7 their interest alone in the mortgaged property would not be liable to be sold. The further direction should have been that in case they did not pay this amount, the whole of the mortgaged property including their interest would be sold for the entirety of the mtge. debt for which deft, was made liable. It is true that the decree contains no such clear directions but reading the decree as a whole and having regard to the actual decision in the case, this must be taken to be its plain implication. The subsequent agreement between the parties arrived at in course of the execution proceedings by which the decree-holders agreed to release the interest of deft. 2 and that of defts. 3 to 7 separately on payment of certain specified amounts by them proceed clearly on the assumption that the mtge. debt and the security has been split up, and in our opinion it is not possible for deft.1 to contend that the mtge. debt remained indivisible. Our conclusion is that the view taken by the Dist.,J. was right and should not have been disturbed. | 1 | 3,625 | 679 | ### 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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whose appln. for relief under S.19, Madras Agriculturists Relief Act, was allowed, does not make any difference in principle. The puisne mtgee. was made a party deft. in the suit instituted by the first mtgee. to recover his dues and as the puisne mtgee. was liable to pay the debt due to the first mtgee., he was held to be a debtor and hence entitled to claim the benefit of S. 19, Agriculturists Relief. Act. It may be mentioned here that S.14, Madras Agriculturists Relief Act, which provides for separation of a debt incurred by a Hindu family, some members of which are agriculturists while other are not, affords a clear indication that the splitting up of a debt in such circumstances is quite in accordance with the scheme of the Act.11. The catena of cases upon which the learned Judges of the H.C. relied in support of their decision seem to proceed on a different principle altogether and whether that principle is right or wrong, it has, in our opinion, no application to a case like the present. In this class of cases, the mtgors. were agriculturists and hence entitled to have their debts scaled down under the Agriculturists Relief Act, but there were purchasers of the mortgaged property who were not agriculturists, and the question arose whether a purchaser could get the benefit of the debt scaled down in favour of the original debtors. This question was answered in the affirmative. The reason for taking this view was thus given by the learned Judges inArunachalam Pillai v. Seetharam Naidu,. 1941 -1 M.L. J. 561 : (A.I.R. (28) 1941 Mad. 584) where the purchase of the equity of redemption was at on execution sale:When resp. 12 purchased the properties in court auction, he took them subject to the burden of the applt.s mtge. and if the burden is by reason of the provisions of S. 8 referred to above reduced without payment, the purchase proves to that extent an advantageous one, and there is nothing in the Act to deprive him of the fruits of his lucky purchase even though he is not an agriculturist. He gets the benefit of the scaling down not because the provisions of the Act apply to him for obviously they do not, but because such benefit is a necessary incident of his purchase under the general law and the Act does not deprive him of it."12. A somewhat different reason was assigned in Satyanarayanamurthi v. Sathiraju,1942-1 M. L. J. 506 : (A. I. R. (29) 1942 Mad. 525) which however was a case where a portion of the equity of redemption was transferred to a purchaser by a private sale. It was held that the Ct. by allowing the mtgor, to redeem the mtge. sale was not conferring on the purchaser, a non-agriculturist, the benefit of the Act, as he would have to refund to his vendor the purchase money reserved with him which as a result of the scaling down he would not have to pay to the mtgee. In both these cases, the question was raised in the proceeding for scaling down of the decree under the provisions of the Agriculturists Relief Act itself and not at the execution stage. There is however the case of Subramanian v. Ramchandra,1946-2 M. L. J. 429 : (A. I. R. (34) 1947 Mad. 255) where the question arose in course of execution proceedings and a purchaser of a portion of the equity of redemption was held to be entitled to the benefit of the scaled down decree in favour of the mtgors., although his own appln. for relief under the Act was refused. It is not necessary for purposes of this case to express any opinion as to the correctness or otherwise of these decisions. It is enough to say that the ratio decidendiin all these cases is not applicable to the case before us. In the present case, there is no purchaser of the mortgaged property and consequently there is no question of the purchaser, who is not an agriculturist himself, being entitled to the benefit of a decree which has been scaled down in favour of the agriculturist mtgor. Here the judgment-debtors are the mtgors. themselves and according to the plain provisions of the Agriculturists Relief Act there could not be any objection to a decree for reduced amount being passed against an agriculturist debtor, while the same relief is not given to his co-debtors who do not fulfil that description.13. Some exception could undoubtedly be taken to the form and wording of the decree that has been passed in the present case. The decree, in our opinion, should not only have stated the amount payable by deft. 1 and that by defts, 2 to 7 separately but should have expressly directed that on payment of the amount directed to be paid by defts. 2 to 7 their interest alone in the mortgaged property would not be liable to be sold. The further direction should have been that in case they did not pay this amount, the whole of the mortgaged property including their interest would be sold for the entirety of the mtge. debt for which deft, was made liable. It is true that the decree contains no such clear directions but reading the decree as a whole and having regard to the actual decision in the case, this must be taken to be its plain implication. The subsequent agreement between the parties arrived at in course of the execution proceedings by which the decree-holders agreed to release the interest of deft. 2 and that of defts. 3 to 7 separately on payment of certain specified amounts by them proceed clearly on the assumption that the mtge. debt and the security has been split up, and in our opinion it is not possible for deft.1 to contend that the mtge. debt remained indivisible. Our conclusion is that the view taken by the Dist.,J. was right and should not have been disturbed.
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7. It seems to us that the H. C.s approach to the case has not been a proper one and the conclusion it has reached cannot be supported in law.8. The learned Judges appear to have overlooked the fact that they were sitting only as an executing Ct. and their duty was to give effect to the terms of the decree that was already passed and beyond which they could not go. It is true that they were to interpret the decree, but under the guise of interpretation they could not make a new decree for the parties.The general law undoubtedly is that a mtge. decree is one and indivisible and. exceptions to this rule are admitted in special circumstances where the integrity of the mtge. has been disrupted at the instance of the mtgee. himself e. g., when there is severance of the interests of the mtgors. with the consent of the mtgee. or a portion of the equity of redemption is vested in the latter. It is to be noted, however, that the Madras Agriculturists Relief Act is a special statute which aims at giving relief not to debtors in general but only to a specified class of debtors, viz., those who are agriculturists as defined in the Act. To this extent it trenches upon the general law and S. 7 of the Act expressly providesany law, custom, contract or decree of Ct. to the contrary, all debts payable by an agriculturist at the commencement of this Act shall be scaled down in accordance with the provisions of thisin case of a mtge. debt when the loan has been advanced to more than one person, if one of the debtors happens to be an agriculturist while others are not, the agriculturist debtor would certainly be entitled to have his debts scaled down under the provisions of the Act in spite of the provision of general law which prevents a mtgor. from denying the liability of the interest which he owns in the mortgaged property to satisfy the entire mtge. debt. There is, therefore, nothing wrong in law in scaling down a mtge. decree in favour of one of the judgment-debtors, while as regards others the decree is kept intact.Some exception could undoubtedly be taken to the form and wording of the decree that has been passed in the present case. The decree, in our opinion, should not only have stated the amount payable by deft. 1 and that by defts, 2 to 7 separately but should have expressly directed that on payment of the amount directed to be paid by defts. 2 to 7 their interest alone in the mortgaged property would not be liable to be sold. The further direction should have been that in case they did not pay this amount, the whole of the mortgaged property including their interest would be sold for the entirety of the mtge. debt for which deft, was made liable. It is true that the decree contains no such clear directions but reading the decree as a whole and having regard to the actual decision in the case, this must be taken to be its plain implication. The subsequent agreement between the parties arrived at in course of the execution proceedings by which the decree-holders agreed to release the interest of deft. 2 and that of defts. 3 to 7 separately on payment of certain specified amounts by them proceed clearly on the assumption that the mtge. debt and the security has been split up, and in our opinion it is not possible for deft.1 to contend that the mtge. debt remained indivisible. Our conclusion is that the view taken by the Dist.,J. was right and should not have been disturbed.
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National Company Law Tribunal Bar Association Vs. Union of India | the Court was apprised, the process of selection has been concluded by the Selection Committee and recommendations have been made. The appointment process shall be concluded within a period of four to six weeks. For the second tranche of 15 vacancies, a notification inviting applications has already been issued with 12 August 2022 being the last date for application. In this backdrop, the grant of any relief would interfere with the ongoing selection process. 20. That apart, it is evident that when the incongruity in the term of office of three years was drawn to the attention to the Selection Committee chaired by the Chief Justice of India, a report was called from the President of the NCLT on the work performance and suitability of the Members. After the initial meeting of 20 April 2022, the Selection Committee at its meeting on 6 June 2022 adverted to the sensitive nature of the functions and duties of the Members, the verification carried out with regard to character and antecedents and the report on performance and suitability. The Union Government was, therefore, directed to take appropriate action. It is in pursuance of these minutes that the Union Government has issued a notification dated 14 June 2022 extending the tenure of two judicial and six technical members for a period of five years or until they attain the age of sixty-five. 21. The submission which has been urged on behalf of the petitioner is that Section 417 of the Companies Act 2013 provides a procedure for the removal of Members and, if any of the Members who were appointed on 20 September 2019 are unfit for continuance, the procedure for removal should be adopted. 22. Such an argument cannot be acceded to at the request of the Bar Association when the Members themselves have not moved this Court. Entertaining such a plea is fraught with consequences for the members whose term has not been extended. Some have applied afresh in the selection process which is under way. Moreover, the Court is not dealing with a situation of removal, but one in which the term of office as per the impugned notification dated 20 September 2019 has come to an end. The issue in regard to the term of appointment being less than the term prescribed statutorily has only been raised towards the tail end of the tenure and by the Bar Association and not the Members themselves. Entertaining the submissions of the petitioner would incidentally lead the Court into an evaluation of the suitability, character and performance of individual Members in a petition to which they are not parties. Such an exercise would, in the circumstances, be wholly inappropriate. 23. In Madras Bar Association (2020) (supra), the challenge was to the constitutional validity of the Tribunal, Appellate Tribunal and other Authorities (Qualification, Experience and Other Conditions of Service of Members) Rules, 2020, which mandated that the Members be appointed to the Tribunals for a maximum fouryear term or until they attain 65 years of age, whichever is earlier. Similarly, in Madras Bar Association (2021) (supra), the challenge was to Sections 12 and 13 of the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 and the amended Sections 184 and 186(2) of the Finance Act, 2017, which provided for a fouryear term to the concerned Tribunal, with a maximum age of 70 years for the Chairperson and 67 years for the Members. Rojer Mathew (supra) dealt with the provisions of the Schedule to the Tribunals Rules 2017 which had a shorter tenure of three years. In all these cases, the Court reiterated its position, as it had also held earlier in Union of India v. R. Gandhi (2010) 11 SCC 1, that Rules which prescribe a short tenure, coupled with provisions of routine suspensions pending enquiry and lack of immunity adversely impact the impartiality of the Tribunals. Furthermore, shorter tenures in such Rules also preclude the cultivation of adjudicatory experience. 24. In the present case, there is no challenge to the Rules or the provisions of the statute itself. The petitioners have instead sought an extension of the tenure of the retiring Members, who are not petitioning parties to the proceedings before this Court. The prayer for extension is also at a belated stage when the tenure of the Members is nearing its end. Not only had the Members consciously accepted the post for a duration of three years, the Selection Committee also already directed the government to take appropriate action basis the performance report. The Union Government has accordingly issued the notification dated 14 June 2020 extending the tenure of two judicial and six technical members. Furthermore, in the present circumstances, the selection process for fresh appointments of Members of the NCLT has already begun and is partially at an advanced stage. Accordingly, this Courts orders at the present stage would interfere with the selection process. 25. While the Notification dated 20 September 2019 prescribing a three year term was not in consonance with Section 413 of the Companies Act 2013, we note that: (i) the Members appointed under the notification failed to raise a challenge; (ii) a fresh process of selection has begun and some of the members have applied afresh; and (iii) the Union Government has taken corrective action to extend the tenure of certain members after considering the report of the President of the NCLT on their performance and suitability. 26. In the above backdrop, the appropriate course of action to be followed in the present case would be to allow the selection process which has been initiated to continue so that it can be concluded at an early date. The interest of the Bar Association which has moved these proceedings is that the vacancies in the Tribunal should be filled in on an expeditious basis so that work does not suffer and the functioning of the Tribunal is not hampered. The Bar Association cannot have a choice in regard to who should be a Member of the Tribunal. | 0[ds]11. From the above narration, it appears that following the meeting of the Selection Committee on 20 April 2022, a report was obtained from the President of the NCLT about the work performance and suitability of 23 Members. The Selection Committee then opined that there was no specific provision which empowered it to consider the issue of revising the term of office of the Members of the NCLT. The Committee however observed that considering the sensitive nature of the functions and duties of the Members of the NCLT, and considering the verification reports bearing on the character, antecedents, performance and suitability of the Members, the Union government may take appropriate action in the matter.12. Pursuant to the above process, a notification was issued on 14 June 2022 by the Union government in the Ministry of Corporate Affairs by which approval was granted for revising the tenure of two Judicial Members and six Technical Members for a period of five years or till they attain the age of 65 in consonance with the provisions of Section 413 of the Companies Act 2013.19. Two facets of the supervening developments need to be recapitulated. First, the Selection Committee constituted for the appointment of Members of the NCLT has initiated the process of selection. The vacancies which are being processed for selection include those arising upon the end of the three-year term of the members who were appointed on 20 September 2019. In respect of one tranche of 15 Members, as the Court was apprised, the process of selection has been concluded by the Selection Committee and recommendations have been made. The appointment process shall be concluded within a period of four to six weeks. For the second tranche of 15 vacancies, a notification inviting applications has already been issued with 12 August 2022 being the last date for application. In this backdrop, the grant of any relief would interfere with the ongoing selection process.20. That apart, it is evident that when the incongruity in the term of office of three years was drawn to the attention to the Selection Committee chaired by the Chief Justice of India, a report was called from the President of the NCLT on the work performance and suitability of the Members. After the initial meeting of 20 April 2022, the Selection Committee at its meeting on 6 June 2022 adverted to the sensitive nature of the functions and duties of the Members, the verification carried out with regard to character and antecedents and the report on performance and suitability. The Union Government was, therefore, directed to take appropriate action. It is in pursuance of these minutes that the Union Government has issued a notification dated 14 June 2022 extending the tenure of two judicial and six technical members for a period of five years or until they attain the age of sixty-five.22. Such an argument cannot be acceded to at the request of the Bar Association when the Members themselves have not moved this Court. Entertaining such a plea is fraught with consequences for the members whose term has not been extended. Some have applied afresh in the selection process which is under way. Moreover, the Court is not dealing with a situation of removal, but one in which the term of office as per the impugned notification dated 20 September 2019 has come to an end. The issue in regard to the term of appointment being less than the term prescribed statutorily has only been raised towards the tail end of the tenure and by the Bar Association and not the Members themselves. Entertaining the submissions of the petitioner would incidentally lead the Court into an evaluation of the suitability, character and performance of individual Members in a petition to which they are not parties. Such an exercise would, in the circumstances, be wholly inappropriate.23. In Madras Bar Association (2020) (supra), the challenge was to the constitutional validity of the Tribunal, Appellate Tribunal and other Authorities (Qualification, Experience and Other Conditions of Service of Members) Rules, 2020, which mandated that the Members be appointed to the Tribunals for a maximum fouryear term or until they attain 65 years of age, whichever is earlier. Similarly, in Madras Bar Association (2021) (supra), the challenge was to Sections 12 and 13 of the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 and the amended Sections 184 and 186(2) of the Finance Act, 2017, which provided for a fouryear term to the concerned Tribunal, with a maximum age of 70 years for the Chairperson and 67 years for the Members. Rojer Mathew (supra) dealt with the provisions of the Schedule to the Tribunals Rules 2017 which had a shorter tenure of three years. In all these cases, the Court reiterated its position, as it had also held earlier in Union of India v. R. Gandhi (2010) 11 SCC 1, that Rules which prescribe a short tenure, coupled with provisions of routine suspensions pending enquiry and lack of immunity adversely impact the impartiality of the Tribunals. Furthermore, shorter tenures in such Rules also preclude the cultivation of adjudicatory experience.24. In the present case, there is no challenge to the Rules or the provisions of the statute itself. The petitioners have instead sought an extension of the tenure of the retiring Members, who are not petitioning parties to the proceedings before this Court. The prayer for extension is also at a belated stage when the tenure of the Members is nearing its end. Not only had the Members consciously accepted the post for a duration of three years, the Selection Committee also already directed the government to take appropriate action basis the performance report. The Union Government has accordingly issued the notification dated 14 June 2020 extending the tenure of two judicial and six technical members. Furthermore, in the present circumstances, the selection process for fresh appointments of Members of the NCLT has already begun and is partially at an advanced stage. Accordingly, this Courts orders at the present stage would interfere with the selection process.25. While the Notification dated 20 September 2019 prescribing a three year term was not in consonance with Section 413 of the Companies Act 2013, we note that:(i) the Members appointed under the notification failed to raise a challenge;(ii) a fresh process of selection has begun and some of the members have applied afresh; and(iii) the Union Government has taken corrective action to extend the tenure of certain members after considering the report of the President of the NCLT on their performance and suitability.26. In the above backdrop, the appropriate course of action to be followed in the present case would be to allow the selection process which has been initiated to continue so that it can be concluded at an early date. The interest of the Bar Association which has moved these proceedings is that the vacancies in the Tribunal should be filled in on an expeditious basis so that work does not suffer and the functioning of the Tribunal is not hampered. The Bar Association cannot have a choice in regard to who should be a Member of the Tribunal. | 0 | 3,093 | 1,309 | ### 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 Court was apprised, the process of selection has been concluded by the Selection Committee and recommendations have been made. The appointment process shall be concluded within a period of four to six weeks. For the second tranche of 15 vacancies, a notification inviting applications has already been issued with 12 August 2022 being the last date for application. In this backdrop, the grant of any relief would interfere with the ongoing selection process. 20. That apart, it is evident that when the incongruity in the term of office of three years was drawn to the attention to the Selection Committee chaired by the Chief Justice of India, a report was called from the President of the NCLT on the work performance and suitability of the Members. After the initial meeting of 20 April 2022, the Selection Committee at its meeting on 6 June 2022 adverted to the sensitive nature of the functions and duties of the Members, the verification carried out with regard to character and antecedents and the report on performance and suitability. The Union Government was, therefore, directed to take appropriate action. It is in pursuance of these minutes that the Union Government has issued a notification dated 14 June 2022 extending the tenure of two judicial and six technical members for a period of five years or until they attain the age of sixty-five. 21. The submission which has been urged on behalf of the petitioner is that Section 417 of the Companies Act 2013 provides a procedure for the removal of Members and, if any of the Members who were appointed on 20 September 2019 are unfit for continuance, the procedure for removal should be adopted. 22. Such an argument cannot be acceded to at the request of the Bar Association when the Members themselves have not moved this Court. Entertaining such a plea is fraught with consequences for the members whose term has not been extended. Some have applied afresh in the selection process which is under way. Moreover, the Court is not dealing with a situation of removal, but one in which the term of office as per the impugned notification dated 20 September 2019 has come to an end. The issue in regard to the term of appointment being less than the term prescribed statutorily has only been raised towards the tail end of the tenure and by the Bar Association and not the Members themselves. Entertaining the submissions of the petitioner would incidentally lead the Court into an evaluation of the suitability, character and performance of individual Members in a petition to which they are not parties. Such an exercise would, in the circumstances, be wholly inappropriate. 23. In Madras Bar Association (2020) (supra), the challenge was to the constitutional validity of the Tribunal, Appellate Tribunal and other Authorities (Qualification, Experience and Other Conditions of Service of Members) Rules, 2020, which mandated that the Members be appointed to the Tribunals for a maximum fouryear term or until they attain 65 years of age, whichever is earlier. Similarly, in Madras Bar Association (2021) (supra), the challenge was to Sections 12 and 13 of the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 and the amended Sections 184 and 186(2) of the Finance Act, 2017, which provided for a fouryear term to the concerned Tribunal, with a maximum age of 70 years for the Chairperson and 67 years for the Members. Rojer Mathew (supra) dealt with the provisions of the Schedule to the Tribunals Rules 2017 which had a shorter tenure of three years. In all these cases, the Court reiterated its position, as it had also held earlier in Union of India v. R. Gandhi (2010) 11 SCC 1, that Rules which prescribe a short tenure, coupled with provisions of routine suspensions pending enquiry and lack of immunity adversely impact the impartiality of the Tribunals. Furthermore, shorter tenures in such Rules also preclude the cultivation of adjudicatory experience. 24. In the present case, there is no challenge to the Rules or the provisions of the statute itself. The petitioners have instead sought an extension of the tenure of the retiring Members, who are not petitioning parties to the proceedings before this Court. The prayer for extension is also at a belated stage when the tenure of the Members is nearing its end. Not only had the Members consciously accepted the post for a duration of three years, the Selection Committee also already directed the government to take appropriate action basis the performance report. The Union Government has accordingly issued the notification dated 14 June 2020 extending the tenure of two judicial and six technical members. Furthermore, in the present circumstances, the selection process for fresh appointments of Members of the NCLT has already begun and is partially at an advanced stage. Accordingly, this Courts orders at the present stage would interfere with the selection process. 25. While the Notification dated 20 September 2019 prescribing a three year term was not in consonance with Section 413 of the Companies Act 2013, we note that: (i) the Members appointed under the notification failed to raise a challenge; (ii) a fresh process of selection has begun and some of the members have applied afresh; and (iii) the Union Government has taken corrective action to extend the tenure of certain members after considering the report of the President of the NCLT on their performance and suitability. 26. In the above backdrop, the appropriate course of action to be followed in the present case would be to allow the selection process which has been initiated to continue so that it can be concluded at an early date. The interest of the Bar Association which has moved these proceedings is that the vacancies in the Tribunal should be filled in on an expeditious basis so that work does not suffer and the functioning of the Tribunal is not hampered. The Bar Association cannot have a choice in regard to who should be a Member of the Tribunal.
### Response:
0
### Explanation:
developments need to be recapitulated. First, the Selection Committee constituted for the appointment of Members of the NCLT has initiated the process of selection. The vacancies which are being processed for selection include those arising upon the end of the three-year term of the members who were appointed on 20 September 2019. In respect of one tranche of 15 Members, as the Court was apprised, the process of selection has been concluded by the Selection Committee and recommendations have been made. The appointment process shall be concluded within a period of four to six weeks. For the second tranche of 15 vacancies, a notification inviting applications has already been issued with 12 August 2022 being the last date for application. In this backdrop, the grant of any relief would interfere with the ongoing selection process.20. That apart, it is evident that when the incongruity in the term of office of three years was drawn to the attention to the Selection Committee chaired by the Chief Justice of India, a report was called from the President of the NCLT on the work performance and suitability of the Members. After the initial meeting of 20 April 2022, the Selection Committee at its meeting on 6 June 2022 adverted to the sensitive nature of the functions and duties of the Members, the verification carried out with regard to character and antecedents and the report on performance and suitability. The Union Government was, therefore, directed to take appropriate action. It is in pursuance of these minutes that the Union Government has issued a notification dated 14 June 2022 extending the tenure of two judicial and six technical members for a period of five years or until they attain the age of sixty-five.22. Such an argument cannot be acceded to at the request of the Bar Association when the Members themselves have not moved this Court. Entertaining such a plea is fraught with consequences for the members whose term has not been extended. Some have applied afresh in the selection process which is under way. Moreover, the Court is not dealing with a situation of removal, but one in which the term of office as per the impugned notification dated 20 September 2019 has come to an end. The issue in regard to the term of appointment being less than the term prescribed statutorily has only been raised towards the tail end of the tenure and by the Bar Association and not the Members themselves. Entertaining the submissions of the petitioner would incidentally lead the Court into an evaluation of the suitability, character and performance of individual Members in a petition to which they are not parties. Such an exercise would, in the circumstances, be wholly inappropriate.23. In Madras Bar Association (2020) (supra), the challenge was to the constitutional validity of the Tribunal, Appellate Tribunal and other Authorities (Qualification, Experience and Other Conditions of Service of Members) Rules, 2020, which mandated that the Members be appointed to the Tribunals for a maximum fouryear term or until they attain 65 years of age, whichever is earlier. Similarly, in Madras Bar Association (2021) (supra), the challenge was to Sections 12 and 13 of the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 and the amended Sections 184 and 186(2) of the Finance Act, 2017, which provided for a fouryear term to the concerned Tribunal, with a maximum age of 70 years for the Chairperson and 67 years for the Members. Rojer Mathew (supra) dealt with the provisions of the Schedule to the Tribunals Rules 2017 which had a shorter tenure of three years. In all these cases, the Court reiterated its position, as it had also held earlier in Union of India v. R. Gandhi (2010) 11 SCC 1, that Rules which prescribe a short tenure, coupled with provisions of routine suspensions pending enquiry and lack of immunity adversely impact the impartiality of the Tribunals. Furthermore, shorter tenures in such Rules also preclude the cultivation of adjudicatory experience.24. In the present case, there is no challenge to the Rules or the provisions of the statute itself. The petitioners have instead sought an extension of the tenure of the retiring Members, who are not petitioning parties to the proceedings before this Court. The prayer for extension is also at a belated stage when the tenure of the Members is nearing its end. Not only had the Members consciously accepted the post for a duration of three years, the Selection Committee also already directed the government to take appropriate action basis the performance report. The Union Government has accordingly issued the notification dated 14 June 2020 extending the tenure of two judicial and six technical members. Furthermore, in the present circumstances, the selection process for fresh appointments of Members of the NCLT has already begun and is partially at an advanced stage. Accordingly, this Courts orders at the present stage would interfere with the selection process.25. While the Notification dated 20 September 2019 prescribing a three year term was not in consonance with Section 413 of the Companies Act 2013, we note that:(i) the Members appointed under the notification failed to raise a challenge;(ii) a fresh process of selection has begun and some of the members have applied afresh; and(iii) the Union Government has taken corrective action to extend the tenure of certain members after considering the report of the President of the NCLT on their performance and suitability.26. In the above backdrop, the appropriate course of action to be followed in the present case would be to allow the selection process which has been initiated to continue so that it can be concluded at an early date. The interest of the Bar Association which has moved these proceedings is that the vacancies in the Tribunal should be filled in on an expeditious basis so that work does not suffer and the functioning of the Tribunal is not hampered. The Bar Association cannot have a choice in regard to who should be a Member of the Tribunal.
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Mother Hospital Pvt. Ltd Vs. Commissioner of Income Tax | a private limited company to run and manage the hospital (then under construction), a company was formed for the said purpose and was incorporated on December 30, 1988. Thereafter, an agreement was entered into between the firm and the company by which it was agreed that the firm will complete the construction of the building and hand over possession of the same on completion, on the condition that the entire cost of construction of the building should be borne by the company. The relevant clause in the agreement reads:The hospital building shall belong to the company on the company taking possession thereof; but however that the firm has and will have a lien on the hospital building and on any improvements or additions thereto until the money owing by the company to the firm by virtue of this agreement is fully paid off. 2. The company took possession of the building on its completion on December 18, 1991 and is running the hospital therein with effect from December 19, 1991. The accounts of the company have been debited with the cost of construction of the building, i.e., Rs. 1,37,83,149.83. The accounts of the firm have also been credited with the payments of Rs. 1,06,78,456 made by the company to the firm for completion of the construction. The balance amount payable by the company to the firm has been carried as the companys liability in its balance-sheet, for which the firm had a lien on the building. This amount has also since been paid to the firm. The one time building tax payable by the owner of a building under the Kerala Building Tax Act was also paid by the company.3. Since the ownership of the land had to remain with the firm, it was also agreed that the land would be given on lease by the firm to the company and agreement dated February 1, 1989 provided for the said contingency as well in Clause 4(g) which reads as under:(g) In consideration of the firm agreeing with the company to permit situation of the hospital building or any additions thereto belonging to the firm as aforesaid, the company shall pay to the firm a ground rent of Rs. 100 per month, but however that the liability to pay such ground rent shall be on and from the 1st day of April 1993 only. 4. The first assessment year of the company was 1992-93. The Appellant-company filed its return for the said year in which it claimed depreciation on the building part of the said property Under Section 32 of the Income-tax Act, on the ground that it had become the "owner of the company". The assessment officer, after construing the provisions of the aforesaid agreement came to the conclusion that the Appellant-Assessee had not become the owner of the property in question in the relevant assessment year and, therefore, rejected the claim of depreciation. Appeal preferred by the Assessee-company before the Commissioner of Income-tax (Appeals) met with the same fate. However, in further appeal before the Income-tax Appellate Tribunal (ITAT), the Appellant succeeded. This success, however, was proved to be only of temporary nature inasmuch as the appeal of the Revenue against the order of the Income-tax Appellate Tribunal filed Under Section 260A of the Income-tax Act before the High Court was allowed setting aside the aforesaid order of the Income-tax Appellate Tribunal.5. The High Court has held that the Assessee had not become the owner of the property in question in the relevant assessment year and Clause 4(g) could not confer any ownership rights on the Assessee.6. We are in agreement with the view taken by the High Court. Building which was constructed by the firm belonged to the firm. Admittedly it is an immovable property. The title in the said immovable property cannot pass when its value is more than Rs. 100 unless it is executed on a proper stamp paper and is also duly registered with the sub-Registrar. Nothing of the sort took place. In the absence thereof, it could not be said that the Assessee had become the owner of the property.7. Before us another argument is raised by the learned Counsel appearing for the Appellant. It is submitted that having regard to Clause 4(g), the Appellant had become the lessee of the property in question and since the construction was made by the Appellant from its funds, by virtue of Explanation 1 to Section 32 of the Income-tax Act, the Assessee was, in any case, entitled to claim depreciation.8. This Explanation reads as under:32(1)....Explanation 1. Where the business or profession of the Assessee is carried on in a building not owned by him but in respect of which the Assessee holds a lease or other right of occupancy and any capital expenditure is incurred by the Assessee for the purposes of the business or profession on the construction of any structure or doing of any work in or in relation to and by way of renovation or extension of or improvement to the building, then, the provisions of this clause shall apply as if the said structure or work is a building owned by the Assessee. 9. As is clear from the plain language of the aforesaid Explanation, it is only when the Assessee holds a lease right or other right of occupancy and any capital expenditure is incurred by the Assessee on the construction of any structure or doing of any work in or in relation to and by way of renovation or extension of or improvement to the building and the expenditure on construction is incurred by the Assessee, that Assessee would be entitled to depreciation to the extent of any such expenditure incurred.10. In the instant case, records show that the construction was made by the firm. It is a different thing that the Assessee had reimbursed the amount. The construction was not carried out by the Assessee himself. Therefore, the Explanation also would not come to the aid of the Assessee. | 0[ds]6. We are in agreement with the view taken by the High Court. Building which was constructed by the firm belonged to the firm. Admittedly it is an immovable property. The title in the said immovable property cannot pass when its value is more than Rs. 100 unless it is executed on a proper stamp paper and is also duly registered with the sub-Registrar. Nothing of the sort took place. In the absence thereof, it could not be said that the Assessee had become the owner of the property9. As is clear from the plain language of the aforesaid Explanation, it is only when the Assessee holds a lease right or other right of occupancy and any capital expenditure is incurred by the Assessee on the construction of any structure or doing of any work in or in relation to and by way of renovation or extension of or improvement to the building and the expenditure on construction is incurred by the Assessee, that Assessee would be entitled to depreciation to the extent of any such expenditure incurred10. In the instant case, records show that the construction was made by the firm. It is a different thing that the Assessee had reimbursed the amount. The construction was not carried out by the Assessee himself. Therefore, the Explanation also would not come to the aid of the Assessee. | 0 | 1,328 | 250 | ### 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:
a private limited company to run and manage the hospital (then under construction), a company was formed for the said purpose and was incorporated on December 30, 1988. Thereafter, an agreement was entered into between the firm and the company by which it was agreed that the firm will complete the construction of the building and hand over possession of the same on completion, on the condition that the entire cost of construction of the building should be borne by the company. The relevant clause in the agreement reads:The hospital building shall belong to the company on the company taking possession thereof; but however that the firm has and will have a lien on the hospital building and on any improvements or additions thereto until the money owing by the company to the firm by virtue of this agreement is fully paid off. 2. The company took possession of the building on its completion on December 18, 1991 and is running the hospital therein with effect from December 19, 1991. The accounts of the company have been debited with the cost of construction of the building, i.e., Rs. 1,37,83,149.83. The accounts of the firm have also been credited with the payments of Rs. 1,06,78,456 made by the company to the firm for completion of the construction. The balance amount payable by the company to the firm has been carried as the companys liability in its balance-sheet, for which the firm had a lien on the building. This amount has also since been paid to the firm. The one time building tax payable by the owner of a building under the Kerala Building Tax Act was also paid by the company.3. Since the ownership of the land had to remain with the firm, it was also agreed that the land would be given on lease by the firm to the company and agreement dated February 1, 1989 provided for the said contingency as well in Clause 4(g) which reads as under:(g) In consideration of the firm agreeing with the company to permit situation of the hospital building or any additions thereto belonging to the firm as aforesaid, the company shall pay to the firm a ground rent of Rs. 100 per month, but however that the liability to pay such ground rent shall be on and from the 1st day of April 1993 only. 4. The first assessment year of the company was 1992-93. The Appellant-company filed its return for the said year in which it claimed depreciation on the building part of the said property Under Section 32 of the Income-tax Act, on the ground that it had become the "owner of the company". The assessment officer, after construing the provisions of the aforesaid agreement came to the conclusion that the Appellant-Assessee had not become the owner of the property in question in the relevant assessment year and, therefore, rejected the claim of depreciation. Appeal preferred by the Assessee-company before the Commissioner of Income-tax (Appeals) met with the same fate. However, in further appeal before the Income-tax Appellate Tribunal (ITAT), the Appellant succeeded. This success, however, was proved to be only of temporary nature inasmuch as the appeal of the Revenue against the order of the Income-tax Appellate Tribunal filed Under Section 260A of the Income-tax Act before the High Court was allowed setting aside the aforesaid order of the Income-tax Appellate Tribunal.5. The High Court has held that the Assessee had not become the owner of the property in question in the relevant assessment year and Clause 4(g) could not confer any ownership rights on the Assessee.6. We are in agreement with the view taken by the High Court. Building which was constructed by the firm belonged to the firm. Admittedly it is an immovable property. The title in the said immovable property cannot pass when its value is more than Rs. 100 unless it is executed on a proper stamp paper and is also duly registered with the sub-Registrar. Nothing of the sort took place. In the absence thereof, it could not be said that the Assessee had become the owner of the property.7. Before us another argument is raised by the learned Counsel appearing for the Appellant. It is submitted that having regard to Clause 4(g), the Appellant had become the lessee of the property in question and since the construction was made by the Appellant from its funds, by virtue of Explanation 1 to Section 32 of the Income-tax Act, the Assessee was, in any case, entitled to claim depreciation.8. This Explanation reads as under:32(1)....Explanation 1. Where the business or profession of the Assessee is carried on in a building not owned by him but in respect of which the Assessee holds a lease or other right of occupancy and any capital expenditure is incurred by the Assessee for the purposes of the business or profession on the construction of any structure or doing of any work in or in relation to and by way of renovation or extension of or improvement to the building, then, the provisions of this clause shall apply as if the said structure or work is a building owned by the Assessee. 9. As is clear from the plain language of the aforesaid Explanation, it is only when the Assessee holds a lease right or other right of occupancy and any capital expenditure is incurred by the Assessee on the construction of any structure or doing of any work in or in relation to and by way of renovation or extension of or improvement to the building and the expenditure on construction is incurred by the Assessee, that Assessee would be entitled to depreciation to the extent of any such expenditure incurred.10. In the instant case, records show that the construction was made by the firm. It is a different thing that the Assessee had reimbursed the amount. The construction was not carried out by the Assessee himself. Therefore, the Explanation also would not come to the aid of the Assessee.
### Response:
0
### Explanation:
6. We are in agreement with the view taken by the High Court. Building which was constructed by the firm belonged to the firm. Admittedly it is an immovable property. The title in the said immovable property cannot pass when its value is more than Rs. 100 unless it is executed on a proper stamp paper and is also duly registered with the sub-Registrar. Nothing of the sort took place. In the absence thereof, it could not be said that the Assessee had become the owner of the property9. As is clear from the plain language of the aforesaid Explanation, it is only when the Assessee holds a lease right or other right of occupancy and any capital expenditure is incurred by the Assessee on the construction of any structure or doing of any work in or in relation to and by way of renovation or extension of or improvement to the building and the expenditure on construction is incurred by the Assessee, that Assessee would be entitled to depreciation to the extent of any such expenditure incurred10. In the instant case, records show that the construction was made by the firm. It is a different thing that the Assessee had reimbursed the amount. The construction was not carried out by the Assessee himself. Therefore, the Explanation also would not come to the aid of the Assessee.
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Kirloskar Oil Engines, Limited Vs. Hanumant Laxman Bibawe | it is prepared according to rule 426 of the Police Manual. These watchmen are given buckle number and the uniform supplied to them cannot be worn by a private person. A jamadar is posted at the police station and he supervises over all the watchmen employed. At the place of duty one senior watchman is asked to supervise the work of watchmen. The jamadar at the Kirloskar Oil Engines is a senior watchmen. His pay is fixed by the District Superintendent of Police. In factories where there are ten or fifteen watchmen the factory sends hajri of all watchmen to the police office in the first week of the month for the preceding month. In the polices station there is a muster-roll for making attendance. If the District Superintendent of Police comes to know that the watchmans duty is not satisfactory, he can withdraw him. The police staff also go for checking and if a watchmen is found absent or indulging in undesirable activities, he is withdrawn even without the consent of the owner. The power to withdraw rests with the District Superintendent of Police and so is the power to transfer. It would thus be seen that this oral evidence also corroborates the conclusion which follows irresistibly from the conditions of the system under which the respondents service was secured by the appellant. Therefore, it seems to us that the tribunal was in error in holding that the respondent is the appellants employee.For the respondent Mr. Chaudhury has referred to a decision of this Court in Shivnandan Sharma v. Punjab National Bank, Ltd. [1955 - I L.L.J. 688]. In that case this Court had occasion to consider the question as to the tests which should be applied in determining whether a particular person is the employee of another or not. In discussing this question this Court observed that the decision of such a question would always depend on the facts and circumstances of each individual case. Then a passage was quoted from the speech of Lord Porter in which Lord Porter observed at p. 696 :"Many factors have a bearing on the result. Who is pay master, who can dismiss, how long the alternative service lasts, what machinery is employed, have all to be kept in mind. The expression used in any individual case must always be considered in regard to the subject-matter under discussion but amongst the many tests suggested I think that the most satisfactory, by which to ascertain who is the employer at any particular time, is to ask who is entitled to tell the employee the way in which he is to do the work upon which he is engaged."6. Naturally Mr. Chaudhury very strongly relies on the last mentioned test and he contends that it is the appellant who used to tell the respondent the way in which he should do the work of watching and so the respondent should be taken to be appellants employee. In our opinion as Lord Porter himself has observed the decision of the question as to the relationship of employer and employee must be determined in the light of all relevant facts and circumstances and it would not be expedient to lay down any particular test as decisive in the matter. A test which may not be important, and which may appear even as decisive in one set of circumstances, may not be important or decisive at all in the circumstances of other cases. It is true that Lord Porters observation on which Mr. Chaudhury relies seems to treat the particular test as most satisfactory; but, with respect, though the said test may have been satisfactory in the facts of the case with which Lord Porter was dealing, it would, we think, be unreasonable to treat that test as most satisfactory in all cases as a general rule. Take, for instance, the common case where an industrial establishment allots to the bungalows occupied by its officers gardeners and watchmen. These gardeners and watchmen are the employees of the industrial establishment, are paid by them and are subject to their control and supervision. Even so, in doing their work as gardeners and watchmen from day to day, they would naturally take orders from the establishments officers who, for the time being, are in occupation of the bungalows. The officers in occupation of the bungalows may change from time to time and the watchmen and gardeners may also be transferred from one bungalow to another by the establishment. It is plain that though the watchmen and gardeners would take their orders from the occupants of the bungalows, they cannot be said to be the servants of the officers who occupy the bungalows during their tenure of office. It would thus be seen that the test as to who is entitled to tell the employee the way in which he is to do his work would completely break down in such a case. That is what we are not prepared to accept Mr. Chaudhurys argument that this particular test is of universal application and can be held to be satisfactory in all cases.In the present case, where the respondent became the watchman of the appellant under a scheme which has been evolved for supplying watchmen to private employers, the fact that the private employer may issue orders to the watchmen will not be an important consideration at all. It is the other terms and conditions of the system under which the arrangement has system under which the arrangement has been made which may have to be borne in mind and it is in the light of all the relevant facts that one has to reach the final decision. Having regard to all the relevant facts in this case, we are satisfied that the respondent cannot be said to be an employee of the appellant; and so, he cannot claims to be an industrial employee and as such, a workman concerned in the above industrial dispute pending adjudication at the relevant time.7. | 1[ds]In our opinion this contention is well founded and must beour opinion, having regard to these terms of the scheme, it is difficult to accept the view taken by the tribunal that the respondent was an employee of the appellant, that he was an industrial employee and therefore he was a workman concerned in the dispute which was pending adjudication on the date of hiswould thus be seen that this oral evidence also corroborates the conclusion which follows irresistibly from the conditions of the system under which the respondents service was secured by the appellant. Therefore, it seems to us that the tribunal was in error in holding that the respondent is the appellantsour opinion as Lord Porter himself has observed the decision of the question as to the relationship of employer and employee must be determined in the light of all relevant facts and circumstances and it would not be expedient to lay down any particular test as decisive in the matter. A test which may not be important, and which may appear even as decisive in one set of circumstances, may not be important or decisive at all in the circumstances of other cases. It is true that Lord Porters observation on which Mr. Chaudhury relies seems to treat the particular test as most satisfactory; but, with respect, though the said test may have been satisfactory in the facts of the case with which Lord Porter was dealing, it would, we think, be unreasonable to treat that test as most satisfactory in all cases as a general rule. Take, for instance, the common case where an industrial establishment allots to the bungalows occupied by its officers gardeners and watchmen. These gardeners and watchmen are the employees of the industrial establishment, are paid by them and are subject to their control and supervision. Even so, in doing their work as gardeners and watchmen from day to day, they would naturally take orders from the establishments officers who, for the time being, are in occupation of the bungalows. The officers in occupation of the bungalows may change from time to time and the watchmen and gardeners may also be transferred from one bungalow to another by the establishment. It is plain that though the watchmen and gardeners would take their orders from the occupants of the bungalows, they cannot be said to be the servants of the officers who occupy the bungalows during their tenure of office. It would thus be seen that the test as to who is entitled to tell the employee the way in which he is to do his work would completely break down in such a case. That is what we are not prepared to accept Mr. Chaudhurys argument that this particular test is of universal application and can be held to be satisfactory in all cases.In the present case, where the respondent became the watchman of the appellant under a scheme which has been evolved for supplying watchmen to private employers, the fact that the private employer may issue orders to the watchmen will not be an important consideration at all. It is the other terms and conditions of the system under which the arrangement has system under which the arrangement has been made which may have to be borne in mind and it is in the light of all the relevant facts that one has to reach the final decision. Having regard to all the relevant facts in this case, we are satisfied that the respondent cannot be said to be an employee of the appellant; and so, he cannot claims to be an industrial employee and as such, a workman concerned in the above industrial dispute pending adjudication at the relevant time. | 1 | 2,618 | 666 | ### 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:
it is prepared according to rule 426 of the Police Manual. These watchmen are given buckle number and the uniform supplied to them cannot be worn by a private person. A jamadar is posted at the police station and he supervises over all the watchmen employed. At the place of duty one senior watchman is asked to supervise the work of watchmen. The jamadar at the Kirloskar Oil Engines is a senior watchmen. His pay is fixed by the District Superintendent of Police. In factories where there are ten or fifteen watchmen the factory sends hajri of all watchmen to the police office in the first week of the month for the preceding month. In the polices station there is a muster-roll for making attendance. If the District Superintendent of Police comes to know that the watchmans duty is not satisfactory, he can withdraw him. The police staff also go for checking and if a watchmen is found absent or indulging in undesirable activities, he is withdrawn even without the consent of the owner. The power to withdraw rests with the District Superintendent of Police and so is the power to transfer. It would thus be seen that this oral evidence also corroborates the conclusion which follows irresistibly from the conditions of the system under which the respondents service was secured by the appellant. Therefore, it seems to us that the tribunal was in error in holding that the respondent is the appellants employee.For the respondent Mr. Chaudhury has referred to a decision of this Court in Shivnandan Sharma v. Punjab National Bank, Ltd. [1955 - I L.L.J. 688]. In that case this Court had occasion to consider the question as to the tests which should be applied in determining whether a particular person is the employee of another or not. In discussing this question this Court observed that the decision of such a question would always depend on the facts and circumstances of each individual case. Then a passage was quoted from the speech of Lord Porter in which Lord Porter observed at p. 696 :"Many factors have a bearing on the result. Who is pay master, who can dismiss, how long the alternative service lasts, what machinery is employed, have all to be kept in mind. The expression used in any individual case must always be considered in regard to the subject-matter under discussion but amongst the many tests suggested I think that the most satisfactory, by which to ascertain who is the employer at any particular time, is to ask who is entitled to tell the employee the way in which he is to do the work upon which he is engaged."6. Naturally Mr. Chaudhury very strongly relies on the last mentioned test and he contends that it is the appellant who used to tell the respondent the way in which he should do the work of watching and so the respondent should be taken to be appellants employee. In our opinion as Lord Porter himself has observed the decision of the question as to the relationship of employer and employee must be determined in the light of all relevant facts and circumstances and it would not be expedient to lay down any particular test as decisive in the matter. A test which may not be important, and which may appear even as decisive in one set of circumstances, may not be important or decisive at all in the circumstances of other cases. It is true that Lord Porters observation on which Mr. Chaudhury relies seems to treat the particular test as most satisfactory; but, with respect, though the said test may have been satisfactory in the facts of the case with which Lord Porter was dealing, it would, we think, be unreasonable to treat that test as most satisfactory in all cases as a general rule. Take, for instance, the common case where an industrial establishment allots to the bungalows occupied by its officers gardeners and watchmen. These gardeners and watchmen are the employees of the industrial establishment, are paid by them and are subject to their control and supervision. Even so, in doing their work as gardeners and watchmen from day to day, they would naturally take orders from the establishments officers who, for the time being, are in occupation of the bungalows. The officers in occupation of the bungalows may change from time to time and the watchmen and gardeners may also be transferred from one bungalow to another by the establishment. It is plain that though the watchmen and gardeners would take their orders from the occupants of the bungalows, they cannot be said to be the servants of the officers who occupy the bungalows during their tenure of office. It would thus be seen that the test as to who is entitled to tell the employee the way in which he is to do his work would completely break down in such a case. That is what we are not prepared to accept Mr. Chaudhurys argument that this particular test is of universal application and can be held to be satisfactory in all cases.In the present case, where the respondent became the watchman of the appellant under a scheme which has been evolved for supplying watchmen to private employers, the fact that the private employer may issue orders to the watchmen will not be an important consideration at all. It is the other terms and conditions of the system under which the arrangement has system under which the arrangement has been made which may have to be borne in mind and it is in the light of all the relevant facts that one has to reach the final decision. Having regard to all the relevant facts in this case, we are satisfied that the respondent cannot be said to be an employee of the appellant; and so, he cannot claims to be an industrial employee and as such, a workman concerned in the above industrial dispute pending adjudication at the relevant time.7.
### Response:
1
### Explanation:
In our opinion this contention is well founded and must beour opinion, having regard to these terms of the scheme, it is difficult to accept the view taken by the tribunal that the respondent was an employee of the appellant, that he was an industrial employee and therefore he was a workman concerned in the dispute which was pending adjudication on the date of hiswould thus be seen that this oral evidence also corroborates the conclusion which follows irresistibly from the conditions of the system under which the respondents service was secured by the appellant. Therefore, it seems to us that the tribunal was in error in holding that the respondent is the appellantsour opinion as Lord Porter himself has observed the decision of the question as to the relationship of employer and employee must be determined in the light of all relevant facts and circumstances and it would not be expedient to lay down any particular test as decisive in the matter. A test which may not be important, and which may appear even as decisive in one set of circumstances, may not be important or decisive at all in the circumstances of other cases. It is true that Lord Porters observation on which Mr. Chaudhury relies seems to treat the particular test as most satisfactory; but, with respect, though the said test may have been satisfactory in the facts of the case with which Lord Porter was dealing, it would, we think, be unreasonable to treat that test as most satisfactory in all cases as a general rule. Take, for instance, the common case where an industrial establishment allots to the bungalows occupied by its officers gardeners and watchmen. These gardeners and watchmen are the employees of the industrial establishment, are paid by them and are subject to their control and supervision. Even so, in doing their work as gardeners and watchmen from day to day, they would naturally take orders from the establishments officers who, for the time being, are in occupation of the bungalows. The officers in occupation of the bungalows may change from time to time and the watchmen and gardeners may also be transferred from one bungalow to another by the establishment. It is plain that though the watchmen and gardeners would take their orders from the occupants of the bungalows, they cannot be said to be the servants of the officers who occupy the bungalows during their tenure of office. It would thus be seen that the test as to who is entitled to tell the employee the way in which he is to do his work would completely break down in such a case. That is what we are not prepared to accept Mr. Chaudhurys argument that this particular test is of universal application and can be held to be satisfactory in all cases.In the present case, where the respondent became the watchman of the appellant under a scheme which has been evolved for supplying watchmen to private employers, the fact that the private employer may issue orders to the watchmen will not be an important consideration at all. It is the other terms and conditions of the system under which the arrangement has system under which the arrangement has been made which may have to be borne in mind and it is in the light of all the relevant facts that one has to reach the final decision. Having regard to all the relevant facts in this case, we are satisfied that the respondent cannot be said to be an employee of the appellant; and so, he cannot claims to be an industrial employee and as such, a workman concerned in the above industrial dispute pending adjudication at the relevant time.
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Siddhartha Tubes Ltd Vs. Comnr.Of Cutstoms & Central Excise,.M.P | included in its assessable value. In this connection, learned counsel relied upon the judgment of this Court in the case of Sidhartha Tubes Ltd. vs. Collector of Central Excise reported in 2000 (115) ELT 32 ; and the decision in the case of Procter & Gamble Hygiene & Health Care Ltd. vs. Commissioner of Central Excise, Bhopal reported in 2005 (9) Scale 559. 6. In the present case, the commissioner on facts found that the assessee was clearing from its factory galvanized pipes classifiable under heading 73.06. It was not disputed that the process of galvanization by itself did not amount to manufacture, but when the assessee was selling its product (m.s. galvanized pipes) manufactured out of H.R. coils after passing through various processes (including galvanization) then such a process gave value addition to the product and consequently, the cost of galvanization has to be included in the assessable value. Galvanization added to the quality. Galvanization increased the value of pipes. It enriched the value of goods and, therefore, the cost incurred by the assessee for galvanization was required to be included in the assessable value.7. At the outset, we may state that value is the function of price under section 4(4)(d)(i) of the Act. The concept of "valuation" is different from the concept of "manufacture". Under section 3 of the Act, the levy is on the manufacture of the goods. However, the measure of the levy is the normal price, as defined under section 4(1)(a) of the Act. It is not disputed that galvanization as a process does not amount to manufacture. However, on facts, it has been found by the commissioner that the process of galvanization has taken place before the product is cleared from the place of removal, as defined under section 4(4)(b). Further, on facts, the commissioner has found that galvanization has added to the quality of the product. It has increased the value of the pipes. Hence, the costs incurred by the assessee for galvanization had to be loaded on to the sale price of the pipes. Therefore, the cost had to be included in the assessable value of m.s. galvanized pipes. We do not find any error in the reasoning of the adjudicating authority. 8. In the case of Union of India & others vs. Bombay Tyre International Ltd. report in AIR 1984 SC 420 , this Court observed as follows: "....the price of an article is related to its value, and into that value one has to pour several components, including those which enrich the value of the product and which give to an article, its marketability in the trade. Therefore, the expenses incurred on account of the several factors, which have contributed to the value of the product up to the date of sale, are liable to included in the assessable value." 9. Recently, this court in the case of Procter & Gamble Hygiene & Health Care (supra), has observed as follows: "9. This case relates to valuation. At the outset, we would like to clarify certain concepts under the Excise Law. The levy of excise duty is on the "manufacture" of goods. The excisable event is the manufacture. The levy is on the manufacture. The measure or the yardstick for computing the levy is the "normal price" under section 4(1)(a) of the Act. The concept of "excisability" is different from the concept of "valuation". In the present case, as stated above, we are concerned with valuation and not with excisability. In the present case, there is no dispute that AMS came under sub-heading 3402.90 of the Tariff. There is no dispute in the present case that AMS was dutiable under section 3 of the Act. In the case of Union of India & others etc. vs. Bombay Tyre International Ltd. etc. reported in AIR 1984 SC 420 , this Court observed that the measure of levy did not conclusively determine the nature of the levy. It was held that the fundamental criterion for computing the value of an excisable article was the price at which the excisable article was sold or was capable of being sold by the manufacturer. It was further held that the price of an article was related to its value and in that value, we have several components, including those components which enhance the commercial value of the article and which give to the article its marketability in the trade. Therefore, the expenses incurred on such factors inter alia have to be included in the assessable value of the article up to the date of the sale, which was the date of delivery.10. In the case of Sidhartha Tubes Ltd. vs. Collector of Central Excise reported in 2000 (115) ELT 32 , this court held that the process of galvanization, though did not amount to "manufacture", resulted in value addition and, therefore, the galvanization charges were includible in the assessable value of the M.S. black pipe.11. The concepts of "manufacture" and "valuation" are two different and distinct concepts. In the present case, we are concerned with valuation. Value is the function of price under section 4(1)(a) of the said Act..." 10. In the case of Hindustan Polymers vs. C.C.E. reported in 1989 (43) ELT 165 , this Court has held that the normal price for which goods are sold at the factory gate has to be taken as the assessable value and addition thereto has to be made where, in addition to the price, the manufacturer levied a charge for an item which was intrinsically necessary to place the manufactured goods on the market. 11. In the present case, we find that the product cleared from the factory was m.s. galvanized pipes. Galvanization had given value addition to the m.s. pipes. The process of galvanization was incidental to the manufacture of the m.s. galvanized pipes and, therefore, the cost of that process was rightly included in the assessable value. We do not find any error in the concurrent findings recorded by the commissioner and by the tribunal. | 1[ds]6. In the present case, the commissioner on facts found that the assessee was clearing from its factory galvanized pipes classifiable under heading 73.06. It was not disputed that the process of galvanization by itself did not amount to manufacture, but when the assessee was selling its product (m.s. galvanized pipes) manufactured out of H.R. coils after passing through various processes (including galvanization) then such a process gave value addition to the product and consequently, the cost of galvanization has to be included in the assessable value. Galvanization added to the quality. Galvanization increased the value of pipes. It enriched the value of goods and, therefore, the cost incurred by the assessee for galvanization was required to be included in the assessable value.7. At the outset, we may state that value is the function of price under section 4(4)(d)(i) of the Act. The concept of "valuation" is different from the concept of "manufacture". Under section 3 of the Act, the levy is on the manufacture of the goods. However, the measure of the levy is the normal price, as defined under section 4(1)(a) of the Act. It is not disputed that galvanization as a process does not amount to manufacture. However, on facts, it has been found by the commissioner that the process of galvanization has taken place before the product is cleared from the place of removal, as defined under section 4(4)(b). Further, on facts, the commissioner has found that galvanization has added to the quality of the product. It has increased the value of the pipes. Hence, the costs incurred by the assessee for galvanization had to be loaded on to the sale price of the pipes. Therefore, the cost had to be included in the assessable value of m.s. galvanized pipes. We do not find any error in the reasoning of the adjudicating authority.In the present case, we find that the product cleared from the factory was m.s. galvanized pipes. Galvanization had given value addition to the m.s. pipes. The process of galvanization was incidental to the manufacture of the m.s. galvanized pipes and, therefore, the cost of that process was rightly included in the assessable value. We do not find any error in the concurrent findings recorded by the commissioner and by the tribunal. | 1 | 2,361 | 456 | ### 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:
included in its assessable value. In this connection, learned counsel relied upon the judgment of this Court in the case of Sidhartha Tubes Ltd. vs. Collector of Central Excise reported in 2000 (115) ELT 32 ; and the decision in the case of Procter & Gamble Hygiene & Health Care Ltd. vs. Commissioner of Central Excise, Bhopal reported in 2005 (9) Scale 559. 6. In the present case, the commissioner on facts found that the assessee was clearing from its factory galvanized pipes classifiable under heading 73.06. It was not disputed that the process of galvanization by itself did not amount to manufacture, but when the assessee was selling its product (m.s. galvanized pipes) manufactured out of H.R. coils after passing through various processes (including galvanization) then such a process gave value addition to the product and consequently, the cost of galvanization has to be included in the assessable value. Galvanization added to the quality. Galvanization increased the value of pipes. It enriched the value of goods and, therefore, the cost incurred by the assessee for galvanization was required to be included in the assessable value.7. At the outset, we may state that value is the function of price under section 4(4)(d)(i) of the Act. The concept of "valuation" is different from the concept of "manufacture". Under section 3 of the Act, the levy is on the manufacture of the goods. However, the measure of the levy is the normal price, as defined under section 4(1)(a) of the Act. It is not disputed that galvanization as a process does not amount to manufacture. However, on facts, it has been found by the commissioner that the process of galvanization has taken place before the product is cleared from the place of removal, as defined under section 4(4)(b). Further, on facts, the commissioner has found that galvanization has added to the quality of the product. It has increased the value of the pipes. Hence, the costs incurred by the assessee for galvanization had to be loaded on to the sale price of the pipes. Therefore, the cost had to be included in the assessable value of m.s. galvanized pipes. We do not find any error in the reasoning of the adjudicating authority. 8. In the case of Union of India & others vs. Bombay Tyre International Ltd. report in AIR 1984 SC 420 , this Court observed as follows: "....the price of an article is related to its value, and into that value one has to pour several components, including those which enrich the value of the product and which give to an article, its marketability in the trade. Therefore, the expenses incurred on account of the several factors, which have contributed to the value of the product up to the date of sale, are liable to included in the assessable value." 9. Recently, this court in the case of Procter & Gamble Hygiene & Health Care (supra), has observed as follows: "9. This case relates to valuation. At the outset, we would like to clarify certain concepts under the Excise Law. The levy of excise duty is on the "manufacture" of goods. The excisable event is the manufacture. The levy is on the manufacture. The measure or the yardstick for computing the levy is the "normal price" under section 4(1)(a) of the Act. The concept of "excisability" is different from the concept of "valuation". In the present case, as stated above, we are concerned with valuation and not with excisability. In the present case, there is no dispute that AMS came under sub-heading 3402.90 of the Tariff. There is no dispute in the present case that AMS was dutiable under section 3 of the Act. In the case of Union of India & others etc. vs. Bombay Tyre International Ltd. etc. reported in AIR 1984 SC 420 , this Court observed that the measure of levy did not conclusively determine the nature of the levy. It was held that the fundamental criterion for computing the value of an excisable article was the price at which the excisable article was sold or was capable of being sold by the manufacturer. It was further held that the price of an article was related to its value and in that value, we have several components, including those components which enhance the commercial value of the article and which give to the article its marketability in the trade. Therefore, the expenses incurred on such factors inter alia have to be included in the assessable value of the article up to the date of the sale, which was the date of delivery.10. In the case of Sidhartha Tubes Ltd. vs. Collector of Central Excise reported in 2000 (115) ELT 32 , this court held that the process of galvanization, though did not amount to "manufacture", resulted in value addition and, therefore, the galvanization charges were includible in the assessable value of the M.S. black pipe.11. The concepts of "manufacture" and "valuation" are two different and distinct concepts. In the present case, we are concerned with valuation. Value is the function of price under section 4(1)(a) of the said Act..." 10. In the case of Hindustan Polymers vs. C.C.E. reported in 1989 (43) ELT 165 , this Court has held that the normal price for which goods are sold at the factory gate has to be taken as the assessable value and addition thereto has to be made where, in addition to the price, the manufacturer levied a charge for an item which was intrinsically necessary to place the manufactured goods on the market. 11. In the present case, we find that the product cleared from the factory was m.s. galvanized pipes. Galvanization had given value addition to the m.s. pipes. The process of galvanization was incidental to the manufacture of the m.s. galvanized pipes and, therefore, the cost of that process was rightly included in the assessable value. We do not find any error in the concurrent findings recorded by the commissioner and by the tribunal.
### Response:
1
### Explanation:
6. In the present case, the commissioner on facts found that the assessee was clearing from its factory galvanized pipes classifiable under heading 73.06. It was not disputed that the process of galvanization by itself did not amount to manufacture, but when the assessee was selling its product (m.s. galvanized pipes) manufactured out of H.R. coils after passing through various processes (including galvanization) then such a process gave value addition to the product and consequently, the cost of galvanization has to be included in the assessable value. Galvanization added to the quality. Galvanization increased the value of pipes. It enriched the value of goods and, therefore, the cost incurred by the assessee for galvanization was required to be included in the assessable value.7. At the outset, we may state that value is the function of price under section 4(4)(d)(i) of the Act. The concept of "valuation" is different from the concept of "manufacture". Under section 3 of the Act, the levy is on the manufacture of the goods. However, the measure of the levy is the normal price, as defined under section 4(1)(a) of the Act. It is not disputed that galvanization as a process does not amount to manufacture. However, on facts, it has been found by the commissioner that the process of galvanization has taken place before the product is cleared from the place of removal, as defined under section 4(4)(b). Further, on facts, the commissioner has found that galvanization has added to the quality of the product. It has increased the value of the pipes. Hence, the costs incurred by the assessee for galvanization had to be loaded on to the sale price of the pipes. Therefore, the cost had to be included in the assessable value of m.s. galvanized pipes. We do not find any error in the reasoning of the adjudicating authority.In the present case, we find that the product cleared from the factory was m.s. galvanized pipes. Galvanization had given value addition to the m.s. pipes. The process of galvanization was incidental to the manufacture of the m.s. galvanized pipes and, therefore, the cost of that process was rightly included in the assessable value. We do not find any error in the concurrent findings recorded by the commissioner and by the tribunal.
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M. VANAJA Vs. M. SARLA DEVI (DEAD) | her husband to be taken care of. The Appellant was brought up by the Respondent and her husband, Narasimhulu Naidu. The School and College records and other documents that were filed in Court by the Appellant would show that the Respondent and her husband were shown as the parents of the Appellant. Eventually, the Appellant married and started living separately. After the death of Narasimhulu Naidu, the Respondent was residing in the suit schedule property and was in enjoyment of the properties of Narasimhulu Naidu. The request made by the Appellant for partition of the properties was turned down by the Respondent leading to the filing of the Civil Suit. 9. The only points that arises for our consideration are whether the Appellant has proved that she has been adopted by the Respondent and Respondents husband, whether she is entitled to a declaration that she is the daughter of the Respondent and Narasimhulu Naidu, and whether the Appellant is entitled to partition of the properties belonging to Narasimhulu Naidu. 10. Section 6 of the Act of 1956, prescribes the pre- requisites for a valid adoption, which are :- 6 Requisites of a valid adoption – No adoption shall be valid unless – (i) the person adopting has the capacity, and also the right, to take in adoption, (ii) the person giving in adoption has the capacity to do so; (iii) the person adopted is capable of being taken in adoption; and (iv) the adoption is made in compliance with the other conditions mentioned in this Chapter 11. Section 7 provides that the male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption. The consent of his wife has been made mandatory by the proviso to Section 7. Section 9 deals with persons who are capable of giving a child in adoption. The other conditions for a valid adoption are stipulated in Section 11 of the Act of 1956. One such condition is 11 (6) which is as under:- 11. Other conditions for a valid adoption. xx (vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of his birth (or in the case of an abandoned child or child whose parentage is not known, from the place or family where it has been brought up) to the family of its adoption: Provided that the performance of data homam shall not be essential to the validity of adoption 12. A plain reading of the above provisions would make it clear that compliance of the conditions in Chapter I of the Act of 1956 is mandatory for an adoption to be treated as valid. The two important conditions as mentioned in Sections 7 and 11 of the Act of 1956 are the consent of the wife before a male Hindu adopts a child and proof of the ceremony of actual giving and taking in adoption. The Appellant admitted in her evidence that she does not have the proof of the ceremony of giving and taking of her in adoption. Admittedly, there is no pleading in the plaint regarding the adoption being in accordance with the provisions of the Act. That apart, the Respondent who is the adoptive mother has categorically stated in her evidence that the Appellant was never adopted though she was merely brought up by her and her husband. Even the grand- mother of the Appellant who appeared before the Court as PW-3 deposed that the Appellant who lost her parents in her childhood was given to the Respondent and her husband to be brought up. PW 3 also stated in her evidence that the Appellant was not adopted by the Respondent and her husband. Therefore, the Appellant had failed to prove that she has been adopted by the Respondent and her husband Narasimhulu Naidu. 13. The Appellant relied upon a judgment of this Court in L. Debi Prasad (Dead) by Lrs.(supra) to submit that abundant evidence submitted by her before Court would point to the fact that she was brought up as the daughter of the Respondent and her husband (Late) Narasimhulu Naidu. Such evidence can be taken into account to draw inference that she was adopted by them. The facts in L. Debi Prasad (Dead) by Lrs. (supra) case are similar to those in the instant case. In that case, Shyam Behari Lal was adopted by Gopal Das in the year 1892 when he was an infant. Shyam Behari Lal was unable to establish the actual adoption but has produced considerable documentary evidence to show that he was treated as the son of Gopal Das for a quarter of century. This Court accepted the submission of Shyam Behari Lal and held that there was sufficient evidence on record to infer a valid adoption. Though the facts are similar, we are unable to apply the law laid down in L. Debi Prasad (Dead) by Lrs. (supra) to the instant case. L. Debi Prasad (Dead) by Lrs. (supra) case pertains to adoption that took place in the year 1892 and we are concerned with an adoption that has taken place after the Act of 1956 has come into force. Though the Appellant has produced evidence to show that she was treated as a daughter by (Late) Narasimhulu Naidu and the Defendant, she has not been able to establish her adoption. The mandate of the Act of 1956 is that no adoption shall be valid unless it has been made in compliance with the conditions [mentioned in Chapter I of the Act of 1956. The two essential conditions i.e. the consent of the wife and the actual ceremony of adoption have not been established. This Court by its judgment in Ghisalal v. Dhapubai (Dead) by Lrs. & Ors. (2011) 2 SCC 298 held that the consent of the wife is mandatory for proving adoption. | 0[ds]12. A plain reading of the above provisions would make it clear that compliance of the conditions in Chapter I of the Act of 1956 is mandatory for an adoption to be treated as valid. The two important conditions as mentioned in Sections 7 and 11 of the Act of 1956 are the consent of the wife before a male Hindu adopts a child and proof of the ceremony of actual giving and taking in adoption. The Appellant admitted in her evidence that she does not have the proof of the ceremony of giving and taking of her in adoption. Admittedly, there is no pleading in the plaint regarding the adoption being in accordance with the provisions of the Act. That apart, the Respondent who is the adoptive mother has categorically stated in her evidence that the Appellant was never adopted though she was merely brought up by her and her husband. Even the grand- mother of the Appellant who appeared before the Court as PW-3 deposed that the Appellant who lost her parents in her childhood was given to the Respondent and her husband to be brought up. PW 3 also stated in her evidence that the Appellant was not adopted by the Respondent and her husband. Therefore, the Appellant had failed to prove that she has been adopted by the Respondent and her husband Narasimhulu NaiduSuch evidence can be taken into account to draw inference that she was adopted by them. The facts in L. Debi Prasad (Dead) by Lrs. (supra) case are similar to those in the instant case. In that case, Shyam Behari Lal was adopted by Gopal Das in the year 1892 when he was an infant. Shyam Behari Lal was unable to establish the actual adoption but has produced considerable documentary evidence to show that he was treated as the son of Gopal Das for a quarter of century. This Court accepted the submission of Shyam Behari Lal and held that there was sufficient evidence on record to infer a valid adoption. Though the facts are similar, we are unable to apply the law laid down in L. Debi Prasad (Dead) by Lrs. (supra) to the instant case. L. Debi Prasad (Dead) by Lrs. (supra) case pertains to adoption that took place in the year 1892 and we are concerned with an adoption that has taken place after the Act of 1956 has come into force. Though the Appellant has produced evidence to show that she was treated as a daughter by (Late) Narasimhulu Naidu and the Defendant, she has not been able to establish her adoption. The mandate of the Act of 1956 is that no adoption shall be valid unless it has been made in compliance with the conditions [mentioned in Chapter I of the Act of 1956. The two essential conditions i.e. the consent of the wife and the actual ceremony of adoption have not been established. This Court by its judgment in Ghisalal v. Dhapubai (Dead) by Lrs. & Ors. (2011) 2 SCC 298 held that the consent of the wife is mandatory for proving adoption. | 0 | 2,237 | 570 | ### 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:
her husband to be taken care of. The Appellant was brought up by the Respondent and her husband, Narasimhulu Naidu. The School and College records and other documents that were filed in Court by the Appellant would show that the Respondent and her husband were shown as the parents of the Appellant. Eventually, the Appellant married and started living separately. After the death of Narasimhulu Naidu, the Respondent was residing in the suit schedule property and was in enjoyment of the properties of Narasimhulu Naidu. The request made by the Appellant for partition of the properties was turned down by the Respondent leading to the filing of the Civil Suit. 9. The only points that arises for our consideration are whether the Appellant has proved that she has been adopted by the Respondent and Respondents husband, whether she is entitled to a declaration that she is the daughter of the Respondent and Narasimhulu Naidu, and whether the Appellant is entitled to partition of the properties belonging to Narasimhulu Naidu. 10. Section 6 of the Act of 1956, prescribes the pre- requisites for a valid adoption, which are :- 6 Requisites of a valid adoption – No adoption shall be valid unless – (i) the person adopting has the capacity, and also the right, to take in adoption, (ii) the person giving in adoption has the capacity to do so; (iii) the person adopted is capable of being taken in adoption; and (iv) the adoption is made in compliance with the other conditions mentioned in this Chapter 11. Section 7 provides that the male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption. The consent of his wife has been made mandatory by the proviso to Section 7. Section 9 deals with persons who are capable of giving a child in adoption. The other conditions for a valid adoption are stipulated in Section 11 of the Act of 1956. One such condition is 11 (6) which is as under:- 11. Other conditions for a valid adoption. xx (vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of his birth (or in the case of an abandoned child or child whose parentage is not known, from the place or family where it has been brought up) to the family of its adoption: Provided that the performance of data homam shall not be essential to the validity of adoption 12. A plain reading of the above provisions would make it clear that compliance of the conditions in Chapter I of the Act of 1956 is mandatory for an adoption to be treated as valid. The two important conditions as mentioned in Sections 7 and 11 of the Act of 1956 are the consent of the wife before a male Hindu adopts a child and proof of the ceremony of actual giving and taking in adoption. The Appellant admitted in her evidence that she does not have the proof of the ceremony of giving and taking of her in adoption. Admittedly, there is no pleading in the plaint regarding the adoption being in accordance with the provisions of the Act. That apart, the Respondent who is the adoptive mother has categorically stated in her evidence that the Appellant was never adopted though she was merely brought up by her and her husband. Even the grand- mother of the Appellant who appeared before the Court as PW-3 deposed that the Appellant who lost her parents in her childhood was given to the Respondent and her husband to be brought up. PW 3 also stated in her evidence that the Appellant was not adopted by the Respondent and her husband. Therefore, the Appellant had failed to prove that she has been adopted by the Respondent and her husband Narasimhulu Naidu. 13. The Appellant relied upon a judgment of this Court in L. Debi Prasad (Dead) by Lrs.(supra) to submit that abundant evidence submitted by her before Court would point to the fact that she was brought up as the daughter of the Respondent and her husband (Late) Narasimhulu Naidu. Such evidence can be taken into account to draw inference that she was adopted by them. The facts in L. Debi Prasad (Dead) by Lrs. (supra) case are similar to those in the instant case. In that case, Shyam Behari Lal was adopted by Gopal Das in the year 1892 when he was an infant. Shyam Behari Lal was unable to establish the actual adoption but has produced considerable documentary evidence to show that he was treated as the son of Gopal Das for a quarter of century. This Court accepted the submission of Shyam Behari Lal and held that there was sufficient evidence on record to infer a valid adoption. Though the facts are similar, we are unable to apply the law laid down in L. Debi Prasad (Dead) by Lrs. (supra) to the instant case. L. Debi Prasad (Dead) by Lrs. (supra) case pertains to adoption that took place in the year 1892 and we are concerned with an adoption that has taken place after the Act of 1956 has come into force. Though the Appellant has produced evidence to show that she was treated as a daughter by (Late) Narasimhulu Naidu and the Defendant, she has not been able to establish her adoption. The mandate of the Act of 1956 is that no adoption shall be valid unless it has been made in compliance with the conditions [mentioned in Chapter I of the Act of 1956. The two essential conditions i.e. the consent of the wife and the actual ceremony of adoption have not been established. This Court by its judgment in Ghisalal v. Dhapubai (Dead) by Lrs. & Ors. (2011) 2 SCC 298 held that the consent of the wife is mandatory for proving adoption.
### Response:
0
### Explanation:
12. A plain reading of the above provisions would make it clear that compliance of the conditions in Chapter I of the Act of 1956 is mandatory for an adoption to be treated as valid. The two important conditions as mentioned in Sections 7 and 11 of the Act of 1956 are the consent of the wife before a male Hindu adopts a child and proof of the ceremony of actual giving and taking in adoption. The Appellant admitted in her evidence that she does not have the proof of the ceremony of giving and taking of her in adoption. Admittedly, there is no pleading in the plaint regarding the adoption being in accordance with the provisions of the Act. That apart, the Respondent who is the adoptive mother has categorically stated in her evidence that the Appellant was never adopted though she was merely brought up by her and her husband. Even the grand- mother of the Appellant who appeared before the Court as PW-3 deposed that the Appellant who lost her parents in her childhood was given to the Respondent and her husband to be brought up. PW 3 also stated in her evidence that the Appellant was not adopted by the Respondent and her husband. Therefore, the Appellant had failed to prove that she has been adopted by the Respondent and her husband Narasimhulu NaiduSuch evidence can be taken into account to draw inference that she was adopted by them. The facts in L. Debi Prasad (Dead) by Lrs. (supra) case are similar to those in the instant case. In that case, Shyam Behari Lal was adopted by Gopal Das in the year 1892 when he was an infant. Shyam Behari Lal was unable to establish the actual adoption but has produced considerable documentary evidence to show that he was treated as the son of Gopal Das for a quarter of century. This Court accepted the submission of Shyam Behari Lal and held that there was sufficient evidence on record to infer a valid adoption. Though the facts are similar, we are unable to apply the law laid down in L. Debi Prasad (Dead) by Lrs. (supra) to the instant case. L. Debi Prasad (Dead) by Lrs. (supra) case pertains to adoption that took place in the year 1892 and we are concerned with an adoption that has taken place after the Act of 1956 has come into force. Though the Appellant has produced evidence to show that she was treated as a daughter by (Late) Narasimhulu Naidu and the Defendant, she has not been able to establish her adoption. The mandate of the Act of 1956 is that no adoption shall be valid unless it has been made in compliance with the conditions [mentioned in Chapter I of the Act of 1956. The two essential conditions i.e. the consent of the wife and the actual ceremony of adoption have not been established. This Court by its judgment in Ghisalal v. Dhapubai (Dead) by Lrs. & Ors. (2011) 2 SCC 298 held that the consent of the wife is mandatory for proving adoption.
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Chingleput Bottlers Vs. Majestic Bottling Company | forfeiture but merely an attempt at acquisition that fails, the legitimate expectation of a renewal of the licence or con formation of the membership is one which raises the question of what it is that has happened to make the applicant unsuitable for the membership or licence for which he was previously thought suitable.In such cases, Megarry, V.C. felt that much help cannot be had from discussing whether natural justice or fairness was the more appropriate term. He observes that if one expects that natural justice is a flexible term which impose, different requirement in different cases, it is capable of applying appropriately to the whole range of situations indicated by the terms such as judicial, quasi-, judicial and administrative. The content of the "duty to act fairly did not impose on the Board to give either oral hearing to the applicant or to disclose the case against him nor was . it under any obligation to give reasons for a decision. The learned Judge then went on to say that there was no obligation for the Board to give the applicant even the gist of the reasons while they refused his application, or proposed to do so, and added.The concepts of natural justice and the duty to be fair must not be allowed to discredit themselves while ranking unreasonable requirements and imposing undue burdens."24. In such cases; the right to hearing has been denied on the ground that the claim or interest or legitimate expectation is a more privilege or licence. This is in consonance with the decision of a Constitution Bench of this Court in Kishan Chand Arora v. Commissioner of Police, Calcutta following the judgment of the Privy Council in Nakkuda Ali v. M.F.De S. Jayaratnes case.25. It is beyond the scope of the present judgment to enter into a discussion on the apparent conflict between the decision . Of the Privy Council in Nakkuda Alis case and the observation of Lord Reid in Baldwins case. It would appear that the long line of cases beginning with Baldwins case and ending with Darcy Ryans case are cases dealing with interference with property rights, deprivation of membership of professional or other non-statutory bodies, dismissal from office, imposition of penalties and deprivation of advantages etc. Both the Privy Council as well as this Court have required strict adherence to the rules of natural justice where a public authority or body has to deal with rights. But the principle that there was a duly to observe the audi alteram partem rule may not apply to cases which relate not to rights or legal expectations but to mere privilege or licence.It is now well-settled that while considering the question of breach of the principles of natural justice, the Court should not proceed as if there are inflexible rules of natural justice of universal application. Each case depends on its own circumstances. Rules of natural justice vary with the varying constitutions of statutory bodies and the rules prescribed by the legislature under which they have to act.26. There is nothing in the language of r.7 of the Rules to suggest that in refusing to grant the privilege, the Commissioner is obliged to act judicially. The order refusing a licence under r.7 is purely an administrative or executive order and is not open to appeal or revision. There is no lis between the Commissioner and the person who is refused such privilege. The power of refusal of licence unlike the power to grant is not subject to any pre- condition.27. It must follow that the grant of a liquor licence under r.7 of the Rules does not involve any right or expectation but it is a matter of privilege. The Commissioner was there fore under no obligation either to disclose the sources of information or the gist of the information that he had. All that was required was that he should act fairly, and deal with the applications without any bias, and not in an . arbitrary or capricious manner.28. There is no suggestion of any mala fides on the part of the Commissioner or the State Government. The Commissioner heard both the parties after he had an inquiry made through the collector to adjudge their suitability for the grant of the licence. The Commissioner had issued a questionnaire and had the material collected by the Collector. The Commissioner was entitled to act on the report of the Collector and also on other material gathered by him during the course of the inquiry. There is no requirement under the Act for a confronted hearing like the hearing contemplated between rival claimants for the grant of a stage carriage permit under the Motor Vehicles Act, 1939 into their respective merits an d demerits. The Commissioner separately heard both the parties and had their statements recorded with respect to all the relevant aspects It cannot be said that the Commissioner in dealing with the applications did not act fairly in not furnishing a copy of the report of the Collector or in taking a representation from Messrs Majestic Bottling Company.,The High Court could not have in proceedings under Art. 226 of the Constitution interfered with the impugned order of the Commissioner merely because on a reappraisal of the evidence it might have come to a contrary conclusion. There was no error of jurisdiction on the part of the Commissioner nor was the impugned order vitiated by any error apparent on the face of the record. The fin ding reached by the Commissioner that the application made by Messrs Chingleput Bottlers was not made bona fide on their own account but as benanmi for others is a finding based on appreciation A of evidence. The Commissioner was entitled to rely upon the facts found by the Collector. It may be pointed out that the Collectors report is entirely based on the statement of V. Ramabadran, managing partner of Messrs Chingleput Bottlers. The High Court was therefore justified in dismissing the appeal preferred by Messrs Chingleput Bottlers.29. | 1[ds]It is said that the gr ant of licence under r. 7 is subject to the prior approval of the State Government and is in the discretion of the State Government. The High Court is not the granting authority and therefore had no power to issue a writ of mandamus directing the Commissioner to grant a licence to Messrs Majestic Bottling Company. Thesecond question is whether the Commissioner acted in breach of the rules natural justice in not furnishing to Messrs Chingleput Bottlers a copy of the report submitted by the Collector and other material gathered by him during the course of the inquiry tending to show that they were benamidars of one O.H. Kumar, the previous licensee.It is said that Messrs Majestic Bottling Company had at the separate hearing before the Commissioner submitted a brief styled as a representation containing several documents in opposition to the application made by Messrs Chingleput Bottlers on the ground that their application was benami without furnishing a copy of the same to them and this must have influenced the mind of the Commissioner. Even if the Commissioner was not acting in a judicial Or quasi judicial capacity, he was required to act fairly. The rules of natural justice therefore required that Messrs Chingleput Bottlers should not be deprived of this business without knowing the case they had to meet. Both the questions that arise will have to be dealt withfirst issue, as already indicated, raises a question of prime importance and of some difficulty. It would therefore be convenient, in the first instance, to deal with the appeal preferred by the State Government. It is urged that the High Court had no jurisdiction to issue a wri t of mandamus ordaining the Commissioner to grant a licence to Messrs Chingleput Bottlers under r. 7 of the Rules without the prior approval of the State Government. It is said that although a writ of mandamus may be a necessary adjunct to a writ of certiorari the proper course for the High Court to have adopted was, if it was satisfied that the impugned order of the Commissioner was liable to be quashed insofar as he rejected the application made by Messrs Majestic Bottling Company on the ground that there was an error apparent on the face of the record, to have issued a writ of mandamus Commissioner to redetermine the question as to the grant of such privilege. Reliance is placed on de Smiths Judicial Review of Administrative Action, 4th edn. at pp.341 and 544. The contention must, in our opinion. prevail.In order that a writ of mandamus may issue to compel the Commissioner to grant the licence, it must be shown that under the Act and the Rules framed thereunder there was a legal duty imposed on the Commissioner to issue a licence under r. 7 of the Rules without the prior approval of the State Government and that Messrs Majestic Bottling Company had a corresponding legal right for its enforcement. No mandamus will lie where the duty sought to be enforced is of a discretionary nature nor will a mandamus issue to compel the performance by such public body or authority of an act contrary tomust follow that the grant of a liquor licence under r.7 of the Rules does not involve any right or expectation but it is a matter of privilege. The Commissioner was there fore under no obligation either to disclose the sources of information or the gist of the information that he had. All that was required was that he should act fairly, and deal with the applications without any bias, and not in an . arbitrary or capriciousis no suggestion of any mala fides on the part of the Commissioner or the State Government. The Commissioner heard both the parties after he had an inquiry made through the collector to adjudge their suitability for the grant of the licence. The Commissioner had issued a questionnaire and had the material collected by the Collector. The Commissioner was entitled to act on the report of the Collector and also on other material gathered by him during the course of the inquiry. There is no requirement under the Act for a confronted hearing like the hearing contemplated between rival claimants for the grant of a stage carriage permit underthe Motor Vehicles Act, 1939 into their respective merits an d demerits. The Commissioner separately heard both the parties and had their statements recorded with respect to all the relevant aspects It cannot be said that the Commissioner in dealing with the applications did not act fairly in not furnishing a copy of the report of the Collector or in taking a representation from Messrs Majestic Bottling Company.,The High Court could not have in proceedings under Art. 226 of the Constitution interfered with the impugned order of the Commissioner merely because on a reappraisal of the evidence it might have come to a contrary conclusion. There was no error of jurisdiction on the part of the Commissioner nor was the impugned order vitiated by any error apparent on the face of the record. The fin ding reached by the Commissioner that the application made by Messrs Chingleput Bottlers was not made bona fide on their own account but as benanmi for others is a finding based on appreciation A of evidence. The Commissioner was entitled to rely upon the facts found by the Collector. It may be pointed out that the Collectors report is entirely based on the statement of V. Ramabadran, managing partner of Messrs Chingleput Bottlers. The High Court was therefore justified in dismissing the appeal preferred by Messrs Chingleputt issue, as already indicated, raises a question of prime importance and of some difficulty. It would therefore be convenient, in the first instance, to deal with the appeal preferred by the State Government. It is urged that the High Court had no jurisdiction to issue a wri t of mandamus ordaining the Commissioner to grant a licence to Messrs Chingleput Bottlers under r. 7 of the Rules without the prior approval of the State Government. It is said that although a writ of mandamus may be a necessary adjunct to a writ of certiorari the proper course for the High Court to have adopted was, if it was satisfied that the impugned order of the Commissioner was liable to be quashed insofar as he rejected the application made by Messrs Majestic Bottling Company on the ground that there was an error apparent on the face of the record, to have issued a writ of mandamus Commissioner to redetermine the question as to the grant of such privilege. Reliance is placed on de Smiths Judicial Review of Administrative Action, 4th edn. at pp.341 and 544. The contention must, in our opinion. prevail.In order that a writ of mandamus may issue to compel the Commissioner to grant the licence, it must be shown that under the Act and the Rules framed thereunder there was a legal duty imposed on the Commissioner to issue a licence under r. 7 of the Rules without the prior approval of the State Government and that Messrs Majestic Bottling Company had a corresponding legal right for its enforcement. No mandamus will lie where the duty sought to be enforced is of a discretionary nature nor will a mandamus issue to compel the performance by such public body or authority of an act contrary tolaw. The Commissioner of Prohibition &Excise was under no legal duty to grant a licence to Messrs Majestic Bottling Company till he received the prior approval of the State Government under r. 7. Even assuming that the Commissioner recommended the grant of a licence, to them under r. 7, the State Government were under no compulsion to grant such prior approval. The grant or refusal of such licence was entirely in the discretion of the State Government. The High Court had no jurisdiction to issue a writ of Mandamus to the Commissioner to grant a licence to Messrs Majestic Bottling Company contrary to the provisions of r. 7 of theour judgment, the High Court exceeded its jurisdiction in issuing a writ of mandamus directing the Commissioner to grant a licence to Messrs Majestic Bottling Company without the prior . approval of the State Government as enjoined by r. 7 of the Rules. The High Court was unduly technical in applying the rules of pleadings. Absence of a specific plea in nature of demurrer would not invest the High Court with jurisdiction to issue a writ of mandamus ordaining the Commissioner to grant a licence to Messrs Majestic Bottling Company under r. 7 of the Rules without the prior approval of the State Government which was a condition pre-requisite for the grant of such privilege. It is regrettable that the High Court should have short- circuited the whole procedure upon a wrongful assumption of its own powers. The view taken by the High Court is manifestly erroneous. Otherwise, the statutory requirement of such prior approval of the State Government under r. 7 would be rendered wholly otiose.We should not be understood as laying down an inflexible rule that the High Courts cannot, under any circumstances, regulate or control the manner of grant of a liquor licence by the issue of a writ of mandamus. It would all depend upon the facts and circumstances as to whether the High Court should issue a writ of mandamus or not. The grant of a liquor licence is a matter of privilege. In the very nature of things, the grant of refusal of licence is in the discretion of the State Government. Normally, where the statute vests a discretionary power upon an administrative authority, the Court would not interfere with the exercise of such discretion unless it is made with oblique motives or extraneous purposes or upon extraneous considerations. The present case does not fall within the rule laid down in K. N. Guruswamy v. The State of Mysore ? and P. Bhooma Reddy v. State of Mysore &ors. The decisions in Guruswamys and Bhooma Reddys cases are both in consonance with the well-settled principle that the High Court can always issue a writ of mandamus under Art. 226 of the Constitution against a public authority to compel the performance of a public duty where such authority acts in violation of the law. | 1 | 9,487 | 1,819 | ### 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:
forfeiture but merely an attempt at acquisition that fails, the legitimate expectation of a renewal of the licence or con formation of the membership is one which raises the question of what it is that has happened to make the applicant unsuitable for the membership or licence for which he was previously thought suitable.In such cases, Megarry, V.C. felt that much help cannot be had from discussing whether natural justice or fairness was the more appropriate term. He observes that if one expects that natural justice is a flexible term which impose, different requirement in different cases, it is capable of applying appropriately to the whole range of situations indicated by the terms such as judicial, quasi-, judicial and administrative. The content of the "duty to act fairly did not impose on the Board to give either oral hearing to the applicant or to disclose the case against him nor was . it under any obligation to give reasons for a decision. The learned Judge then went on to say that there was no obligation for the Board to give the applicant even the gist of the reasons while they refused his application, or proposed to do so, and added.The concepts of natural justice and the duty to be fair must not be allowed to discredit themselves while ranking unreasonable requirements and imposing undue burdens."24. In such cases; the right to hearing has been denied on the ground that the claim or interest or legitimate expectation is a more privilege or licence. This is in consonance with the decision of a Constitution Bench of this Court in Kishan Chand Arora v. Commissioner of Police, Calcutta following the judgment of the Privy Council in Nakkuda Ali v. M.F.De S. Jayaratnes case.25. It is beyond the scope of the present judgment to enter into a discussion on the apparent conflict between the decision . Of the Privy Council in Nakkuda Alis case and the observation of Lord Reid in Baldwins case. It would appear that the long line of cases beginning with Baldwins case and ending with Darcy Ryans case are cases dealing with interference with property rights, deprivation of membership of professional or other non-statutory bodies, dismissal from office, imposition of penalties and deprivation of advantages etc. Both the Privy Council as well as this Court have required strict adherence to the rules of natural justice where a public authority or body has to deal with rights. But the principle that there was a duly to observe the audi alteram partem rule may not apply to cases which relate not to rights or legal expectations but to mere privilege or licence.It is now well-settled that while considering the question of breach of the principles of natural justice, the Court should not proceed as if there are inflexible rules of natural justice of universal application. Each case depends on its own circumstances. Rules of natural justice vary with the varying constitutions of statutory bodies and the rules prescribed by the legislature under which they have to act.26. There is nothing in the language of r.7 of the Rules to suggest that in refusing to grant the privilege, the Commissioner is obliged to act judicially. The order refusing a licence under r.7 is purely an administrative or executive order and is not open to appeal or revision. There is no lis between the Commissioner and the person who is refused such privilege. The power of refusal of licence unlike the power to grant is not subject to any pre- condition.27. It must follow that the grant of a liquor licence under r.7 of the Rules does not involve any right or expectation but it is a matter of privilege. The Commissioner was there fore under no obligation either to disclose the sources of information or the gist of the information that he had. All that was required was that he should act fairly, and deal with the applications without any bias, and not in an . arbitrary or capricious manner.28. There is no suggestion of any mala fides on the part of the Commissioner or the State Government. The Commissioner heard both the parties after he had an inquiry made through the collector to adjudge their suitability for the grant of the licence. The Commissioner had issued a questionnaire and had the material collected by the Collector. The Commissioner was entitled to act on the report of the Collector and also on other material gathered by him during the course of the inquiry. There is no requirement under the Act for a confronted hearing like the hearing contemplated between rival claimants for the grant of a stage carriage permit under the Motor Vehicles Act, 1939 into their respective merits an d demerits. The Commissioner separately heard both the parties and had their statements recorded with respect to all the relevant aspects It cannot be said that the Commissioner in dealing with the applications did not act fairly in not furnishing a copy of the report of the Collector or in taking a representation from Messrs Majestic Bottling Company.,The High Court could not have in proceedings under Art. 226 of the Constitution interfered with the impugned order of the Commissioner merely because on a reappraisal of the evidence it might have come to a contrary conclusion. There was no error of jurisdiction on the part of the Commissioner nor was the impugned order vitiated by any error apparent on the face of the record. The fin ding reached by the Commissioner that the application made by Messrs Chingleput Bottlers was not made bona fide on their own account but as benanmi for others is a finding based on appreciation A of evidence. The Commissioner was entitled to rely upon the facts found by the Collector. It may be pointed out that the Collectors report is entirely based on the statement of V. Ramabadran, managing partner of Messrs Chingleput Bottlers. The High Court was therefore justified in dismissing the appeal preferred by Messrs Chingleput Bottlers.29.
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their respective merits an d demerits. The Commissioner separately heard both the parties and had their statements recorded with respect to all the relevant aspects It cannot be said that the Commissioner in dealing with the applications did not act fairly in not furnishing a copy of the report of the Collector or in taking a representation from Messrs Majestic Bottling Company.,The High Court could not have in proceedings under Art. 226 of the Constitution interfered with the impugned order of the Commissioner merely because on a reappraisal of the evidence it might have come to a contrary conclusion. There was no error of jurisdiction on the part of the Commissioner nor was the impugned order vitiated by any error apparent on the face of the record. The fin ding reached by the Commissioner that the application made by Messrs Chingleput Bottlers was not made bona fide on their own account but as benanmi for others is a finding based on appreciation A of evidence. The Commissioner was entitled to rely upon the facts found by the Collector. It may be pointed out that the Collectors report is entirely based on the statement of V. Ramabadran, managing partner of Messrs Chingleput Bottlers. The High Court was therefore justified in dismissing the appeal preferred by Messrs Chingleputt issue, as already indicated, raises a question of prime importance and of some difficulty. It would therefore be convenient, in the first instance, to deal with the appeal preferred by the State Government. It is urged that the High Court had no jurisdiction to issue a wri t of mandamus ordaining the Commissioner to grant a licence to Messrs Chingleput Bottlers under r. 7 of the Rules without the prior approval of the State Government. It is said that although a writ of mandamus may be a necessary adjunct to a writ of certiorari the proper course for the High Court to have adopted was, if it was satisfied that the impugned order of the Commissioner was liable to be quashed insofar as he rejected the application made by Messrs Majestic Bottling Company on the ground that there was an error apparent on the face of the record, to have issued a writ of mandamus Commissioner to redetermine the question as to the grant of such privilege. Reliance is placed on de Smiths Judicial Review of Administrative Action, 4th edn. at pp.341 and 544. The contention must, in our opinion. prevail.In order that a writ of mandamus may issue to compel the Commissioner to grant the licence, it must be shown that under the Act and the Rules framed thereunder there was a legal duty imposed on the Commissioner to issue a licence under r. 7 of the Rules without the prior approval of the State Government and that Messrs Majestic Bottling Company had a corresponding legal right for its enforcement. No mandamus will lie where the duty sought to be enforced is of a discretionary nature nor will a mandamus issue to compel the performance by such public body or authority of an act contrary tolaw. The Commissioner of Prohibition &Excise was under no legal duty to grant a licence to Messrs Majestic Bottling Company till he received the prior approval of the State Government under r. 7. Even assuming that the Commissioner recommended the grant of a licence, to them under r. 7, the State Government were under no compulsion to grant such prior approval. The grant or refusal of such licence was entirely in the discretion of the State Government. The High Court had no jurisdiction to issue a writ of Mandamus to the Commissioner to grant a licence to Messrs Majestic Bottling Company contrary to the provisions of r. 7 of theour judgment, the High Court exceeded its jurisdiction in issuing a writ of mandamus directing the Commissioner to grant a licence to Messrs Majestic Bottling Company without the prior . approval of the State Government as enjoined by r. 7 of the Rules. The High Court was unduly technical in applying the rules of pleadings. Absence of a specific plea in nature of demurrer would not invest the High Court with jurisdiction to issue a writ of mandamus ordaining the Commissioner to grant a licence to Messrs Majestic Bottling Company under r. 7 of the Rules without the prior approval of the State Government which was a condition pre-requisite for the grant of such privilege. It is regrettable that the High Court should have short- circuited the whole procedure upon a wrongful assumption of its own powers. The view taken by the High Court is manifestly erroneous. Otherwise, the statutory requirement of such prior approval of the State Government under r. 7 would be rendered wholly otiose.We should not be understood as laying down an inflexible rule that the High Courts cannot, under any circumstances, regulate or control the manner of grant of a liquor licence by the issue of a writ of mandamus. It would all depend upon the facts and circumstances as to whether the High Court should issue a writ of mandamus or not. The grant of a liquor licence is a matter of privilege. In the very nature of things, the grant of refusal of licence is in the discretion of the State Government. Normally, where the statute vests a discretionary power upon an administrative authority, the Court would not interfere with the exercise of such discretion unless it is made with oblique motives or extraneous purposes or upon extraneous considerations. The present case does not fall within the rule laid down in K. N. Guruswamy v. The State of Mysore ? and P. Bhooma Reddy v. State of Mysore &ors. The decisions in Guruswamys and Bhooma Reddys cases are both in consonance with the well-settled principle that the High Court can always issue a writ of mandamus under Art. 226 of the Constitution against a public authority to compel the performance of a public duty where such authority acts in violation of the law.
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CLP INDIA PVT LTD Vs. GUJARAT URJA VIKAS NIGAM LTD. | recent projects such as Mejina, it was assigned debt equity ratio of 70:30 on capital structure as specified in the Regulations. This finding has become final. It was contended on behalf of the Appellant that equity has been the primary source of capital. Thereafter,in paragraph A-10, it was found by the Appellate Tribunal that owners take upon themselves business related risk and are entitled to interest on capital investment,but the return is to be governed by the scheme of determination of tariff for the supply of electricity as mandated by the law in place. The Appellate Tribunal further proceeds to hold that the scheme provides for assured Return on Equity (ROE) which is at the rate of 14% on the equity employed for the purpose of supplying electricity. The scheme does not permit return on investment made on projects other than for supply of electricity to be recovered from supply of electricity. The Tribunal went on to hold that the DVC Act does not recognise capital as borrowings and there is no reference about repayment of such capital to the participating Governments. The Appellate Tribunal proceeds to hold that the capital infused by participating Governments is in the nature of equity capital and for the determination of tariff, the same would be eligible for return on equity but the Appellate Tribunal does not end there. It clearly provides that the return on equity is as may be permitted by the tariff Regulation of 2004. It is thereafter that the Appellate Tribunal in para 15 proceeded to hold that the DVC Act provides for interest on capital which is contributed by the participating Governments. The accrued interest due to the Governments apparently has been allowed to be retained by the Appellant. The same however came to be ploughed back into the capital with the tacit consent of the participating Governments. Thereafter, it is stated that this has to be provided to the DVC as per the provisions of Section 38 of the DVC Act. It is thereafter paragraph A-16 which we have already extracted, the Tribunal proceeded to observe that under the DVC Act if there is any deficit in the capital contributed by the participating Governments,it is to be made good by taking loan on behalf of the participating Governments. The said debt would attract interest. The average interest rate of the repayment payable is to be applied on a 50:50 normative debt capital. This means that out of the aggregate equity including reserves, equity considering the normative debt ratio of 50:50 would be eligible for return on equity as specified in the Regulations and the excess of equity,if any, over the equity earning ratio of 14% is to be considered as interest bearing debt. In the example which has been given it is shown that if the debt equity ratio is 40:60, return on equity at 14% will be available on 50% equity whereas interest would be available at 10% portion of equity and 40% loan which were reduced by repayments. 21. On the basis of the remand, the Commission has worked out the debt equity ratio as directed by the Appellate Tribunal. It has further provided return on equity at the rate of 14% on the equity portion, namely 50%. In respect of the debt portion, interest has been calculated no doubt after deducting depreciation, the legality of which is the subject matter of the other contention which we will deal with separately. It is quite clear to us that Appellant has already been given return on equity in terms of the tariff Regulation in respect of capital on the basis of debt equity ratio which has been fixed by the Appellate Tribunal on a ratio which has become final between the parties. 22. Though a perusal of para A-9 of order dated 23.11.2007 may appear to show that equity has been found to be the main source of capital, a perusal of paragraph A-10,A-16 and more importantly E-13 would show that capital Under Section 38 of the DVC Act has been understood as the value of the operating assets when they were first put to commercial use. Capital is also understood not as equity alone but it has been understood both as loan and equity. The ratio between loan and equity is also fixed in respect of the old projects at 50:50 and under the new projects it is at 70:30.It is further clear from paragraph E-13 of the order of the Appellate Tribunal dated 23.11.2007 that the appellate Tribunal contemplated that the equity component would remain static and it would earn the rate of return as provided in the tariff Regulation. As far as the loan component is concerned, it would get reduced on account of repayments. Therefore, the recovery as contemplated under the Regulations was found to be in two forms, namely, either as return on equity in respect of the equity portion and as interest on the loan component. 31. In the present case, the clear agreement between the parties was that interest on the sum of `53.90 crores was payable for the specified period 01.07.2003 to 31.12.2009.Therefore, CLPs claim that any amount was payable, for any period prior to 01.07.2003, was not tenable. Had CLP wished so, nothing prevented it to claim for it during negotiations and have it included as a term of the contract. Once having settled for a specified sum, on an amount (`53.90 crores) that was only fictionally a loan - and treated as such, for purpose of fixing interest payable, considering the equity infused, in excess of the tariff regulations, the absence of any like item, such as interest for prior period, precludes a claim. But it was really part of the equity component. Therefore, interest was per se not payable, but could be paid in terms of the tariff notification or the agreement. No claim on any other legal or equitable considerations could have been made. The findings of the lower authorities are therefore, sound and reasonable. | 0[ds]15. At the outset, it is noticeable that on the issue, whether amounts paid to CLP, for the period 1998 to 2005 onwards, were in excess of what was actually payable by Gujarat Urja, the findings of GERC and the APTEL are concurrent. This court does not discern any unreasonableness or facial omission of material factors, to warrant appellate review19. The submissions of parties are with respect to two notifications dated 30.03.1992 and 06.11.1995. These Notifications were under Section 43(A) of the Supply Act. Concededly, these notifications are statutory and are binding on the parties. Any PPA between a generating company and the purchaser of electricity is subject to such statutory notifications; parties by agreement cannot override statutory provisions, or such notifications, as far as they relate to matters of tariff20. Therefore, the rights and obligations of the parties under the PPA have to be read subject to the statutory provisions. The provisions of the PPA, if they are contrary to the statutory provisions, cannot be given effect to22. The argument of CLP that its unit was essentially gas-based and that the definition of naphtha-based unit meant only that unit which depended entirely on naphtha as a fuel, or that which used naphtha at least to the extent of 50%, in our opinion is not correct25. There is no dispute that the PPA which the parties entered into specifically referred to the notification of 30.03.1992 and further went on to state that for the first Kwh/KW, a plant load factor of 68.5% fixed charges and variable charges were deployed. For generation achieved over and above this by the concerned unit – CLP, an incentive @ 5.75% for every 1% increase over and above the fixed and variable charge payable was agreed to. Significantly, the fixed and variable charges are in consonance with the statutory notification of 30.03.1992 (which was also later amended on 17.01.1994). This much is clear from a plain reading of clause 7.1 of the Schedule VII to the PPA itself. In view of the fact that the notification amended on 06.11.1995 was a statutory one, there cannot be any doubt that it was binding upon the parties. Therefore, the earlier notification which left it free to the parties to negotiate on various aspects, including on the incentive payable, stood amended by Note 2, which was added to clause 1.6 of the tariff. The effect of this statutory incorporation by way of amendment was that incentive no longer became payable. The arguments by the CLP, in the opinion of the Court, that the parties were bound only by the terms of the agreement and that the amendment notification being prospective, could not have altered the terms of the tariff, especially the incentive payable, are insubstantial and have no force. The concurrent findings on this aspect, therefore, are sound and do not call for interference. Likewise, the change of law provision (Clause 6.5 of the PPA) clearly contemplated that any amendment to the prevailing tariff notification (dated 30.03.1992) would bind the parties. Since Note (2) was an amendment, which dealt with the issue of incentive, it cannot now be said that it was inapplicable. The findings of the lower authorities, therefore, are correct; no interference is called forThe concurred findings on this aspect, in the opinion of this court, are reasonable. There is merit in CPLs submission that the earliest point in time, when the cause of action arose, was in May,1996, when Gujarat Urja rejected its contention that incentive was payable in terms of the PPA, notwithstanding the notification of 06.11.1995. Despite this stated position, meetings continued to be held and, what is more, incentive amounts, were paid to CLP. No doubt, no document conclusively stated that CLPs claim was accepted. We do not find any merit in the submission of Gujarat Urja that the issue was kept alive, due to a series of communications. In this regard, APTELs findings about inapplicability of Section 18 of the Limitation Act, are correct. There was no admission on the part of CLP, at least of the kind, that extended the time for preferring an application for recovery of excess payments. It has been consistently ruled by this court that repeated letters, or exchange of communications, do not extend the period of limitation, provided by law.27. The third, and last issue, is with respect to payment of interest on deemed equity. Clause 1.5 of the 30.03.1992 notification provided for interest on loan, as a component of tariff; it stipulated that interest (on outstanding loan) shall be computed as per financial package approved by the Authority (CEA). The PPA of 03.02.1994 (Schedule VII) clause 7.5.10 defined interest on loan capital as the sum of all payments of interest along with bank charges and all associated financing costs paid to the bank annually on the outstanding loans paid by GTEC. … The Central Commissions order of 21.02.2000 led to a stipulation in the tariff regulations of 2001. Eventually, the Tariff Regulations of 2004 was brought into force; it provided for a debt ratio of 70:30 for determination of tariff29. It is thus apparent, that the parties did not harbor any doubt about the period for which the specified interest was payable on such deemed loan. The rate of interest was fixed; likewise, the date from which payment obligations were to arise, too were known. Also, the date upto which the interest on such deemed loan payments were to be made, was known and fixed. In these circumstances, CLPs claim that the payment of interest for a prior period was outstanding, and constituted Gujarat Urjas liability, is insubstantial. In a recent judgment (Uttar Haryana Bijli Vitran Nigam Ltd.and Ors. vs. Adani Power Ltd. and Ors. 2019 (5) SCC 325 ) a similar issue had arisen. The court quoted from the decision in National Thermal Power Corporation Ltd. v. Madhya Pradesh State Electricity Board ((2011)15 SCC 580) where another previous decision was cited with approval on the issue that the express provision for something, in an agreement, meant that other similar matters stood excluded31. In the present case, the clear agreement between the parties was that interest on the sum of `53.90 crores was payable for the specified period 01.07.2003 to 31.12.2009.Therefore, CLPs claim that any amount was payable, for any period prior to 01.07.2003, was not tenable. Had CLP wished so, nothing prevented it to claim for it during negotiations and have it included as a term of the contract. Once having settled for a specified sum, on an amount (`53.90 crores) that was only fictionally a loan - and treated as such, for purpose of fixing interest payable, considering the equity infused, in excess of the tariff regulations, the absence of any like item, such as interest for prior period, precludes a claim. But it was really part of the equity component. Therefore, interest was per se not payable, but could be paid in terms of the tariff notification or the agreement. No claim on any other legal or equitable considerations could have been made. The findings of the lower authorities are therefore, sound and reasonable | 0 | 6,295 | 1,359 | ### Instruction:
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recent projects such as Mejina, it was assigned debt equity ratio of 70:30 on capital structure as specified in the Regulations. This finding has become final. It was contended on behalf of the Appellant that equity has been the primary source of capital. Thereafter,in paragraph A-10, it was found by the Appellate Tribunal that owners take upon themselves business related risk and are entitled to interest on capital investment,but the return is to be governed by the scheme of determination of tariff for the supply of electricity as mandated by the law in place. The Appellate Tribunal further proceeds to hold that the scheme provides for assured Return on Equity (ROE) which is at the rate of 14% on the equity employed for the purpose of supplying electricity. The scheme does not permit return on investment made on projects other than for supply of electricity to be recovered from supply of electricity. The Tribunal went on to hold that the DVC Act does not recognise capital as borrowings and there is no reference about repayment of such capital to the participating Governments. The Appellate Tribunal proceeds to hold that the capital infused by participating Governments is in the nature of equity capital and for the determination of tariff, the same would be eligible for return on equity but the Appellate Tribunal does not end there. It clearly provides that the return on equity is as may be permitted by the tariff Regulation of 2004. It is thereafter that the Appellate Tribunal in para 15 proceeded to hold that the DVC Act provides for interest on capital which is contributed by the participating Governments. The accrued interest due to the Governments apparently has been allowed to be retained by the Appellant. The same however came to be ploughed back into the capital with the tacit consent of the participating Governments. Thereafter, it is stated that this has to be provided to the DVC as per the provisions of Section 38 of the DVC Act. It is thereafter paragraph A-16 which we have already extracted, the Tribunal proceeded to observe that under the DVC Act if there is any deficit in the capital contributed by the participating Governments,it is to be made good by taking loan on behalf of the participating Governments. The said debt would attract interest. The average interest rate of the repayment payable is to be applied on a 50:50 normative debt capital. This means that out of the aggregate equity including reserves, equity considering the normative debt ratio of 50:50 would be eligible for return on equity as specified in the Regulations and the excess of equity,if any, over the equity earning ratio of 14% is to be considered as interest bearing debt. In the example which has been given it is shown that if the debt equity ratio is 40:60, return on equity at 14% will be available on 50% equity whereas interest would be available at 10% portion of equity and 40% loan which were reduced by repayments. 21. On the basis of the remand, the Commission has worked out the debt equity ratio as directed by the Appellate Tribunal. It has further provided return on equity at the rate of 14% on the equity portion, namely 50%. In respect of the debt portion, interest has been calculated no doubt after deducting depreciation, the legality of which is the subject matter of the other contention which we will deal with separately. It is quite clear to us that Appellant has already been given return on equity in terms of the tariff Regulation in respect of capital on the basis of debt equity ratio which has been fixed by the Appellate Tribunal on a ratio which has become final between the parties. 22. Though a perusal of para A-9 of order dated 23.11.2007 may appear to show that equity has been found to be the main source of capital, a perusal of paragraph A-10,A-16 and more importantly E-13 would show that capital Under Section 38 of the DVC Act has been understood as the value of the operating assets when they were first put to commercial use. Capital is also understood not as equity alone but it has been understood both as loan and equity. The ratio between loan and equity is also fixed in respect of the old projects at 50:50 and under the new projects it is at 70:30.It is further clear from paragraph E-13 of the order of the Appellate Tribunal dated 23.11.2007 that the appellate Tribunal contemplated that the equity component would remain static and it would earn the rate of return as provided in the tariff Regulation. As far as the loan component is concerned, it would get reduced on account of repayments. Therefore, the recovery as contemplated under the Regulations was found to be in two forms, namely, either as return on equity in respect of the equity portion and as interest on the loan component. 31. In the present case, the clear agreement between the parties was that interest on the sum of `53.90 crores was payable for the specified period 01.07.2003 to 31.12.2009.Therefore, CLPs claim that any amount was payable, for any period prior to 01.07.2003, was not tenable. Had CLP wished so, nothing prevented it to claim for it during negotiations and have it included as a term of the contract. Once having settled for a specified sum, on an amount (`53.90 crores) that was only fictionally a loan - and treated as such, for purpose of fixing interest payable, considering the equity infused, in excess of the tariff regulations, the absence of any like item, such as interest for prior period, precludes a claim. But it was really part of the equity component. Therefore, interest was per se not payable, but could be paid in terms of the tariff notification or the agreement. No claim on any other legal or equitable considerations could have been made. The findings of the lower authorities are therefore, sound and reasonable.
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meant only that unit which depended entirely on naphtha as a fuel, or that which used naphtha at least to the extent of 50%, in our opinion is not correct25. There is no dispute that the PPA which the parties entered into specifically referred to the notification of 30.03.1992 and further went on to state that for the first Kwh/KW, a plant load factor of 68.5% fixed charges and variable charges were deployed. For generation achieved over and above this by the concerned unit – CLP, an incentive @ 5.75% for every 1% increase over and above the fixed and variable charge payable was agreed to. Significantly, the fixed and variable charges are in consonance with the statutory notification of 30.03.1992 (which was also later amended on 17.01.1994). This much is clear from a plain reading of clause 7.1 of the Schedule VII to the PPA itself. In view of the fact that the notification amended on 06.11.1995 was a statutory one, there cannot be any doubt that it was binding upon the parties. Therefore, the earlier notification which left it free to the parties to negotiate on various aspects, including on the incentive payable, stood amended by Note 2, which was added to clause 1.6 of the tariff. The effect of this statutory incorporation by way of amendment was that incentive no longer became payable. The arguments by the CLP, in the opinion of the Court, that the parties were bound only by the terms of the agreement and that the amendment notification being prospective, could not have altered the terms of the tariff, especially the incentive payable, are insubstantial and have no force. The concurrent findings on this aspect, therefore, are sound and do not call for interference. Likewise, the change of law provision (Clause 6.5 of the PPA) clearly contemplated that any amendment to the prevailing tariff notification (dated 30.03.1992) would bind the parties. Since Note (2) was an amendment, which dealt with the issue of incentive, it cannot now be said that it was inapplicable. The findings of the lower authorities, therefore, are correct; no interference is called forThe concurred findings on this aspect, in the opinion of this court, are reasonable. There is merit in CPLs submission that the earliest point in time, when the cause of action arose, was in May,1996, when Gujarat Urja rejected its contention that incentive was payable in terms of the PPA, notwithstanding the notification of 06.11.1995. Despite this stated position, meetings continued to be held and, what is more, incentive amounts, were paid to CLP. No doubt, no document conclusively stated that CLPs claim was accepted. We do not find any merit in the submission of Gujarat Urja that the issue was kept alive, due to a series of communications. In this regard, APTELs findings about inapplicability of Section 18 of the Limitation Act, are correct. There was no admission on the part of CLP, at least of the kind, that extended the time for preferring an application for recovery of excess payments. It has been consistently ruled by this court that repeated letters, or exchange of communications, do not extend the period of limitation, provided by law.27. The third, and last issue, is with respect to payment of interest on deemed equity. Clause 1.5 of the 30.03.1992 notification provided for interest on loan, as a component of tariff; it stipulated that interest (on outstanding loan) shall be computed as per financial package approved by the Authority (CEA). The PPA of 03.02.1994 (Schedule VII) clause 7.5.10 defined interest on loan capital as the sum of all payments of interest along with bank charges and all associated financing costs paid to the bank annually on the outstanding loans paid by GTEC. … The Central Commissions order of 21.02.2000 led to a stipulation in the tariff regulations of 2001. Eventually, the Tariff Regulations of 2004 was brought into force; it provided for a debt ratio of 70:30 for determination of tariff29. It is thus apparent, that the parties did not harbor any doubt about the period for which the specified interest was payable on such deemed loan. The rate of interest was fixed; likewise, the date from which payment obligations were to arise, too were known. Also, the date upto which the interest on such deemed loan payments were to be made, was known and fixed. In these circumstances, CLPs claim that the payment of interest for a prior period was outstanding, and constituted Gujarat Urjas liability, is insubstantial. In a recent judgment (Uttar Haryana Bijli Vitran Nigam Ltd.and Ors. vs. Adani Power Ltd. and Ors. 2019 (5) SCC 325 ) a similar issue had arisen. The court quoted from the decision in National Thermal Power Corporation Ltd. v. Madhya Pradesh State Electricity Board ((2011)15 SCC 580) where another previous decision was cited with approval on the issue that the express provision for something, in an agreement, meant that other similar matters stood excluded31. In the present case, the clear agreement between the parties was that interest on the sum of `53.90 crores was payable for the specified period 01.07.2003 to 31.12.2009.Therefore, CLPs claim that any amount was payable, for any period prior to 01.07.2003, was not tenable. Had CLP wished so, nothing prevented it to claim for it during negotiations and have it included as a term of the contract. Once having settled for a specified sum, on an amount (`53.90 crores) that was only fictionally a loan - and treated as such, for purpose of fixing interest payable, considering the equity infused, in excess of the tariff regulations, the absence of any like item, such as interest for prior period, precludes a claim. But it was really part of the equity component. Therefore, interest was per se not payable, but could be paid in terms of the tariff notification or the agreement. No claim on any other legal or equitable considerations could have been made. The findings of the lower authorities are therefore, sound and reasonable
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Baldev Raj Chadha Vs. Union of India and Others | we will enter the substantive dispute and search for the presence of public interest as the basis of the impugned order. The A.G., Mr. Khanna has, in his affidavit in this court, sworn:12. In this connection I respectfully submit that the Petitioners work was found to be below average and that fact was noted by the appropriate authority in the confidential reports of the petitioner as per details given below:eriod of Adverse Remarks Date ofReport Communication1961-62 Yes. An Average Officer.Though he did try to tacklethe arrears in the GADsection under his charge.I was unhappy to observethat he was trying to shieldthose who shirked work. Ialso noticed that while hewas anxious to bring to mynotice persons who did theirduties w ell, he was willingto play down the lapse ontheir part, if any, withoutadequate justification. 5.12.196214.12.64 A mediocrity who should take more Adverseto interest in the work remarks20.3.65 noted on15.1.6629.7.69 Industry and application. Poorto15.11.70Ability to organise and manage Poor,sections competently. Adverseremarkscommunicatedon May1970.General Assessment: An averageofficer who would do betterif he showed more initiativeand resourcefulness.1.4.70 1.Technical ability: Below averageto 3(a) Ability to organise and manage9.12.70 sections competently. Poor(b) Ability to control subordinatesand get the best outof them. Poor10. General Assessment: Below AdverseAverage. My remarks against remarks1, 3(a)(b) and 10 may be seen. communica-The performance of Shri ted, onChaddha as the officer-in- 29th Sept.charge of the Account Current 1971.sections was not upto themark and consequently he had to be given a change. This officer is definitely below average.13. The aforementioned adverse remarks in the confidential reports of the petitioner were communicated in all the cases to the Petitioner and the Petitioner made representation which was rejected by the competent authority after due consideration. At the time of the review of the retention of the petitioner and other accounts officers, a Committee consisting o f Accountant General, Senior Deputy Accountant General (IC), Senior Deputy Accountant General, (Admn.), Office of the Accountant General, Haryana was constituted to review the cases of the Accounts officers for their retention, on their attaining the age of 50 years. The said Committee was constituted on 23-8-1975. The said Committee after careful assessment of the performance of the employees concerned depicted in their confidential reports found that the persons including the Petitioner who were not able to perform their duty efficiently and effectively in the posts held by them at that time and the Committee therefore recommended to retire the Petitioner among others under F.R 56(j)(i). A copy of the minutes of the meeting held is annexed herewith as Annexure Y.The Reviewing Committee report runs thus:"The Committee after a careful assessment of the performance of the employees concerned as depicted in their confidential reports have come to the conclusion that the persons mentioned below are not able to perform efficiently and effectively the duties of the posts held by them.(1) Shri Baldev Raj Chadda, Accounts Officer."14. A bare glance at the confidential reports of the appellant brings out the striking fact that they relate to 1961-62 to the end of 1970.15. The appellant was promoted only in 1961 and was regularly drawing increment for well over a decade, without let or hindrance. What is far more significant is the further fact that the Reviewing Committee and the A.G. appear to have ignored entries in yearly/half yearly reports in the seventies. The appellant states categorically:"A perusal of the extract from the Confidential reports would show that there were no adverse remarks in the Confidential Reports of the Appellant for the year 1971-72, 1972-73, 1973-74, 1974-75 and 1975-76 till the date of his retirement from service on 27-8-75."16. He further rightly points out that the stand of the A.G. before the High Court was that the impugned order was not grounded on the adverse entries:Since the adverse entries in the Confidential Reports of the petitioner were not, in terms, stated to be the ground for exercising the powers under F.R. 56(j), it was not necessary for the Respondent t o deal with the various allegations levelled by the petitioner against the higher authorities in this regard.17. We must read these materials against the further background set out by the appellant:If I was considered to be unsuitable to continue to officiate as Accounts officer even after 14 years of continuous service without break and after I reached the maximum of the scale both old/revised without being held up or even delayed at E.B. or for increment, then the proper course open to the authorities was to take action against me under C.C.S. (C.C.A.) Rules 1965 to revert me and not to retire me by taking shelter under F.R. 56(j)(i) to avoid initiating disciplinary action. This is thus a clear case of vindictive misuse of powers by the Appointing Authority under F.R. 56(j).18. One wonders how an officer whose continuous service for 14 years crossing the efficiency bar and reaching the maximum salary in the scale an d with no adverse entries at least for five years immediately before the compulsory retirement, could be cashiered on the score that long years ago, his performance had been poor, although his superiors had allowed him to cross the efficiency bar without qualms. A short cut may often be a wrong cut. The order of compulsory retirement fails because vital material, relevant to the decision, has been ignored and obsolete material, less relevant to the decision, has influenced the decision. Any order which materially suffers from the blemish of overlooking or ignoring, wilfully or otherwise, vital facts bearing on the decision is bad in law. Likewise, any action which irrationally digs up obsolete circumstances and obsessively reaches a decision based thereon, cannot be sustained. Legality depends on regard or the totality of material facts viewed in a holistic perspective. For these reasons, the order challenged is obviously bad and we quash it. It i s, however, open to the A.G. to take a fresh decision based on legal material and guided by legal principles. The appellant has, by now, reached the age of superannuation in the normal course. | 1[ds]A break-down of the provision brings out the basic components. The order to retire must be passed only by the appropriate authority. T hat authority must form the requisite opinion-not subjective satisfaction but objective and bona fide and based on relevant material. The requisite opinion is that the retirement of the victim is in public interest-not personal, political or other interest but solely governed by the interest of public service. The right to retire is not absolute, though so worded. Absolute power is anathema under our constitutional order. Absolute merely means wide, not more. Naked and arbitrary exercise of power is bad in law. These essentials once grasped, the appellants submissions become self-evident.The fallacy in the argument lies in the confusionbetween dismissal and compulsory retirement. The two cannot he equated and the constitutional bar cannot be operative. Therefore, we have to find, on an independent enquiry, as to who is the appropriate authority under r. 56(j)(i). Under Note 1 to F.R. 56, the authority entitled to make substantive appointments is the appropriate authority to retire government servants under the said rules. From this Note, which is virtually a part of the rule, the respondents contend that the power of the appropriate authority in respect of Accounts Officers like the appellant has been vested in the A.G . by Notification of the Ministry of Finance dated 29-11-1972. Since the A.G. has been clothed, from that date, with power to appoint substantively Accounts Officers, he has become the appropriate authority for compulsory retirement even though the appellant Accounts Officer had been appointed by the &AG prior to 29-11-1972. In the light of the note which is part of the rule, read with the notification delegating the power to the A.G., we see no flaw in the order impugned.No doubt, ordinarily the appointing authority is also the dismissing authority but the position may be different where retirement alone is ordered. There, the specific provision in the Note to FR 56 must hold good and Art. 311 is not violated either. Nor is there any discrimination, as contended for, because retirement is a category different from the punishments covered by Art.is the retiring authority on a given date? This is answered by the Note which, in substance , says that he who is empowered to appoint the Accounts officer is also the appropriate authority to retire compulsorily, on that date. In this view, we cannot nullify the retirement of the appellant for want ofis an affirmative action, not a negative disposition, a positive conclusion, not a neutral attitude. It is a terminal step to justify which the onus is on the Administration, not a matter where the victim must make out the contrary. Security of tenure is the condition of efficiency of service. The Administration, to be competent, must have servants who are not plagued by uncertainty about tomorrow. At the age of 50 when you have family responsibility and the sombre problems of ones own lifes evening!, your experience, accomplishments and fullness of fitness become an asset to the Administration, if and only if you are not harried or worried by what will happen to me and my family? Where will I go if cashiered? How will I survive when I am too old to be newly employed and too young to be superannuated? These considerations become all the more important in departments where functional independence. fearless scrutiny, and freedom to expose evil or error in high places is the task. And the ombudsmanic tasks of the office or audit vested in the C &AG and the entire army of monitors and minions under him are too strategic for the nations financial health and discipline. that immunity from subtle threats and oblique overawing is very much in public interest. So it is that we must emphatically state that under the guise of public interest if unlimited discretion is regarded acceptable for making an order of premature retirement, it will be the surest menace to public interest and must fail for unreasonableness, arbitrariness and disguised dismissal. To constitutionalise the rule, we must so read it as to free it from the potential for the mischiefs we have just projected. The exercise of power must be bona fide and promote public interest. There is no demonstrable ground to infer mala fides here and the only infirmity alleged which deserves serious notice is as to whether the order has been made in. public interest. When an order is challenged and its validity depends on its being support ed by public interest the State must disclose the material so that the court may be satisfied that the order is not bad for want of any material whatever which, to a reasonable man reasonably instructed in the law, is sufficient to sustain the grounds of public interest justifying forced retirement of the public servant. Judges cannot substitute their judgment for that of the Administrator but they are not absolved from the minimal review well-settled in administrative law and founded on constitutional obligations. The limitations on judicial power in this area are well-known and we are confined to an examination of the material merely to see whether a rational mind may conceivably be satisfied that the compulsory retirement of the officer concerned is necessary in publicwill consider this question to the extent disclosed by the record and in the light of the submissions made by both the parties. The whole purpose of the rule is to weed out the worthless without the punitive extremes covered by Art. 311 of the Constitution. After all, administration, to be efficient, must not be manned by drones, do nothings, incompetents and unworthies. They may not be delinquent who must be punished but may be a burden on the Administration if by insensitive, insufficient, unintelligent or dubious conduct impede the flow or promote stagnation, in a country where speed, sensitivity, probity. and non-irritative public relation s and enthusiastic creativity are urgently needed but paper-logged processes and callous cadres are the besetting sin of the Administration. It is in public interest to retire a never-do-well, but to juggle with confidential reports when a mans career is at stake is a confidence trick contrary to public interest. Moreover, confidential reports are often subjective, impressionistic and must receive sedulous checking as basis for decision- making. The appropriate authority, not the court, makes the decision, but, even. so, a caveat is necessary to avoidare inclined to ignore the case that the appellant was retired because he had declined to proceed on leave forcibly in September 1974. While it is reprehensible for Government or any in the higher echelons to compel a civil servant to go on leave on pain of being suspended, retired or transferred to a far-off place or indifferent post-and the court may readily infer mala fides in t he subsequent order if there is proof of antecedent pressure to take forced leave-we cannot judge the legality of a compulsory retirement on suspicions and apprehensions invariably urged even by deservingI was considered to be unsuitable to continue to officiate as Accounts officer even after 14 years of continuous service without break and after I reached the maximum of the scale both old/revised without being held up or even delayed at E.B. or for increment, then the proper course open to the authorities was to take action against me under C.C.S. (C.C.A.) Rules 1965 to revert me and not to retire me by taking shelter under F.R. 56(j)(i) to avoid initiating disciplinary action. This is thus a clear case of vindictive misuse of powers by the Appointing Authority under F.R.wonders how an officer whose continuous service for 14 years crossing the efficiency bar and reaching the maximum salary in the scale an d with no adverse entries at least for five years immediately before the compulsory retirement, could be cashiered on the score that long years ago, his performance had been poor, although his superiors had allowed him to cross the efficiency bar without qualms. A short cut may often be a wrong cut. The order of compulsory retirement fails because vital material, relevant to the decision, has been ignored and obsolete material, less relevant to the decision, has influenced the decision. Any order which materially suffers from the blemish of overlooking or ignoring, wilfully or otherwise, vital facts bearing on the decision is bad in law. Likewise, any action which irrationally digs up obsolete circumstances and obsessively reaches a decision based thereon, cannot be sustained. Legality depends on regard or the totality of material facts viewed in a holistic perspective. For these reasons, the order challenged is obviously bad and we quash it. It i s, however, open to the A.G. to take a fresh decision based on legal material and guided by legal principles. The appellant has, by now, reached the age of superannuation in the normal course. | 1 | 3,451 | 1,635 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
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we will enter the substantive dispute and search for the presence of public interest as the basis of the impugned order. The A.G., Mr. Khanna has, in his affidavit in this court, sworn:12. In this connection I respectfully submit that the Petitioners work was found to be below average and that fact was noted by the appropriate authority in the confidential reports of the petitioner as per details given below:eriod of Adverse Remarks Date ofReport Communication1961-62 Yes. An Average Officer.Though he did try to tacklethe arrears in the GADsection under his charge.I was unhappy to observethat he was trying to shieldthose who shirked work. Ialso noticed that while hewas anxious to bring to mynotice persons who did theirduties w ell, he was willingto play down the lapse ontheir part, if any, withoutadequate justification. 5.12.196214.12.64 A mediocrity who should take more Adverseto interest in the work remarks20.3.65 noted on15.1.6629.7.69 Industry and application. Poorto15.11.70Ability to organise and manage Poor,sections competently. Adverseremarkscommunicatedon May1970.General Assessment: An averageofficer who would do betterif he showed more initiativeand resourcefulness.1.4.70 1.Technical ability: Below averageto 3(a) Ability to organise and manage9.12.70 sections competently. Poor(b) Ability to control subordinatesand get the best outof them. Poor10. General Assessment: Below AdverseAverage. My remarks against remarks1, 3(a)(b) and 10 may be seen. communica-The performance of Shri ted, onChaddha as the officer-in- 29th Sept.charge of the Account Current 1971.sections was not upto themark and consequently he had to be given a change. This officer is definitely below average.13. The aforementioned adverse remarks in the confidential reports of the petitioner were communicated in all the cases to the Petitioner and the Petitioner made representation which was rejected by the competent authority after due consideration. At the time of the review of the retention of the petitioner and other accounts officers, a Committee consisting o f Accountant General, Senior Deputy Accountant General (IC), Senior Deputy Accountant General, (Admn.), Office of the Accountant General, Haryana was constituted to review the cases of the Accounts officers for their retention, on their attaining the age of 50 years. The said Committee was constituted on 23-8-1975. The said Committee after careful assessment of the performance of the employees concerned depicted in their confidential reports found that the persons including the Petitioner who were not able to perform their duty efficiently and effectively in the posts held by them at that time and the Committee therefore recommended to retire the Petitioner among others under F.R 56(j)(i). A copy of the minutes of the meeting held is annexed herewith as Annexure Y.The Reviewing Committee report runs thus:"The Committee after a careful assessment of the performance of the employees concerned as depicted in their confidential reports have come to the conclusion that the persons mentioned below are not able to perform efficiently and effectively the duties of the posts held by them.(1) Shri Baldev Raj Chadda, Accounts Officer."14. A bare glance at the confidential reports of the appellant brings out the striking fact that they relate to 1961-62 to the end of 1970.15. The appellant was promoted only in 1961 and was regularly drawing increment for well over a decade, without let or hindrance. What is far more significant is the further fact that the Reviewing Committee and the A.G. appear to have ignored entries in yearly/half yearly reports in the seventies. The appellant states categorically:"A perusal of the extract from the Confidential reports would show that there were no adverse remarks in the Confidential Reports of the Appellant for the year 1971-72, 1972-73, 1973-74, 1974-75 and 1975-76 till the date of his retirement from service on 27-8-75."16. He further rightly points out that the stand of the A.G. before the High Court was that the impugned order was not grounded on the adverse entries:Since the adverse entries in the Confidential Reports of the petitioner were not, in terms, stated to be the ground for exercising the powers under F.R. 56(j), it was not necessary for the Respondent t o deal with the various allegations levelled by the petitioner against the higher authorities in this regard.17. We must read these materials against the further background set out by the appellant:If I was considered to be unsuitable to continue to officiate as Accounts officer even after 14 years of continuous service without break and after I reached the maximum of the scale both old/revised without being held up or even delayed at E.B. or for increment, then the proper course open to the authorities was to take action against me under C.C.S. (C.C.A.) Rules 1965 to revert me and not to retire me by taking shelter under F.R. 56(j)(i) to avoid initiating disciplinary action. This is thus a clear case of vindictive misuse of powers by the Appointing Authority under F.R. 56(j).18. One wonders how an officer whose continuous service for 14 years crossing the efficiency bar and reaching the maximum salary in the scale an d with no adverse entries at least for five years immediately before the compulsory retirement, could be cashiered on the score that long years ago, his performance had been poor, although his superiors had allowed him to cross the efficiency bar without qualms. A short cut may often be a wrong cut. The order of compulsory retirement fails because vital material, relevant to the decision, has been ignored and obsolete material, less relevant to the decision, has influenced the decision. Any order which materially suffers from the blemish of overlooking or ignoring, wilfully or otherwise, vital facts bearing on the decision is bad in law. Likewise, any action which irrationally digs up obsolete circumstances and obsessively reaches a decision based thereon, cannot be sustained. Legality depends on regard or the totality of material facts viewed in a holistic perspective. For these reasons, the order challenged is obviously bad and we quash it. It i s, however, open to the A.G. to take a fresh decision based on legal material and guided by legal principles. The appellant has, by now, reached the age of superannuation in the normal course.
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### Explanation:
about tomorrow. At the age of 50 when you have family responsibility and the sombre problems of ones own lifes evening!, your experience, accomplishments and fullness of fitness become an asset to the Administration, if and only if you are not harried or worried by what will happen to me and my family? Where will I go if cashiered? How will I survive when I am too old to be newly employed and too young to be superannuated? These considerations become all the more important in departments where functional independence. fearless scrutiny, and freedom to expose evil or error in high places is the task. And the ombudsmanic tasks of the office or audit vested in the C &AG and the entire army of monitors and minions under him are too strategic for the nations financial health and discipline. that immunity from subtle threats and oblique overawing is very much in public interest. So it is that we must emphatically state that under the guise of public interest if unlimited discretion is regarded acceptable for making an order of premature retirement, it will be the surest menace to public interest and must fail for unreasonableness, arbitrariness and disguised dismissal. To constitutionalise the rule, we must so read it as to free it from the potential for the mischiefs we have just projected. The exercise of power must be bona fide and promote public interest. There is no demonstrable ground to infer mala fides here and the only infirmity alleged which deserves serious notice is as to whether the order has been made in. public interest. When an order is challenged and its validity depends on its being support ed by public interest the State must disclose the material so that the court may be satisfied that the order is not bad for want of any material whatever which, to a reasonable man reasonably instructed in the law, is sufficient to sustain the grounds of public interest justifying forced retirement of the public servant. Judges cannot substitute their judgment for that of the Administrator but they are not absolved from the minimal review well-settled in administrative law and founded on constitutional obligations. The limitations on judicial power in this area are well-known and we are confined to an examination of the material merely to see whether a rational mind may conceivably be satisfied that the compulsory retirement of the officer concerned is necessary in publicwill consider this question to the extent disclosed by the record and in the light of the submissions made by both the parties. The whole purpose of the rule is to weed out the worthless without the punitive extremes covered by Art. 311 of the Constitution. After all, administration, to be efficient, must not be manned by drones, do nothings, incompetents and unworthies. They may not be delinquent who must be punished but may be a burden on the Administration if by insensitive, insufficient, unintelligent or dubious conduct impede the flow or promote stagnation, in a country where speed, sensitivity, probity. and non-irritative public relation s and enthusiastic creativity are urgently needed but paper-logged processes and callous cadres are the besetting sin of the Administration. It is in public interest to retire a never-do-well, but to juggle with confidential reports when a mans career is at stake is a confidence trick contrary to public interest. Moreover, confidential reports are often subjective, impressionistic and must receive sedulous checking as basis for decision- making. The appropriate authority, not the court, makes the decision, but, even. so, a caveat is necessary to avoidare inclined to ignore the case that the appellant was retired because he had declined to proceed on leave forcibly in September 1974. While it is reprehensible for Government or any in the higher echelons to compel a civil servant to go on leave on pain of being suspended, retired or transferred to a far-off place or indifferent post-and the court may readily infer mala fides in t he subsequent order if there is proof of antecedent pressure to take forced leave-we cannot judge the legality of a compulsory retirement on suspicions and apprehensions invariably urged even by deservingI was considered to be unsuitable to continue to officiate as Accounts officer even after 14 years of continuous service without break and after I reached the maximum of the scale both old/revised without being held up or even delayed at E.B. or for increment, then the proper course open to the authorities was to take action against me under C.C.S. (C.C.A.) Rules 1965 to revert me and not to retire me by taking shelter under F.R. 56(j)(i) to avoid initiating disciplinary action. This is thus a clear case of vindictive misuse of powers by the Appointing Authority under F.R.wonders how an officer whose continuous service for 14 years crossing the efficiency bar and reaching the maximum salary in the scale an d with no adverse entries at least for five years immediately before the compulsory retirement, could be cashiered on the score that long years ago, his performance had been poor, although his superiors had allowed him to cross the efficiency bar without qualms. A short cut may often be a wrong cut. The order of compulsory retirement fails because vital material, relevant to the decision, has been ignored and obsolete material, less relevant to the decision, has influenced the decision. Any order which materially suffers from the blemish of overlooking or ignoring, wilfully or otherwise, vital facts bearing on the decision is bad in law. Likewise, any action which irrationally digs up obsolete circumstances and obsessively reaches a decision based thereon, cannot be sustained. Legality depends on regard or the totality of material facts viewed in a holistic perspective. For these reasons, the order challenged is obviously bad and we quash it. It i s, however, open to the A.G. to take a fresh decision based on legal material and guided by legal principles. The appellant has, by now, reached the age of superannuation in the normal course.
|
Priya Vasant Kalgutkar Vs. Murad Shaikh | of determining the compensation, or(b) In case of permanent partial disablement such percentage of compensation which would have been payable in the case of permanent total disablement as specified under item (a) above.Injuries deemed to result in permanent total disablement/permanent partial disablement and percentage of loss or earning capacity shall be as per Schedule I under Workmens Compensation Act, 1923." 8. Thus, under the head of disability in non-fatal accident, the amount of compensation can be determined only on that basis. 9. We may, however, notice that in Lata Wadhwa v. State of Bihar, II (2001) ACC 316 (SC)=V (2001) SLT 826=(2001) 8 SCC 197 , this Court held: "11. So far as the award of compensation in case of children is concerned, Mr. Justice Chandrachud has divided them into two groups, the first group between the age group of 5 to 10 years and the second group between the age group of 10 to 15 years. In case of children between the age group of 5 to 10 years, a uniform sum of Rs. 50,000 has been held to be payable by way of compensation, to which the conventional figure of Rs. 25,000 has been added and as such to the heirs of the 14 children, a consolidated sum of Rs. 75,000 each, has been awarded. So far as the children in the age group of 10 to 15 years, there are 10 such children who died on the fateful day and having found their contribution to the family at Rs .12,000 per annum, 11 multiplier has been applied, particularly, depending upon the age of the father and then the conventional compensation of Rs. 25,000 has been added to each case and consequently, the heirs of each of the deceased above 10 years of age, have been granted compensation to the tune of Rs. 1,57,000 each. In case of the death of an infant, there may have been no actual pecuniary benefit derived by its parents during the childs lifetime. But this will not necessarily bar the parents claim and prospective loss will found a valid claim provided that the parents establish that they had a reasonable expectation of pecuniary benefit if the child had lived. This principle was laid down by the House of Lords in the famous case of Taff Vale Rly. v. Jenkins and Lord Atkinson said thus:‘... all that is necessary is that a reasonable expectation of pecuniary benefit should be entertained by the person who sues. It is quite true that the existence of this expectation is an inference of fact—there must be a basis of fact from which the inference can reasonably be drawn; but I wish to express my emphatic dissent from the proposition that it is necessary that two of the facts without which the inference cannot be drawn are, first, that the deceased earned money in the past, and, second, that he or she contributed to the support of the plaintiff. These are, no doubt, pregnant pieces of evidence, but they are only pieces of evidence; and the necessary inference can, I think, be drawn from circumstances other than and different from them.’At the same time, it must be held that a mere speculative possibility of benefit is not sufficient. Question whether there exists a reasonable expectation of pecuniary advantage is always a mixed question of fact and law. There are several decided cases on this point, providing the guidelines for determination of compensation in such cases but we do not think it necessary for us to advert, as the claimants had not adduced any materials on the reasonable expectation of pecuniary benefits, which the parents expected. In case of a bright and healthy boy, his performances in the school, it would be easier for the authority to arrive at the compensation amount, which may be different from another sickly, unhealthy, rickety child and bad student, but as has been stated earlier, not an iota of material was produced before Shri Justice Chandrachud to enable him to arrive at a just compensation in such cases and, therefore, he has determined the same on an approximation. Mr. Nariman, appearing for TISCO on his own, submitted that the compensation determined for the children of all age groups could be doubled, as in his view also, the determination made is grossly inadequate. Loss of a child to the parents is irrecoupable, and no amount of money could compensate the parents. Having regard to the environment from which these children were brought, their parents being reasonably well placed officials of Tata Iron and Steel Company, and on considering the submission of Mr. Nariman, we would direct that the compensation amount for the children between the age group of 5 to 10 years should be three times. In other words, it should be Rs. 1.5 lakh, to which the conventional figure of Rs. 50,000 should be added and thus the total amount in each case would be Rs. 2.00 lakh. So far as the children between the age group of 10 to 15 years, they are all students of Class VI to Class X and are children of employees of TISCO. TISCO itself has a tradition that every employee can get one of his children employed in the Company. Having regard to these facts, in their case, the contribution of Rs. 12,000 per annum appears to us to be on the lower side and in our considered opinion, the contribution should be Rs. 24,000 and instead of 11 multiplier, the appropriate multiplier would be 15. Therefore, the compensation, so calculated on the aforesaid basis should be worked out to Rs. 3.60 lakh, to which an additional sum of Rs. 50,000 has to be added, thus making the total amount payable at Rs. 4.10 lakh for each of the claimants of the aforesaid deceased children." Even by that standard, the amount of compensation granted by the High Court appears to be adequate in absence of any evidence having brought on record as to the actual damages. | 0[ds]Having regard to these facts, in their case, the contribution of Rs. 12,000 per annum appears to us to be on the lower side and in our considered opinion, the contribution should be Rs. 24,000 and instead of 11 multiplier, the appropriate multiplier would be 15. Therefore, the compensation, so calculated on the aforesaid basis should be worked out to Rs. 3.60 lakh, to which an additional sum of Rs. 50,000 has to be added, thus making the total amount payable at Rs. 4.10 lakh for each of the claimants of the aforesaid deceasedby that standard, the amount of compensation granted by the High Court appears to be adequate in absence of any evidence having brought on record as to the actual damages. | 0 | 1,960 | 143 | ### 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:
of determining the compensation, or(b) In case of permanent partial disablement such percentage of compensation which would have been payable in the case of permanent total disablement as specified under item (a) above.Injuries deemed to result in permanent total disablement/permanent partial disablement and percentage of loss or earning capacity shall be as per Schedule I under Workmens Compensation Act, 1923." 8. Thus, under the head of disability in non-fatal accident, the amount of compensation can be determined only on that basis. 9. We may, however, notice that in Lata Wadhwa v. State of Bihar, II (2001) ACC 316 (SC)=V (2001) SLT 826=(2001) 8 SCC 197 , this Court held: "11. So far as the award of compensation in case of children is concerned, Mr. Justice Chandrachud has divided them into two groups, the first group between the age group of 5 to 10 years and the second group between the age group of 10 to 15 years. In case of children between the age group of 5 to 10 years, a uniform sum of Rs. 50,000 has been held to be payable by way of compensation, to which the conventional figure of Rs. 25,000 has been added and as such to the heirs of the 14 children, a consolidated sum of Rs. 75,000 each, has been awarded. So far as the children in the age group of 10 to 15 years, there are 10 such children who died on the fateful day and having found their contribution to the family at Rs .12,000 per annum, 11 multiplier has been applied, particularly, depending upon the age of the father and then the conventional compensation of Rs. 25,000 has been added to each case and consequently, the heirs of each of the deceased above 10 years of age, have been granted compensation to the tune of Rs. 1,57,000 each. In case of the death of an infant, there may have been no actual pecuniary benefit derived by its parents during the childs lifetime. But this will not necessarily bar the parents claim and prospective loss will found a valid claim provided that the parents establish that they had a reasonable expectation of pecuniary benefit if the child had lived. This principle was laid down by the House of Lords in the famous case of Taff Vale Rly. v. Jenkins and Lord Atkinson said thus:‘... all that is necessary is that a reasonable expectation of pecuniary benefit should be entertained by the person who sues. It is quite true that the existence of this expectation is an inference of fact—there must be a basis of fact from which the inference can reasonably be drawn; but I wish to express my emphatic dissent from the proposition that it is necessary that two of the facts without which the inference cannot be drawn are, first, that the deceased earned money in the past, and, second, that he or she contributed to the support of the plaintiff. These are, no doubt, pregnant pieces of evidence, but they are only pieces of evidence; and the necessary inference can, I think, be drawn from circumstances other than and different from them.’At the same time, it must be held that a mere speculative possibility of benefit is not sufficient. Question whether there exists a reasonable expectation of pecuniary advantage is always a mixed question of fact and law. There are several decided cases on this point, providing the guidelines for determination of compensation in such cases but we do not think it necessary for us to advert, as the claimants had not adduced any materials on the reasonable expectation of pecuniary benefits, which the parents expected. In case of a bright and healthy boy, his performances in the school, it would be easier for the authority to arrive at the compensation amount, which may be different from another sickly, unhealthy, rickety child and bad student, but as has been stated earlier, not an iota of material was produced before Shri Justice Chandrachud to enable him to arrive at a just compensation in such cases and, therefore, he has determined the same on an approximation. Mr. Nariman, appearing for TISCO on his own, submitted that the compensation determined for the children of all age groups could be doubled, as in his view also, the determination made is grossly inadequate. Loss of a child to the parents is irrecoupable, and no amount of money could compensate the parents. Having regard to the environment from which these children were brought, their parents being reasonably well placed officials of Tata Iron and Steel Company, and on considering the submission of Mr. Nariman, we would direct that the compensation amount for the children between the age group of 5 to 10 years should be three times. In other words, it should be Rs. 1.5 lakh, to which the conventional figure of Rs. 50,000 should be added and thus the total amount in each case would be Rs. 2.00 lakh. So far as the children between the age group of 10 to 15 years, they are all students of Class VI to Class X and are children of employees of TISCO. TISCO itself has a tradition that every employee can get one of his children employed in the Company. Having regard to these facts, in their case, the contribution of Rs. 12,000 per annum appears to us to be on the lower side and in our considered opinion, the contribution should be Rs. 24,000 and instead of 11 multiplier, the appropriate multiplier would be 15. Therefore, the compensation, so calculated on the aforesaid basis should be worked out to Rs. 3.60 lakh, to which an additional sum of Rs. 50,000 has to be added, thus making the total amount payable at Rs. 4.10 lakh for each of the claimants of the aforesaid deceased children." Even by that standard, the amount of compensation granted by the High Court appears to be adequate in absence of any evidence having brought on record as to the actual damages.
### Response:
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### Explanation:
Having regard to these facts, in their case, the contribution of Rs. 12,000 per annum appears to us to be on the lower side and in our considered opinion, the contribution should be Rs. 24,000 and instead of 11 multiplier, the appropriate multiplier would be 15. Therefore, the compensation, so calculated on the aforesaid basis should be worked out to Rs. 3.60 lakh, to which an additional sum of Rs. 50,000 has to be added, thus making the total amount payable at Rs. 4.10 lakh for each of the claimants of the aforesaid deceasedby that standard, the amount of compensation granted by the High Court appears to be adequate in absence of any evidence having brought on record as to the actual damages.
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Director General of Income Tax (Admn.) & Another Vs. M/s. GTC Industries Ltd. & Another | is the aforesaid remarks, advantage whereof was taken by the Company when orders dated 5th July, 2011 were passed in Writ Petition No. 4614 of 2011. Though, the petition was withdrawn, the counsel for the Company made the statement that the Company would like to pursue the course suggested by the majority view of the Appellate Authority in its order dated 29th June, 2001 for seeking modification of the Scheme by approaching the Board. No such suggestion or permission at all was given. It is stated at the cost of repetition that the aforesaid observations were made while dealing with the particular argument of the Company. That did not mean that the aforesaid observations gave the Company any liberty to approach the Board even at this juncture. The filing of such application by the Company before the Board seeking modification is, therefore, totally untenable move on the part of the Company. Such an application is not maintainable in law.24. When the matter is considered in this hue, keeping in mind the aforesaid backdrop, the impugned order passed by the High Court in the writ petition that was preferred by the Revenue, is manifestly wrong and unsustainable. For the reasons stated above, we are of the view that the Sanctioned Scheme (SS-02) has outlived its life which came to an end on 31st March, 2011. the Revenue is, thus, entitled to recover its dues. 25. The next question is about the quantum of dues that the Revenue has to recover from the Company. 26. We may mention at this stage that during the course of arguments, learned senior counsel appearing for the Company stated that the Company was ready to settle the dues of the Revenue and for this purpose it was agreeable for the sale of its Ville Parle land under the directions of this Court. It was also agreed that the said sale may be carried out by the monitoring agency, i.e., Canara Bank. The learned senior counsel, however, vehemently questioned the amount claimed by the Revenue in this behalf as it was submitted that the demand of Rs. 761.35 crores on account of income tax dues as made by the Revenue was not correct. On this aspect both the sides made their detailed submissions. 27. By affidavit dated 02.05.2016 filed by Ms. Anita Sinha, Additional Director General (Recovery) C.B.D.T., following dues are claimed: ?a. Principal amount of taxRs. 81.66 crores b. Principal amount of PenaltiesRs. 83.29 crores c. Interest u/s. 220(2) till 30.04.2016Rs. 487.50 crores TotalRs. 652.45 crores? 28. This is the revised figure given on 02.05.2016. As pointed out above, in the special leave petition filed by the Revenue, a demand for sum of Rs. 761.35 crores was made.29. On the other hand, it is the say of the Company that the demands were reduced at an amount of Rs. 52.53 crores by April, 2012 itself. It was submitted that in the reply filed by the Revenue to I.A. 6 of 2014 filed by the Company, the latest position of tax demand and status of appeals was mentioned. The Revenue had stated the outstanding of Rs. 635.96 crores (principal amount of tax and penalty Rs. 164.96 crores + interest upto June, 2015 @ 471.01 crores). Referring to the details in the said chart, as per which the demand was calculated by the Revenue in respect of different Assessment Years, an endeavour was made by the learned senior counsel for the Company to show that even those demands were included where the Company had succeeded and the appeals filed by the Department were pending before the Income Tax Appellate Tribunal. It was, however, clarified by Mr. Maninder Singh, learned ASG appearing for the Revenue that no doubt appeals have been filed by the Revenue which are pending before the ITAT, but the disputed amount has not been included and only that amount which was payable as per the order of CIT (Appeal), is included.30. Another important submission, which needs consideration, advanced by Mr. Sundaram, learned senior counsel appearing for the Company was that in the Scheme which was approved by the Board, Income Tax Department had agreed to waive interest and penalty and, therefore, it was not permissible for the Department to include the interest and penalty. The particular clause in the Scheme as sanctioned by the Board reads as under: "Q. Central Government CBDT/Income Tax ......... (b) to consider waiving interest and penalty, if any imposed and not to levy such interest and penalties during the rehabilitation period." 31. It was argued that the words to consider are to be treated as mandate. It was submitted that the expression to consider in similar Schemes approved by the Board has been interpreted by various Division Benches of High Courts to mean that the relief granted is mandatory and not merely recommendatory. Reference was made to the judgment of Delhi High Court in Union of India v. CIMMCO Ltd. & Ors., bearing W.P.(C) No. 626 of 2014 and that of Madras High Court in Commissioner Income Tax-I, Chennai v. M/s. Tube Investments of India Ltd.-I, Chennai, bearing Tax Case (Appeal) Nos. 519 and 521 of 2005.32. We are not deciding this issue in the present appeal and permit the parties to approach the Board seeking clarification as to what was meant by the words to consider i.e., whether the Board meant that it was mandatory on the part of the Revenue to waive the interest and penalty or it was only recommendatory and, therefore, it was upto to the Department to agree or not to agree to the said request. The jurisdiction of the Board, whenever such application is filed, would be limited to the aforesaid aspect alone and the Board shall decide the issue within the period of two months. Otherwise, we make it clear that as the Scheme has lapsed no further proceedings of any nature are to be entertained by the Board including the application for modification filed by the Company and pending before the Board. | 0[ds]In our considered view, the impugned orders cannot be faulted, which are, predicated on the factual position at that stage of time. If the grievance is, as is now sought to be urged before us; the appropriate remedy for the petitioner is to move the BIFR for lifting of the bar under Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 by articulating before the said forum the factum of alleged violation of the sanctioned scheme.19.What follows from the above is that the High Court was convinced by the reason that the question as to whether the Company had indulged in sale of assets unauthorisedly and in violation of para 9(5)(b) which is yet to be taken by the Board.The High Court also proceeded on a palpably wrong presumption that the sanctioned Scheme was still under operation and, therefore, bar under Section 22 of the SICA applied. For this reason, it directed that the only remedy left for the Revenue was to approach the Board for lifting of the bar under Section 22 of the SICA. From the facts and events noted above, this premise and assumptions are clearly erroneous and contrary to record.20. In the first instance, it is to be seen that the Scheme had already expired on 31.03.2011. Application for extension of the Scheme was filed before the Board which was dismissed. The reason given by the Company seeking extension was that the implementation of the Scheme was delayed because of the coercive tactics which the Revenue had adopted against the Company. This claim was found to be hollow and incorrect. The Appellate Authority had upheld this order of the Board, albeit by a majority of 2:1. Thus, no Scheme was in operation. Another significant aspect which is to be kept in mind is that way back in the year 2007, the net worth of the Company had turned positive and it was no more a sick Company. Thus, the Revenue had right to recover arrears of income tax after 2007 and in any case after 31.03.2011 when the Scheme expired.21. It may be pertinent to mention at this stage that the Company has approached the Board, after withdrawal of its Writ Petition No. 4614 of 2011 on the ground that while withdrawing this petition the High Court had permitted the Company to seek recourse to the Board in view of the observations of the majority opinion of the Appellate Authority. Even this is erroneous.22. The Appellate Authority dismissed the appeal on merits. In the course of discussion on various aspects and arguments that were raised before the Appellate Authority, the Appellate Authority noted that the Company had taken steps to close a unit which was rehabilitated under the Sanctioned Scheme and to sell the property thereof without obtaining the prior approval of the Board. It further observed that when those steps were taken, jurisdiction of the Board over the Company continued under Section 18(9) and Section 18(12) of SICA. In the opinion of the Appellate Authority, since the Company had availed itself of and was continuously availing the beneficial measures ofwhich included rehabilitation measures for the Mumbai unit, it was obligatory on the part of the Company to seek and obtain the prior permission of the Board to close the Mumbai unit, shift its plant and machinery to the Vadodara and engage in reality business. Thus, while rejecting the argument of the Company that there was no violation of the Scheme in dismantling the Ville Parle Unit and selling its land and building, the Appellate Authority took the view that it had altered the essential ingredients of theas a result of which that Scheme stood mutilated and, therefore, seeking extension of such Scheme was untenable. While discussing this aspect, the Appellate Authority, repelling the argument, also remarked as under:"12. The only option available to the company was to seek modification of the scheme under Section 18(5) of SICA which had to be considered through appropriate procedure prescribed under SICA for seeking fresh commitments from the concerned parties, as required."By these remarks the Appellate Authority only pointed out the breach committed by the company in not taking prior permission and nowhere permitted the company to resort to the same even now as that opportunity was already lost.23. It is the aforesaid remarks, advantage whereof was taken by the Company when orders dated 5th July, 2011 were passed in Writ Petition No. 4614 of 2011. Though, the petition was withdrawn, the counsel for the Company made the statement that the Company would like to pursue the course suggested by the majority view of the Appellate Authority in its order dated 29th June, 2001 for seeking modification of the Scheme by approaching the Board. No such suggestion or permission at all was given. It is stated at the cost of repetition that the aforesaid observations were made while dealing with the particular argument of the Company. That did not mean that the aforesaid observations gave the Company any liberty to approach the Board even at this juncture. The filing of such application by the Company before the Board seeking modification is, therefore, totally untenable move on the part of the Company. Such an application is not maintainable in law.24. When the matter is considered in this hue, keeping in mind the aforesaid backdrop, the impugned order passed by the High Court in the writ petition that was preferred by the Revenue, is manifestly wrong and unsustainable. For the reasons stated above, we are of the view that the Sanctioned Schemehas outlived its life which came to an end on 31st March, 2011. the Revenue is, thus, entitled to recover its dues.We may mention at this stage that during the course of arguments, learned senior counsel appearing for the Company stated that the Company was ready to settle the dues of the Revenue and for this purpose it was agreeable for the sale of its Ville Parle land under the directions of this Court. It was also agreed that the said sale may be carried out by the monitoring agency, i.e., Canara Bank. The learned senior counsel, however, vehemently questioned the amount claimed by the Revenue in this behalf as it was submitted that the demand of Rs. 761.35 crores on account of income tax dues as made by the Revenue was not correct. On this aspect both the sides made their detailedThis is the revised figure given on 02.05.2016. As pointed out above, in the special leave petition filed by the Revenue, a demand for sum of Rs. 761.35 crores was made.29. On the other hand, it is the say of the Company that the demands were reduced at an amount of Rs. 52.53 crores by April, 2012 itself. It was submitted that in the reply filed by the Revenue to I.A. 6 of 2014 filed by the Company, the latest position of tax demand and status of appeals was mentioned. The Revenue had stated the outstanding of Rs. 635.96 crores (principal amount of tax and penalty Rs. 164.96 crores + interest upto June, 2015 @ 471.01 crores). Referring to the details in the said chart, as per which the demand was calculated by the Revenue in respect of different Assessment Years, an endeavour was made by the learned senior counsel for the Company to show that even those demands were included where the Company had succeeded and the appeals filed by the Department were pending before the Income Tax Appellate Tribunal. It was, however, clarified by Mr. Maninder Singh, learned ASG appearing for the Revenue that no doubt appeals have been filed by the Revenue which are pending before the ITAT, but the disputed amount has not been included and only that amount which was payable as per the order of CIT (Appeal), is included.30. Another important submission, which needs consideration, advanced by Mr. Sundaram, learned senior counsel appearing for the Company was that in the Scheme which was approved by the Board, Income Tax Department had agreed to waive interest and penalty and, therefore, it was not permissible for the Department to include the interest and penalty.It was argued that the words to consider are to be treated as mandate. It was submitted that the expression to consider in similar Schemes approved by the Board has been interpreted by various Division Benches of High Courts to mean that the relief granted is mandatory and not merely recommendatory. Reference was made to the judgment of Delhi High Court in Union of India v. CIMMCO Ltd.Ors., bearing W.P.(C) No. 626 of 2014 and that of Madras High Court in Commissioner IncomeChennai v. M/s. Tube Investments of IndiaChennai, bearing Tax Case (Appeal) Nos. 519 and 521 of 2005.32. We are not deciding this issue in the present appeal and permit the parties to approach the Board seeking clarification as to what was meant by the words to consider i.e., whether the Board meant that it was mandatory on the part of the Revenue to waive the interest and penalty or it was only recommendatory and, therefore, it was upto to the Department to agree or not to agree to the said request. The jurisdiction of the Board, whenever such application is filed, would be limited to the aforesaid aspect alone and the Board shall decide the issue within the period of two months. Otherwise, we make it clear that as the Scheme has lapsed no further proceedings of any nature are to be entertained by the Board including the application for modification filed by the Company and pending before the Board.33. The Income Tax Department shall be entitled to take steps for attachment of the properties of the Company, including Ville Parle land as per the provisions of the Income Tax Act and shall be entitled to sell the same. If there are any secured creditors in respect of these properties, such attachment and sale shall be subject to the rights of those creditors. Out of the proceeds, the Principal amount of tax due to the Income Tax Department and even the admitted excise dues shall be paid to the Revenue. Insofar as payment of interest and penalty is concerned, that would be dependent upon the decision which the Board would give. | 0 | 5,443 | 1,881 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
is the aforesaid remarks, advantage whereof was taken by the Company when orders dated 5th July, 2011 were passed in Writ Petition No. 4614 of 2011. Though, the petition was withdrawn, the counsel for the Company made the statement that the Company would like to pursue the course suggested by the majority view of the Appellate Authority in its order dated 29th June, 2001 for seeking modification of the Scheme by approaching the Board. No such suggestion or permission at all was given. It is stated at the cost of repetition that the aforesaid observations were made while dealing with the particular argument of the Company. That did not mean that the aforesaid observations gave the Company any liberty to approach the Board even at this juncture. The filing of such application by the Company before the Board seeking modification is, therefore, totally untenable move on the part of the Company. Such an application is not maintainable in law.24. When the matter is considered in this hue, keeping in mind the aforesaid backdrop, the impugned order passed by the High Court in the writ petition that was preferred by the Revenue, is manifestly wrong and unsustainable. For the reasons stated above, we are of the view that the Sanctioned Scheme (SS-02) has outlived its life which came to an end on 31st March, 2011. the Revenue is, thus, entitled to recover its dues. 25. The next question is about the quantum of dues that the Revenue has to recover from the Company. 26. We may mention at this stage that during the course of arguments, learned senior counsel appearing for the Company stated that the Company was ready to settle the dues of the Revenue and for this purpose it was agreeable for the sale of its Ville Parle land under the directions of this Court. It was also agreed that the said sale may be carried out by the monitoring agency, i.e., Canara Bank. The learned senior counsel, however, vehemently questioned the amount claimed by the Revenue in this behalf as it was submitted that the demand of Rs. 761.35 crores on account of income tax dues as made by the Revenue was not correct. On this aspect both the sides made their detailed submissions. 27. By affidavit dated 02.05.2016 filed by Ms. Anita Sinha, Additional Director General (Recovery) C.B.D.T., following dues are claimed: ?a. Principal amount of taxRs. 81.66 crores b. Principal amount of PenaltiesRs. 83.29 crores c. Interest u/s. 220(2) till 30.04.2016Rs. 487.50 crores TotalRs. 652.45 crores? 28. This is the revised figure given on 02.05.2016. As pointed out above, in the special leave petition filed by the Revenue, a demand for sum of Rs. 761.35 crores was made.29. On the other hand, it is the say of the Company that the demands were reduced at an amount of Rs. 52.53 crores by April, 2012 itself. It was submitted that in the reply filed by the Revenue to I.A. 6 of 2014 filed by the Company, the latest position of tax demand and status of appeals was mentioned. The Revenue had stated the outstanding of Rs. 635.96 crores (principal amount of tax and penalty Rs. 164.96 crores + interest upto June, 2015 @ 471.01 crores). Referring to the details in the said chart, as per which the demand was calculated by the Revenue in respect of different Assessment Years, an endeavour was made by the learned senior counsel for the Company to show that even those demands were included where the Company had succeeded and the appeals filed by the Department were pending before the Income Tax Appellate Tribunal. It was, however, clarified by Mr. Maninder Singh, learned ASG appearing for the Revenue that no doubt appeals have been filed by the Revenue which are pending before the ITAT, but the disputed amount has not been included and only that amount which was payable as per the order of CIT (Appeal), is included.30. Another important submission, which needs consideration, advanced by Mr. Sundaram, learned senior counsel appearing for the Company was that in the Scheme which was approved by the Board, Income Tax Department had agreed to waive interest and penalty and, therefore, it was not permissible for the Department to include the interest and penalty. The particular clause in the Scheme as sanctioned by the Board reads as under: "Q. Central Government CBDT/Income Tax ......... (b) to consider waiving interest and penalty, if any imposed and not to levy such interest and penalties during the rehabilitation period." 31. It was argued that the words to consider are to be treated as mandate. It was submitted that the expression to consider in similar Schemes approved by the Board has been interpreted by various Division Benches of High Courts to mean that the relief granted is mandatory and not merely recommendatory. Reference was made to the judgment of Delhi High Court in Union of India v. CIMMCO Ltd. & Ors., bearing W.P.(C) No. 626 of 2014 and that of Madras High Court in Commissioner Income Tax-I, Chennai v. M/s. Tube Investments of India Ltd.-I, Chennai, bearing Tax Case (Appeal) Nos. 519 and 521 of 2005.32. We are not deciding this issue in the present appeal and permit the parties to approach the Board seeking clarification as to what was meant by the words to consider i.e., whether the Board meant that it was mandatory on the part of the Revenue to waive the interest and penalty or it was only recommendatory and, therefore, it was upto to the Department to agree or not to agree to the said request. The jurisdiction of the Board, whenever such application is filed, would be limited to the aforesaid aspect alone and the Board shall decide the issue within the period of two months. Otherwise, we make it clear that as the Scheme has lapsed no further proceedings of any nature are to be entertained by the Board including the application for modification filed by the Company and pending before the Board.
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even now as that opportunity was already lost.23. It is the aforesaid remarks, advantage whereof was taken by the Company when orders dated 5th July, 2011 were passed in Writ Petition No. 4614 of 2011. Though, the petition was withdrawn, the counsel for the Company made the statement that the Company would like to pursue the course suggested by the majority view of the Appellate Authority in its order dated 29th June, 2001 for seeking modification of the Scheme by approaching the Board. No such suggestion or permission at all was given. It is stated at the cost of repetition that the aforesaid observations were made while dealing with the particular argument of the Company. That did not mean that the aforesaid observations gave the Company any liberty to approach the Board even at this juncture. The filing of such application by the Company before the Board seeking modification is, therefore, totally untenable move on the part of the Company. Such an application is not maintainable in law.24. When the matter is considered in this hue, keeping in mind the aforesaid backdrop, the impugned order passed by the High Court in the writ petition that was preferred by the Revenue, is manifestly wrong and unsustainable. For the reasons stated above, we are of the view that the Sanctioned Schemehas outlived its life which came to an end on 31st March, 2011. the Revenue is, thus, entitled to recover its dues.We may mention at this stage that during the course of arguments, learned senior counsel appearing for the Company stated that the Company was ready to settle the dues of the Revenue and for this purpose it was agreeable for the sale of its Ville Parle land under the directions of this Court. It was also agreed that the said sale may be carried out by the monitoring agency, i.e., Canara Bank. The learned senior counsel, however, vehemently questioned the amount claimed by the Revenue in this behalf as it was submitted that the demand of Rs. 761.35 crores on account of income tax dues as made by the Revenue was not correct. On this aspect both the sides made their detailedThis is the revised figure given on 02.05.2016. As pointed out above, in the special leave petition filed by the Revenue, a demand for sum of Rs. 761.35 crores was made.29. On the other hand, it is the say of the Company that the demands were reduced at an amount of Rs. 52.53 crores by April, 2012 itself. It was submitted that in the reply filed by the Revenue to I.A. 6 of 2014 filed by the Company, the latest position of tax demand and status of appeals was mentioned. The Revenue had stated the outstanding of Rs. 635.96 crores (principal amount of tax and penalty Rs. 164.96 crores + interest upto June, 2015 @ 471.01 crores). Referring to the details in the said chart, as per which the demand was calculated by the Revenue in respect of different Assessment Years, an endeavour was made by the learned senior counsel for the Company to show that even those demands were included where the Company had succeeded and the appeals filed by the Department were pending before the Income Tax Appellate Tribunal. It was, however, clarified by Mr. Maninder Singh, learned ASG appearing for the Revenue that no doubt appeals have been filed by the Revenue which are pending before the ITAT, but the disputed amount has not been included and only that amount which was payable as per the order of CIT (Appeal), is included.30. Another important submission, which needs consideration, advanced by Mr. Sundaram, learned senior counsel appearing for the Company was that in the Scheme which was approved by the Board, Income Tax Department had agreed to waive interest and penalty and, therefore, it was not permissible for the Department to include the interest and penalty.It was argued that the words to consider are to be treated as mandate. It was submitted that the expression to consider in similar Schemes approved by the Board has been interpreted by various Division Benches of High Courts to mean that the relief granted is mandatory and not merely recommendatory. Reference was made to the judgment of Delhi High Court in Union of India v. CIMMCO Ltd.Ors., bearing W.P.(C) No. 626 of 2014 and that of Madras High Court in Commissioner IncomeChennai v. M/s. Tube Investments of IndiaChennai, bearing Tax Case (Appeal) Nos. 519 and 521 of 2005.32. We are not deciding this issue in the present appeal and permit the parties to approach the Board seeking clarification as to what was meant by the words to consider i.e., whether the Board meant that it was mandatory on the part of the Revenue to waive the interest and penalty or it was only recommendatory and, therefore, it was upto to the Department to agree or not to agree to the said request. The jurisdiction of the Board, whenever such application is filed, would be limited to the aforesaid aspect alone and the Board shall decide the issue within the period of two months. Otherwise, we make it clear that as the Scheme has lapsed no further proceedings of any nature are to be entertained by the Board including the application for modification filed by the Company and pending before the Board.33. The Income Tax Department shall be entitled to take steps for attachment of the properties of the Company, including Ville Parle land as per the provisions of the Income Tax Act and shall be entitled to sell the same. If there are any secured creditors in respect of these properties, such attachment and sale shall be subject to the rights of those creditors. Out of the proceeds, the Principal amount of tax due to the Income Tax Department and even the admitted excise dues shall be paid to the Revenue. Insofar as payment of interest and penalty is concerned, that would be dependent upon the decision which the Board would give.
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Malaya Nanda Sethy Vs. State of Orissa and others | Santosh (supra), a three Judge Bench of this Court, after taking into consideration the entire case law, has held that the claim should be considered as per the amended Rules that were prevalent at the time of consideration of the application and not the Rules that were prevalent at the time of death of the government servant. 4.1 Learned counsel appearing on behalf of the respondents has further submitted that even in the amended rules 2020, it is specifically provided that the amended 2020 Rules shall be applicable with respect to all pending applications. It is submitted that in that view of the matter, the claim of the appellant for appointment on compassionate grounds is required to be considered as per the amended 2020 Rules and not as per the earlier 1990 Rules. 4.2 Learned counsel appearing on behalf of the appellant has pointed out that in the case of Bheemesh alia Bheemappa (supra), which is a recent decision, this Court had an occasion to consider the decision in the case of N.C. Santosh (supra). 5. We have heard the learned counsel for the respective parties at length. We have noted that there is a conflict of view, as to whether the scheme/rules in force on the date of death of the government servant would apply or the scheme/rules in force on the date of consideration of the application on compassionate grounds would apply. There are divergent views and the conflict of opinion in different decisions of this Court. However, keeping the said question aside, for the reasons stated hereinbelow, we are of the opinion that in the peculiar facts and circumstances of the case, the appellant herein shall be entitled for appointment on compassionate ground as per the 1990 rules, which were applicable at the time when the deceased employee died and the appellant herein made an application for appointment on the death of his father, i.e., in the year 2010. 6. From the chronology of dates and events, mentioned hereinabove, it is not in dispute that the deceased employee died on 2.1.2010 while in service. Immediately, in July 2010, the appellant applied for appointment on compassionate ground as a Junior Clerk under the 1990 Rules. It was the specific case of the appellant that his mother was unable to take a government job due to her medical condition and therefore he, being a son applied for appointment on compassionate ground under the 1990 Rules. At this stage, it is required to be noted that under the 1990 Rules, there was no provision that when the wife of the deceased is alive, the son cannot make an application for appointment on compassionate grounds. As per Rule 2(b) of the 1990 Rules, Family Members shall mean and include the members in order of preference, which include, (i) wife/husband (ii) sons……. Therefore, when the mother was unable to undertake a government job due to her medical condition, the appellant, being the son was entitled to apply for appointment on the death of his father. That the application of the appellant, though was forwarded in the year 2011, was kept pending consideration initially for a period of five years. The same was attended to after a period of five years by the Additional Secretary. The Additional Secretary vide communication dated 9.9.2016 asked the Collector, Ganjam to furnish a fresh report regarding the financial condition of the family of the deceased government servant. Simultaneously, a report was also called for from the CDMO, Ganjam to refer the mother of the appellant before the Medical Board for proper examination to ascertain whether her inability to perform a government job continues. The Medical Board examined the mother of the appellant and furnished a report on 01.11.2016 stating that she was unfit for a government job. The CDMO, Cuttack also furnished another report dated 6.2.2017 to the same effect. The matter does not end there. A report from Tehsildar, Bellaguntha which was the native place of the appellant was also called for to ascertain the financial condition of the family of the deceased. The Tehsildar, Bellaguntha submitted its report vide communication dated 28.10.2017 stating that the family income of the appellant from all sources does not exceed ceiling of Rs.72,000/- per annum. Despite the above and though the appellant fulfilled all the eligibility criteria and/or conditions for appointment on compassionate grounds, he was not appointed as a Junior Clerk as per 1990 Rules. However, in the meantime, 1990 Rules came to be replaced and the 2020 Rules came into force. 7. Thus, from the aforesaid, it can be seen that there was no fault and/or delay and/or negligence on the part of the appellant at all. He was fulfilling all the conditions for appointment on compassionate grounds under the 1990 Rules. For no reason, his application was kept pending and/or no order was passed on one ground or the other. Therefore, when there was no fault and/or delay on the part of the appellant and all throughout there was a delay on the part of the department/authorities, the appellant should not be made to suffer. Not appointing the appellant under the 1990 Rules would be giving a premium to the delay and/or inaction on the part of the department/authorities. There was an absolute callousness on the part of the department/authorities. The facts are conspicuous and manifest the grave delay in entertaining the application submitted by the appellant in seeking employment which is indisputably attributable to the department/authorities. In fact, the appellant has been deprived of seeking compassionate appointment, which he was otherwise entitled to under the 1990 Rules. The appellant has become a victim of the delay and/or inaction on the part of the department/authorities which may be deliberate or for reasons best known to the authorities concerned. Therefore, in the peculiar facts and circumstances of the case, keeping the larger question open and aside, as observed hereinabove, we are of the opinion that the appellant herein shall not be denied appointment under the 1990 Rules. | 1[ds]We have noted that there is a conflict of view, as to whether the scheme/rules in force on the date of death of the government servant would apply or the scheme/rules in force on the date of consideration of the application on compassionate grounds would apply. There are divergent views and the conflict of opinion in different decisions of this Court. However, keeping the said question aside, for the reasons stated hereinbelow, we are of the opinion that in the peculiar facts and circumstances of the case, the appellant herein shall be entitled for appointment on compassionate ground as per the 1990 rules, which were applicable at the time when the deceased employee died and the appellant herein made an application for appointment on the death of his father, i.e., in the year 2010.6. From the chronology of dates and events, mentioned hereinabove, it is not in dispute that the deceased employee died on 2.1.2010 while in service. Immediately, in July 2010, the appellant applied for appointment on compassionate ground as a Junior Clerk under the 1990 Rules. It was the specific case of the appellant that his mother was unable to take a government job due to her medical condition and therefore he, being a son applied for appointment on compassionate ground under the 1990 Rules. At this stage, it is required to be noted that under the 1990 Rules, there was no provision that when the wife of the deceased is alive, the son cannot make an application for appointment on compassionate grounds. As per Rule 2(b) of the 1990 Rules, Family Members shall mean and include the members in order of preference, which include, (i) wife/husband (ii) sons……. Therefore, when the mother was unable to undertake a government job due to her medical condition, the appellant, being the son was entitled to apply for appointment on the death of his father. That the application of the appellant, though was forwarded in the year 2011, was kept pending consideration initially for a period of five years. The same was attended to after a period of five years by the Additional Secretary. The Additional Secretary vide communication dated 9.9.2016 asked the Collector, Ganjam to furnish a fresh report regarding the financial condition of the family of the deceased government servant. Simultaneously, a report was also called for from the CDMO, Ganjam to refer the mother of the appellant before the Medical Board for proper examination to ascertain whether her inability to perform a government job continues. The Medical Board examined the mother of the appellant and furnished a report on 01.11.2016 stating that she was unfit for a government job. The CDMO, Cuttack also furnished another report dated 6.2.2017 to the same effect. The matter does not end there. A report from Tehsildar, Bellaguntha which was the native place of the appellant was also called for to ascertain the financial condition of the family of the deceased. The Tehsildar, Bellaguntha submitted its report vide communication dated 28.10.2017 stating that the family income of the appellant from all sources does not exceed ceiling of Rs.72,000/- per annum. Despite the above and though the appellant fulfilled all the eligibility criteria and/or conditions for appointment on compassionate grounds, he was not appointed as a Junior Clerk as per 1990 Rules. However, in the meantime, 1990 Rules came to be replaced and the 2020 Rules came into force.7. Thus, from the aforesaid, it can be seen that there was no fault and/or delay and/or negligence on the part of the appellant at all. He was fulfilling all the conditions for appointment on compassionate grounds under the 1990 Rules. For no reason, his application was kept pending and/or no order was passed on one ground or the other. Therefore, when there was no fault and/or delay on the part of the appellant and all throughout there was a delay on the part of the department/authorities, the appellant should not be made to suffer. Not appointing the appellant under the 1990 Rules would be giving a premium to the delay and/or inaction on the part of the department/authorities. There was an absolute callousness on the part of the department/authorities. The facts are conspicuous and manifest the grave delay in entertaining the application submitted by the appellant in seeking employment which is indisputably attributable to the department/authorities. In fact, the appellant has been deprived of seeking compassionate appointment, which he was otherwise entitled to under the 1990 Rules. The appellant has become a victim of the delay and/or inaction on the part of the department/authorities which may be deliberate or for reasons best known to the authorities concerned. Therefore, in the peculiar facts and circumstances of the case, keeping the larger question open and aside, as observed hereinabove, we are of the opinion that the appellant herein shall not be denied appointment under the 1990 Rules. | 1 | 2,245 | 896 | ### 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:
Santosh (supra), a three Judge Bench of this Court, after taking into consideration the entire case law, has held that the claim should be considered as per the amended Rules that were prevalent at the time of consideration of the application and not the Rules that were prevalent at the time of death of the government servant. 4.1 Learned counsel appearing on behalf of the respondents has further submitted that even in the amended rules 2020, it is specifically provided that the amended 2020 Rules shall be applicable with respect to all pending applications. It is submitted that in that view of the matter, the claim of the appellant for appointment on compassionate grounds is required to be considered as per the amended 2020 Rules and not as per the earlier 1990 Rules. 4.2 Learned counsel appearing on behalf of the appellant has pointed out that in the case of Bheemesh alia Bheemappa (supra), which is a recent decision, this Court had an occasion to consider the decision in the case of N.C. Santosh (supra). 5. We have heard the learned counsel for the respective parties at length. We have noted that there is a conflict of view, as to whether the scheme/rules in force on the date of death of the government servant would apply or the scheme/rules in force on the date of consideration of the application on compassionate grounds would apply. There are divergent views and the conflict of opinion in different decisions of this Court. However, keeping the said question aside, for the reasons stated hereinbelow, we are of the opinion that in the peculiar facts and circumstances of the case, the appellant herein shall be entitled for appointment on compassionate ground as per the 1990 rules, which were applicable at the time when the deceased employee died and the appellant herein made an application for appointment on the death of his father, i.e., in the year 2010. 6. From the chronology of dates and events, mentioned hereinabove, it is not in dispute that the deceased employee died on 2.1.2010 while in service. Immediately, in July 2010, the appellant applied for appointment on compassionate ground as a Junior Clerk under the 1990 Rules. It was the specific case of the appellant that his mother was unable to take a government job due to her medical condition and therefore he, being a son applied for appointment on compassionate ground under the 1990 Rules. At this stage, it is required to be noted that under the 1990 Rules, there was no provision that when the wife of the deceased is alive, the son cannot make an application for appointment on compassionate grounds. As per Rule 2(b) of the 1990 Rules, Family Members shall mean and include the members in order of preference, which include, (i) wife/husband (ii) sons……. Therefore, when the mother was unable to undertake a government job due to her medical condition, the appellant, being the son was entitled to apply for appointment on the death of his father. That the application of the appellant, though was forwarded in the year 2011, was kept pending consideration initially for a period of five years. The same was attended to after a period of five years by the Additional Secretary. The Additional Secretary vide communication dated 9.9.2016 asked the Collector, Ganjam to furnish a fresh report regarding the financial condition of the family of the deceased government servant. Simultaneously, a report was also called for from the CDMO, Ganjam to refer the mother of the appellant before the Medical Board for proper examination to ascertain whether her inability to perform a government job continues. The Medical Board examined the mother of the appellant and furnished a report on 01.11.2016 stating that she was unfit for a government job. The CDMO, Cuttack also furnished another report dated 6.2.2017 to the same effect. The matter does not end there. A report from Tehsildar, Bellaguntha which was the native place of the appellant was also called for to ascertain the financial condition of the family of the deceased. The Tehsildar, Bellaguntha submitted its report vide communication dated 28.10.2017 stating that the family income of the appellant from all sources does not exceed ceiling of Rs.72,000/- per annum. Despite the above and though the appellant fulfilled all the eligibility criteria and/or conditions for appointment on compassionate grounds, he was not appointed as a Junior Clerk as per 1990 Rules. However, in the meantime, 1990 Rules came to be replaced and the 2020 Rules came into force. 7. Thus, from the aforesaid, it can be seen that there was no fault and/or delay and/or negligence on the part of the appellant at all. He was fulfilling all the conditions for appointment on compassionate grounds under the 1990 Rules. For no reason, his application was kept pending and/or no order was passed on one ground or the other. Therefore, when there was no fault and/or delay on the part of the appellant and all throughout there was a delay on the part of the department/authorities, the appellant should not be made to suffer. Not appointing the appellant under the 1990 Rules would be giving a premium to the delay and/or inaction on the part of the department/authorities. There was an absolute callousness on the part of the department/authorities. The facts are conspicuous and manifest the grave delay in entertaining the application submitted by the appellant in seeking employment which is indisputably attributable to the department/authorities. In fact, the appellant has been deprived of seeking compassionate appointment, which he was otherwise entitled to under the 1990 Rules. The appellant has become a victim of the delay and/or inaction on the part of the department/authorities which may be deliberate or for reasons best known to the authorities concerned. Therefore, in the peculiar facts and circumstances of the case, keeping the larger question open and aside, as observed hereinabove, we are of the opinion that the appellant herein shall not be denied appointment under the 1990 Rules.
### Response:
1
### Explanation:
We have noted that there is a conflict of view, as to whether the scheme/rules in force on the date of death of the government servant would apply or the scheme/rules in force on the date of consideration of the application on compassionate grounds would apply. There are divergent views and the conflict of opinion in different decisions of this Court. However, keeping the said question aside, for the reasons stated hereinbelow, we are of the opinion that in the peculiar facts and circumstances of the case, the appellant herein shall be entitled for appointment on compassionate ground as per the 1990 rules, which were applicable at the time when the deceased employee died and the appellant herein made an application for appointment on the death of his father, i.e., in the year 2010.6. From the chronology of dates and events, mentioned hereinabove, it is not in dispute that the deceased employee died on 2.1.2010 while in service. Immediately, in July 2010, the appellant applied for appointment on compassionate ground as a Junior Clerk under the 1990 Rules. It was the specific case of the appellant that his mother was unable to take a government job due to her medical condition and therefore he, being a son applied for appointment on compassionate ground under the 1990 Rules. At this stage, it is required to be noted that under the 1990 Rules, there was no provision that when the wife of the deceased is alive, the son cannot make an application for appointment on compassionate grounds. As per Rule 2(b) of the 1990 Rules, Family Members shall mean and include the members in order of preference, which include, (i) wife/husband (ii) sons……. Therefore, when the mother was unable to undertake a government job due to her medical condition, the appellant, being the son was entitled to apply for appointment on the death of his father. That the application of the appellant, though was forwarded in the year 2011, was kept pending consideration initially for a period of five years. The same was attended to after a period of five years by the Additional Secretary. The Additional Secretary vide communication dated 9.9.2016 asked the Collector, Ganjam to furnish a fresh report regarding the financial condition of the family of the deceased government servant. Simultaneously, a report was also called for from the CDMO, Ganjam to refer the mother of the appellant before the Medical Board for proper examination to ascertain whether her inability to perform a government job continues. The Medical Board examined the mother of the appellant and furnished a report on 01.11.2016 stating that she was unfit for a government job. The CDMO, Cuttack also furnished another report dated 6.2.2017 to the same effect. The matter does not end there. A report from Tehsildar, Bellaguntha which was the native place of the appellant was also called for to ascertain the financial condition of the family of the deceased. The Tehsildar, Bellaguntha submitted its report vide communication dated 28.10.2017 stating that the family income of the appellant from all sources does not exceed ceiling of Rs.72,000/- per annum. Despite the above and though the appellant fulfilled all the eligibility criteria and/or conditions for appointment on compassionate grounds, he was not appointed as a Junior Clerk as per 1990 Rules. However, in the meantime, 1990 Rules came to be replaced and the 2020 Rules came into force.7. Thus, from the aforesaid, it can be seen that there was no fault and/or delay and/or negligence on the part of the appellant at all. He was fulfilling all the conditions for appointment on compassionate grounds under the 1990 Rules. For no reason, his application was kept pending and/or no order was passed on one ground or the other. Therefore, when there was no fault and/or delay on the part of the appellant and all throughout there was a delay on the part of the department/authorities, the appellant should not be made to suffer. Not appointing the appellant under the 1990 Rules would be giving a premium to the delay and/or inaction on the part of the department/authorities. There was an absolute callousness on the part of the department/authorities. The facts are conspicuous and manifest the grave delay in entertaining the application submitted by the appellant in seeking employment which is indisputably attributable to the department/authorities. In fact, the appellant has been deprived of seeking compassionate appointment, which he was otherwise entitled to under the 1990 Rules. The appellant has become a victim of the delay and/or inaction on the part of the department/authorities which may be deliberate or for reasons best known to the authorities concerned. Therefore, in the peculiar facts and circumstances of the case, keeping the larger question open and aside, as observed hereinabove, we are of the opinion that the appellant herein shall not be denied appointment under the 1990 Rules.
|
C.Muniyappa Naidu Etc Vs. State Of Karnataka And Ors | nothing in t he Act which debarred absorption of the appellants as permanent employees of the Corporation under the Corporation Resolution dated 30th December, 1974 read with the Government Order dated 6th May, 1975.But the argument of the State Government and the Corporation was, and this argument found favour with the Division Bench of the High Court, that until the Cadre and Recruitment Regulations were amended, it was not competent to the Corporation to absorb the appellants as permanent Senior Health Inspectors on the establishment of the Corporation and the Resolution of the Corporation dated 30th December, 1974, though sanctioned by the Government by its order dated 6th May, 1975, was not effective to bring about absorption of the appellants as permanent employees of the Corporation with simultaneous termination of their service as Government servants. This argument requires consideration of some of the relevant provisions of the Cadre and Recruitment Regulations. The Cadre and Recruitment Regulations were framed under sections 7, 84, 85, 88 and 94 of the Act and they were sanct ioned by the State Government under section 94(g) of the Act and they came into force with effect from 3rd March, 1971 being the date on which they were published in the Government Gazette. Regulation 3 laid down the method of recruitment and minimum qualifications for recruitment to various posts enumerated in the Schedule. One of the posts enumerated in the Schedule was the post of Senior Health Inspector and it was provided in Column 2 of the Schedule that the method of recruitment to the post of Senior Health Inspector shall be:"50% by promotion from the Cadre of Junior Health Inspectors of the Corporation ,50% by deputation from the State Directorate of Health Services."4. The Cadre and Recruitment Regulations thus recognised only two modes of recruitment to the post of Senior Health Inspector, namely, promotion from the cadre of Junior Health Inspectors and deputation from the State Directorate of Health Services and one half of the cadre was to be drawn from each of these two sources. No other mode of recruitment could be resorted to by the Corporation under the Cadre and Recruitment Regulations. it is difficult to see how in the face of this provision which has admittedly statutory effect, the posts of Senior Health inspector could be filled in by absorption of deputationist Senior Health Inspectors from the Karnataka State Civil Service. Senior Health Inspectors from the State Directorate of Health Services could only be on deputation to t he extent of one half of the number of posts of Senior Health Inspectors on the Corporation establishment and they could not be absorbed as permanent Senior Health Inspectors under the Corporation without violating the aforesaid statutory provision. This statutory provision does not contemplate any Senior Health Inspectors on the establishment of the Corporation who are drawn from the State Directorate of Health Services otherwise than on deputation and to absorb Senior Health Inspectors from the State Directorate of Health Services as permanent employees of the Corporation (otherwise than on deputation), would be plainly contrary to its express mandate. It was, however, contended on behalf of the appellants that when they were absorbed as permanent Senior Health Inspectors on the establishment of the Corporation, they were already in the cadre of Senior Health Inspectors under the Corporation, filling 50% of the posts and their absorption as permanent Senior Health Inspectors did not constitute fresh entry into the cadre so as to require compliance with the Cadre and Recruitment Regulations. The position, according to the appellants, was similar to that of an employee Who is initially Officiating in a post in a cadre and is subsequently confirmed in the post. This contention, we do not think, is well founded. It is only by way of deputation that Senior Health Inspectors from the State Directorate of Health Services can find place in the Cadre of Senior Health Inspectors on the establishment of the Corporation. Not only their entry but also their continuance in the cadre of Senior Health Inspectors on the Corporation establishment depends on their being on deputation. There is no scope under the Cadre and Recruitment Regulations for their absorption as permanent Senior Health Inspectors under the Corporation. In fact, it is impermissible to do so. The category of Senior Health Inspectors, who are regular employees of the Corporation, can be drawn only by promotion from Junior Health Inspectors and that too, to the extent of only one half the number of posts. It is, therefore, obvious that without amendment of the Cadre and Recruitment Regulations permit- ting appointment--and absorption is really nothing but appointment--of Senior Health Inspectors drawn from the State Directorate of Health Services as perm anent Senior Health Inspectors under the Corporation, the appellants could not be absorbed as permanent Senior Health Inspectors on the Corporation establishment. The conclusion must irresistibly follow that the Resolution of the Corporation dated 30th December, 1974 read with the Government order dated 6th May, 1975 did not operate to put an end to the status of the appellants as Government servants and to create the relationship of master and servant between the Corporation and the appellants and in the circumstances, it was competent to the State Government to pass the Order dated 25th August, 1975 withdrawing the sanction grante d by it under the earlier Order dated 6th May, 1975. This view taken by us renders it unnecessary to consider whether the communication dated 30th December, 1974 was addressed by the appellants to the Mayor of the Corp oration expressing their willingness to be absorbed as Senior Health Inspectors under the Corporation on the terms set out in the Resolution dated 30th December, 1974. Even if any such communication was sent, it could have no legal effect because, as already pointed out by us. the appellants could not be absorbed as permanent Senior Health Inspectors under the Corporation, unless and until the Cadre and Recruitment Regulations were first amended so as to permit such absorption.5. | 0[ds]The Cadre and Recruitment Regulations thus recognised only two modes of recruitment to the post of Senior Health Inspector, namely, promotion from the cadre of Junior Health Inspectors and deputation from the State Directorate of Health Services and one half of the cadre was to be drawn from each of these two sources. No other mode of recruitment could be resorted to by the Corporation under the Cadre and Recruitment Regulations. it is difficult to see how in the face of this provision which has admittedly statutory effect, the posts of Senior Health inspector could be filled in by absorption of deputationist Senior Health Inspectors from the Karnataka State Civil Service. Senior Health Inspectors from the State Directorate of Health Services could only be on deputation to t he extent of one half of the number of posts of Senior Health Inspectors on the Corporation establishment and they could not be absorbed as permanent Senior Health Inspectors under the Corporation without violating the aforesaid statutory provision. This statutory provision does not contemplate any Senior Health Inspectors on the establishment of the Corporation who are drawn from the State Directorate of Health Services otherwise than on deputation and to absorb Senior Health Inspectors from the State Directorate of Health Services as permanent employees of the Corporation (otherwise than on deputation), would be plainly contrary to its express mandate. It was, however, contended on behalf of the appellants that when they were absorbed as permanent Senior Health Inspectors on the establishment of the Corporation, they were already in the cadre of Senior Health Inspectors under the Corporation, filling 50% of the posts and their absorption as permanent Senior Health Inspectors did not constitute fresh entry into the cadre so as to require compliance with the Cadre and Recruitment Regulations. The position, according to the appellants, was similar to that of an employee Who is initially Officiating in a post in a cadre and is subsequently confirmed in the post. This contention, we do not think, is well founded. It is only by way of deputation that Senior Health Inspectors from the State Directorate of Health Services can find place in the Cadre of Senior Health Inspectors on the establishment of the Corporation. Not only their entry but also their continuance in the cadre of Senior Health Inspectors on the Corporation establishment depends on their being on deputation. There is no scope under the Cadre and Recruitment Regulations for their absorption as permanent Senior Health Inspectors under the Corporation. In fact, it is impermissible to do so. The category of Senior Health Inspectors, who are regular employees of the Corporation, can be drawn only by promotion from Junior Health Inspectors and that too, to the extent of only one half the number of posts. It is, therefore, obvious that without amendment of the Cadre and Recruitment Regulations permit- ting appointment--and absorption is really nothing but appointment--of Senior Health Inspectors drawn from the State Directorate of Health Services as perm anent Senior Health Inspectors under the Corporation, the appellants could not be absorbed as permanent Senior Health Inspectors on the Corporation establishment. The conclusion must irresistibly follow that the Resolution of the Corporation dated 30th December, 1974 read with the Government order dated 6th May, 1975 did not operate to put an end to the status of the appellants as Government servants and to create the relationship of master and servant between the Corporation and the appellants and in the circumstances, it was competent to the State Government to pass the Order dated 25th August, 1975 withdrawing the sanction grante d by it under the earlier Order dated 6th May, 1975. This view taken by us renders it unnecessary to consider whether the communication dated 30th December, 1974 was addressed by the appellants to the Mayor of the Corp oration expressing their willingness to be absorbed as Senior Health Inspectors under the Corporation on the terms set out in the Resolution dated 30th December, 1974. Even if any such communication was sent, it could have no legal effect because, as already pointed out by us. the appellants could not be absorbed as permanent Senior Health Inspectors under the Corporation, unless and until the Cadre and Recruitment Regulations were first amended so as to permit such absorption. | 0 | 2,753 | 770 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
nothing in t he Act which debarred absorption of the appellants as permanent employees of the Corporation under the Corporation Resolution dated 30th December, 1974 read with the Government Order dated 6th May, 1975.But the argument of the State Government and the Corporation was, and this argument found favour with the Division Bench of the High Court, that until the Cadre and Recruitment Regulations were amended, it was not competent to the Corporation to absorb the appellants as permanent Senior Health Inspectors on the establishment of the Corporation and the Resolution of the Corporation dated 30th December, 1974, though sanctioned by the Government by its order dated 6th May, 1975, was not effective to bring about absorption of the appellants as permanent employees of the Corporation with simultaneous termination of their service as Government servants. This argument requires consideration of some of the relevant provisions of the Cadre and Recruitment Regulations. The Cadre and Recruitment Regulations were framed under sections 7, 84, 85, 88 and 94 of the Act and they were sanct ioned by the State Government under section 94(g) of the Act and they came into force with effect from 3rd March, 1971 being the date on which they were published in the Government Gazette. Regulation 3 laid down the method of recruitment and minimum qualifications for recruitment to various posts enumerated in the Schedule. One of the posts enumerated in the Schedule was the post of Senior Health Inspector and it was provided in Column 2 of the Schedule that the method of recruitment to the post of Senior Health Inspector shall be:"50% by promotion from the Cadre of Junior Health Inspectors of the Corporation ,50% by deputation from the State Directorate of Health Services."4. The Cadre and Recruitment Regulations thus recognised only two modes of recruitment to the post of Senior Health Inspector, namely, promotion from the cadre of Junior Health Inspectors and deputation from the State Directorate of Health Services and one half of the cadre was to be drawn from each of these two sources. No other mode of recruitment could be resorted to by the Corporation under the Cadre and Recruitment Regulations. it is difficult to see how in the face of this provision which has admittedly statutory effect, the posts of Senior Health inspector could be filled in by absorption of deputationist Senior Health Inspectors from the Karnataka State Civil Service. Senior Health Inspectors from the State Directorate of Health Services could only be on deputation to t he extent of one half of the number of posts of Senior Health Inspectors on the Corporation establishment and they could not be absorbed as permanent Senior Health Inspectors under the Corporation without violating the aforesaid statutory provision. This statutory provision does not contemplate any Senior Health Inspectors on the establishment of the Corporation who are drawn from the State Directorate of Health Services otherwise than on deputation and to absorb Senior Health Inspectors from the State Directorate of Health Services as permanent employees of the Corporation (otherwise than on deputation), would be plainly contrary to its express mandate. It was, however, contended on behalf of the appellants that when they were absorbed as permanent Senior Health Inspectors on the establishment of the Corporation, they were already in the cadre of Senior Health Inspectors under the Corporation, filling 50% of the posts and their absorption as permanent Senior Health Inspectors did not constitute fresh entry into the cadre so as to require compliance with the Cadre and Recruitment Regulations. The position, according to the appellants, was similar to that of an employee Who is initially Officiating in a post in a cadre and is subsequently confirmed in the post. This contention, we do not think, is well founded. It is only by way of deputation that Senior Health Inspectors from the State Directorate of Health Services can find place in the Cadre of Senior Health Inspectors on the establishment of the Corporation. Not only their entry but also their continuance in the cadre of Senior Health Inspectors on the Corporation establishment depends on their being on deputation. There is no scope under the Cadre and Recruitment Regulations for their absorption as permanent Senior Health Inspectors under the Corporation. In fact, it is impermissible to do so. The category of Senior Health Inspectors, who are regular employees of the Corporation, can be drawn only by promotion from Junior Health Inspectors and that too, to the extent of only one half the number of posts. It is, therefore, obvious that without amendment of the Cadre and Recruitment Regulations permit- ting appointment--and absorption is really nothing but appointment--of Senior Health Inspectors drawn from the State Directorate of Health Services as perm anent Senior Health Inspectors under the Corporation, the appellants could not be absorbed as permanent Senior Health Inspectors on the Corporation establishment. The conclusion must irresistibly follow that the Resolution of the Corporation dated 30th December, 1974 read with the Government order dated 6th May, 1975 did not operate to put an end to the status of the appellants as Government servants and to create the relationship of master and servant between the Corporation and the appellants and in the circumstances, it was competent to the State Government to pass the Order dated 25th August, 1975 withdrawing the sanction grante d by it under the earlier Order dated 6th May, 1975. This view taken by us renders it unnecessary to consider whether the communication dated 30th December, 1974 was addressed by the appellants to the Mayor of the Corp oration expressing their willingness to be absorbed as Senior Health Inspectors under the Corporation on the terms set out in the Resolution dated 30th December, 1974. Even if any such communication was sent, it could have no legal effect because, as already pointed out by us. the appellants could not be absorbed as permanent Senior Health Inspectors under the Corporation, unless and until the Cadre and Recruitment Regulations were first amended so as to permit such absorption.5.
### Response:
0
### Explanation:
The Cadre and Recruitment Regulations thus recognised only two modes of recruitment to the post of Senior Health Inspector, namely, promotion from the cadre of Junior Health Inspectors and deputation from the State Directorate of Health Services and one half of the cadre was to be drawn from each of these two sources. No other mode of recruitment could be resorted to by the Corporation under the Cadre and Recruitment Regulations. it is difficult to see how in the face of this provision which has admittedly statutory effect, the posts of Senior Health inspector could be filled in by absorption of deputationist Senior Health Inspectors from the Karnataka State Civil Service. Senior Health Inspectors from the State Directorate of Health Services could only be on deputation to t he extent of one half of the number of posts of Senior Health Inspectors on the Corporation establishment and they could not be absorbed as permanent Senior Health Inspectors under the Corporation without violating the aforesaid statutory provision. This statutory provision does not contemplate any Senior Health Inspectors on the establishment of the Corporation who are drawn from the State Directorate of Health Services otherwise than on deputation and to absorb Senior Health Inspectors from the State Directorate of Health Services as permanent employees of the Corporation (otherwise than on deputation), would be plainly contrary to its express mandate. It was, however, contended on behalf of the appellants that when they were absorbed as permanent Senior Health Inspectors on the establishment of the Corporation, they were already in the cadre of Senior Health Inspectors under the Corporation, filling 50% of the posts and their absorption as permanent Senior Health Inspectors did not constitute fresh entry into the cadre so as to require compliance with the Cadre and Recruitment Regulations. The position, according to the appellants, was similar to that of an employee Who is initially Officiating in a post in a cadre and is subsequently confirmed in the post. This contention, we do not think, is well founded. It is only by way of deputation that Senior Health Inspectors from the State Directorate of Health Services can find place in the Cadre of Senior Health Inspectors on the establishment of the Corporation. Not only their entry but also their continuance in the cadre of Senior Health Inspectors on the Corporation establishment depends on their being on deputation. There is no scope under the Cadre and Recruitment Regulations for their absorption as permanent Senior Health Inspectors under the Corporation. In fact, it is impermissible to do so. The category of Senior Health Inspectors, who are regular employees of the Corporation, can be drawn only by promotion from Junior Health Inspectors and that too, to the extent of only one half the number of posts. It is, therefore, obvious that without amendment of the Cadre and Recruitment Regulations permit- ting appointment--and absorption is really nothing but appointment--of Senior Health Inspectors drawn from the State Directorate of Health Services as perm anent Senior Health Inspectors under the Corporation, the appellants could not be absorbed as permanent Senior Health Inspectors on the Corporation establishment. The conclusion must irresistibly follow that the Resolution of the Corporation dated 30th December, 1974 read with the Government order dated 6th May, 1975 did not operate to put an end to the status of the appellants as Government servants and to create the relationship of master and servant between the Corporation and the appellants and in the circumstances, it was competent to the State Government to pass the Order dated 25th August, 1975 withdrawing the sanction grante d by it under the earlier Order dated 6th May, 1975. This view taken by us renders it unnecessary to consider whether the communication dated 30th December, 1974 was addressed by the appellants to the Mayor of the Corp oration expressing their willingness to be absorbed as Senior Health Inspectors under the Corporation on the terms set out in the Resolution dated 30th December, 1974. Even if any such communication was sent, it could have no legal effect because, as already pointed out by us. the appellants could not be absorbed as permanent Senior Health Inspectors under the Corporation, unless and until the Cadre and Recruitment Regulations were first amended so as to permit such absorption.
|
C.R. Patil Vs. State Of Gujarat | bail was granted by this Court pursuant to which the petitioners were enlarged on bail, no doubt for a temporary period. It is not even the allegation of the respondents that the petitioners have violated terms and/or conditions of the said order passed by this Court. When the petitioners have shown their willingness to pay the amount and the Special Leave Petitions are pending, this Court will consider all aspects when the matters will be taken up for hearing. But in view of the fact that an order was passed by this Court temporarily releasing them on bail is over and Special Leave Petitions await hearing and as stated by learned counsel for the petitioners, the petitioners intend to enter into meaningful negotiations with the respondents and to do all the necessary acts for payment of loan amount, it would be in the interest of justice to enlarge them on bail so as to enable them to make arrangements for such payment. For the foregoing reasons, the application deserves to be allowed and is accordingly allowed. The petitioners are ordered to be enlarged on bail till further orders on their each furnishing a personal bond in an amount of Rs.1,00,000/- (Rupees one lakh only) with two solvent sureties of the like amount to the satisfaction of the Sessions Court, Surat, on the same terms and conditions on which they were released on bail by this Court on March 7, 2005. As is clear, we are allowing bail to the two petitioners persuaded by very peculiar facts and circumstances of this case, and guided mainly by the consideration that their retention in jail would be adverse to the interest of the several investors/depositors of the bank while the latter are likely to be benefited by the release of the petitioners on temporary bail, it is hoped that the petitioners shall make a genuine effort making use of their liberty to clear the debts. If the petitioners are found to have failed in discharging this obligation or misusing their liberty in any way, the order of bail shall be liable to be recalled." 8. Pursuant to the above order, the appellant was released on bail. The learned counsel for the appellant stated that the appellant made sincere efforts and has entered into One Time Settlement (OTS) with the respondent Bank and fully re-paid the amount as per the said settlement. Respondent No. 4-Bank addressed a letter to the appellant in the capacity of Director of M/s AEPL which reads thus; "This is to certify that the abovementioned account No.OD-ODR-011 has been fully repaid as per your application under Special One Time Settlement Scheme (18-5-07) approved by the High Level Committee meeting held on 25-8-2008." 9. The matter was thereafter placed before a two-Judge Bench on September 19, 2006 and the following order was passed; "It is stated by Mr. K.T.S. Tulsi, learned senior counsel appearing for the petitioner(s) that the parties have settled their disputes in terms whereof out of Rs.68 crores, 25% of which would come to Rs.17 crores would be paid by the petitioner(s). It is stated that the petitioner(s) have deposited a total amount of Rs.12 crores by now. The diamond Jubilee Co-operative Bank Ltd. in terms of its letter dated 14.9.2006 has allowed the petitioner(s) to pay balance amount of Rs.5 crores by 4.10.2006. Mr. Tulsi states that petitioner(s) shall pay the balance amount of Rs.5 crores within the aforementioned period." 10. The respondent No. 4-Bank is in liquidation and Official Liquidator is managing the affairs of the Bank who has filed Lavad Case No. 1180/2002 in the Court of Board of Nominees at Surat. He has also informed the Board of Nominees that the defendants in the Lavad Suit (M/s AEPC & Ors.) had fully paid up the full amount under OTS Scheme and the plaintiff (Bank) did not want to proceed with the matter and accordingly it sought permission to withdraw the suit. 11. The said application reads thus; "The defendant of this matter has fully paid up the full amount under the OTS Scheme, which has been agreed in the meeting dated 25.8.2008 of High Level Committee (Gandhinagar), this plaintiff does not want to proceed in this suit and on today withdraw the same unconditionally, which is declare to this honourable court. For, this suit has been withdrawn whatever refund for it is required to be paid, same shall have to be paid in the name of the bank." 12. Necessary permission was granted by the Board of Nominee for withdrawal of the suit and the Lavad Case is no more pending. 13. We have also heard the learned counsel for the State. On behalf of the State it was stated that the entire amount which was required to be paid by M/s AEPC has already been paid and an appropriate order may be passed granting relief in favour of the appellant and the State has no objection if such prayer is granted. 14. From the above facts, it is clear that the amount which was required to be paid by M/s AEPC has already been paid by the appellant herein under OTS. The Bank has, vide its communication dated September 19, 2008 referred to above, accepted the above fact. Again, the Bank which had filed Lavad Case through Official Liquidator in the Court of Board of Nominees, Surat has also withdrawn the said suit in view of settlement and receipt of payment under OTS. The State has also no objection to the said settlement. 15. The learned counsel for the appellant now prays that in view of full payment under OTS, nothing requires to be done by the appellant. The condition imposed by the High Court in the interim order referred to above does not survive and his properties may be ordered to be released from attachment and be made available to him by relieving him of the undertaking given by him. 16. In our opinion, the appellant is entitled to the relief sought. | 1[ds]14. From the above facts, it is clear that the amount which was required to be paid by M/s AEPC has already been paid by the appellant herein under OTS. The Bank has, vide its communication dated September 19, 2008 referred to above, accepted the above fact. Again, the Bank which had filed Lavad Case through Official Liquidator in the Court of Board of Nominees, Surat has also withdrawn the said suit in view of settlement and receipt of payment under OTS. The State has also no objection to the said settlementThe learned counsel for the appellant now prays that in view of full payment under OTS, nothing requires to be done by theappellant.The condition imposed by the High Court in the interim order referred to above does not survive and his properties may be ordered to be released from attachment and be made available to him by relieving him of the undertaking given by him16. In our opinion, the appellant is entitled to the relief sought. | 1 | 1,996 | 185 | ### 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:
bail was granted by this Court pursuant to which the petitioners were enlarged on bail, no doubt for a temporary period. It is not even the allegation of the respondents that the petitioners have violated terms and/or conditions of the said order passed by this Court. When the petitioners have shown their willingness to pay the amount and the Special Leave Petitions are pending, this Court will consider all aspects when the matters will be taken up for hearing. But in view of the fact that an order was passed by this Court temporarily releasing them on bail is over and Special Leave Petitions await hearing and as stated by learned counsel for the petitioners, the petitioners intend to enter into meaningful negotiations with the respondents and to do all the necessary acts for payment of loan amount, it would be in the interest of justice to enlarge them on bail so as to enable them to make arrangements for such payment. For the foregoing reasons, the application deserves to be allowed and is accordingly allowed. The petitioners are ordered to be enlarged on bail till further orders on their each furnishing a personal bond in an amount of Rs.1,00,000/- (Rupees one lakh only) with two solvent sureties of the like amount to the satisfaction of the Sessions Court, Surat, on the same terms and conditions on which they were released on bail by this Court on March 7, 2005. As is clear, we are allowing bail to the two petitioners persuaded by very peculiar facts and circumstances of this case, and guided mainly by the consideration that their retention in jail would be adverse to the interest of the several investors/depositors of the bank while the latter are likely to be benefited by the release of the petitioners on temporary bail, it is hoped that the petitioners shall make a genuine effort making use of their liberty to clear the debts. If the petitioners are found to have failed in discharging this obligation or misusing their liberty in any way, the order of bail shall be liable to be recalled." 8. Pursuant to the above order, the appellant was released on bail. The learned counsel for the appellant stated that the appellant made sincere efforts and has entered into One Time Settlement (OTS) with the respondent Bank and fully re-paid the amount as per the said settlement. Respondent No. 4-Bank addressed a letter to the appellant in the capacity of Director of M/s AEPL which reads thus; "This is to certify that the abovementioned account No.OD-ODR-011 has been fully repaid as per your application under Special One Time Settlement Scheme (18-5-07) approved by the High Level Committee meeting held on 25-8-2008." 9. The matter was thereafter placed before a two-Judge Bench on September 19, 2006 and the following order was passed; "It is stated by Mr. K.T.S. Tulsi, learned senior counsel appearing for the petitioner(s) that the parties have settled their disputes in terms whereof out of Rs.68 crores, 25% of which would come to Rs.17 crores would be paid by the petitioner(s). It is stated that the petitioner(s) have deposited a total amount of Rs.12 crores by now. The diamond Jubilee Co-operative Bank Ltd. in terms of its letter dated 14.9.2006 has allowed the petitioner(s) to pay balance amount of Rs.5 crores by 4.10.2006. Mr. Tulsi states that petitioner(s) shall pay the balance amount of Rs.5 crores within the aforementioned period." 10. The respondent No. 4-Bank is in liquidation and Official Liquidator is managing the affairs of the Bank who has filed Lavad Case No. 1180/2002 in the Court of Board of Nominees at Surat. He has also informed the Board of Nominees that the defendants in the Lavad Suit (M/s AEPC & Ors.) had fully paid up the full amount under OTS Scheme and the plaintiff (Bank) did not want to proceed with the matter and accordingly it sought permission to withdraw the suit. 11. The said application reads thus; "The defendant of this matter has fully paid up the full amount under the OTS Scheme, which has been agreed in the meeting dated 25.8.2008 of High Level Committee (Gandhinagar), this plaintiff does not want to proceed in this suit and on today withdraw the same unconditionally, which is declare to this honourable court. For, this suit has been withdrawn whatever refund for it is required to be paid, same shall have to be paid in the name of the bank." 12. Necessary permission was granted by the Board of Nominee for withdrawal of the suit and the Lavad Case is no more pending. 13. We have also heard the learned counsel for the State. On behalf of the State it was stated that the entire amount which was required to be paid by M/s AEPC has already been paid and an appropriate order may be passed granting relief in favour of the appellant and the State has no objection if such prayer is granted. 14. From the above facts, it is clear that the amount which was required to be paid by M/s AEPC has already been paid by the appellant herein under OTS. The Bank has, vide its communication dated September 19, 2008 referred to above, accepted the above fact. Again, the Bank which had filed Lavad Case through Official Liquidator in the Court of Board of Nominees, Surat has also withdrawn the said suit in view of settlement and receipt of payment under OTS. The State has also no objection to the said settlement. 15. The learned counsel for the appellant now prays that in view of full payment under OTS, nothing requires to be done by the appellant. The condition imposed by the High Court in the interim order referred to above does not survive and his properties may be ordered to be released from attachment and be made available to him by relieving him of the undertaking given by him. 16. In our opinion, the appellant is entitled to the relief sought.
### Response:
1
### Explanation:
14. From the above facts, it is clear that the amount which was required to be paid by M/s AEPC has already been paid by the appellant herein under OTS. The Bank has, vide its communication dated September 19, 2008 referred to above, accepted the above fact. Again, the Bank which had filed Lavad Case through Official Liquidator in the Court of Board of Nominees, Surat has also withdrawn the said suit in view of settlement and receipt of payment under OTS. The State has also no objection to the said settlementThe learned counsel for the appellant now prays that in view of full payment under OTS, nothing requires to be done by theappellant.The condition imposed by the High Court in the interim order referred to above does not survive and his properties may be ordered to be released from attachment and be made available to him by relieving him of the undertaking given by him16. In our opinion, the appellant is entitled to the relief sought.
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Ramreddy Rajeshkhanna Reddy Vs. State Of A.P | the morning. 22. In this case, the time of actual offence having regard to the different statements made by different witnesses may assume some importance as one of the grounds whereupon the High Court has based its judgment of conviction is the time of death of the deceased on the basis of the opinion rendered by Dr. P. Venkateshvarlu (P.W.13). 23. In Modis Medical Jurisprudence, 22nd edition, as regard duration of rigor mortis, it is stated: ?AverageMinimumMaximum HoursMinutesHoursMinutesHoursMinutes Duration of191230400" rigor mortis 24. It was, therefore, extremely difficult to purport the exact time of death of the deceased, more so when no sufficient reason was assigned in the post- mortem report. 25. In Pattipati Venkaiah v. State of Andhra Pradesh [(1985) 4 SCC 80] , this Court held: "10. Another circumstance stressed by Mr Garg was that according to the medical evidence the deceased must have died by about 5.30 a.m. on July 2, 1975 and no reasonable explanation has been given by the prosecution as to why the dead body was taken to the hospital at about 10.55 a.m. after about five hours when the hospital was quite near. Here, the learned counsel as also the trial court have committed a serious error in the appreciation of evidence. A perusal of the evidence of the doctor does not conclusively show that the deceased must have died at about 5-6 a.m. Medical science is not yet so perfect as to determine the exact time of death nor can the same be determined in a computerised or mathematical fashion so as to be accurate to the last second." (Emphasis supplied) 26. In Ram Udgar Singh v. State of Bihar [(2004) 10 SCC 443] , this Court held: "10. Evidence of PWs 1, 2, 3 and 5 clearly establishes the definite role played by the accused- appellant. So far as the plea relating to the time of death on the basis of medical evidence is concerned, emphasis is laid on the fact that rigor mortis could not have set in, in the dead body within two hours. The High Court has referred to several treatises on medical jurisprudence to conclude that the time which is usually three to four hours may vary according to climatic conditions. We find no infirmity in the conclusion. The courts were justified in holding that the appellant was the assailant, and accordingly convicted him. No exception could be taken to the well-merited reasoning squarely found supported by overwhelming, relevant, convincing and concrete evidence placed on record by the prosecution in this case." [See also State of Punjab v. Daljit Singh & Anr. (2004) 10 SCC 141.] 27. In the Post-Mortem Report, apart from stating that rigor mortis were confined to both upper and lower limbs, no other reason has been disclosed. 28. Even the recovery of knife was said to have been made only from the Appellant No. 2. 29. It is now well-settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well-settled that suspicion, however, grave may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. [See Anil Kumar Singh v. State of Bihar (2003) 9 SCC 67 and Reddy Sampath Kumar v. State of A.P. (2005) 7 SCC 603 ] 30. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case courts should look for some corroboration. 31. In State of U.P. v. Satish [(2005) 3 SCC 114] , this Court observed: "22. The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW 2." [See also Bodh Raj @ Bodha & Ors. Vs. State of Jammu & Kashmir AIR 2002 SC 3164 .] 32. It is, furthermore, well-known that motive by itself is not sufficient to prove the guilt. [See State of M.P. through CBI & Ors. v. Paltan Mallah & Ors. (2005) 3 SCC 169 , para 9.] 33. Furthermore, the solitary witness, to prove the alleged motive, namely, P.W.8 was examined by the police after two days. No reliance, thus, can be placed on his evidence. 34. It may be true that the Appellant No. 2 was a history-sheeter. It may further be true that P.W.1 instituted a case against the Appellant No. 1 for threatening him when he was on bail. It may also be, that P.W.7 did not identify the Appellants as he was found shaking. If the Appellants are guilty of other offences, they can be proceeded against appropriately and in accordance with law. We hope the authorities would do so. 35. | 1[ds]In this case, the time of actual offence having regard to the different statements made by different witnesses may assume some importance as one of the grounds whereupon the High Court has based its judgment of conviction is the time of death of the deceased on the basis of the opinion rendered by Dr. P. Venkateshvarlu (P.W.13)It was, therefore, extremely difficult to purport the exact time of death of the deceased, more so when no sufficient reason was assigned in the post- mortem reportIn the Post-Mortem Report, apart from stating that rigor mortis were confined to both upper and lower limbs, no other reason has been disclosedEven the recovery of knife was said to have been made only from the Appellant No. 2The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case courts should look for some corroborationFurthermore, the solitary witness, to prove the alleged motive, namely, P.W.8 was examined by the police after two days. No reliance, thus, can be placed on his evidenceIt may be true that the Appellant No. 2 was a history-sheeter. It may further be true that P.W.1 instituted a case against the Appellant No. 1 for threatening him when he was on bail. It may also be, that P.W.7 did not identify the Appellants as he was found shaking. If the Appellants are guilty of other offences, they can be proceeded against appropriately and in accordance with law. We hope the authorities would do so | 1 | 4,639 | 320 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
the morning. 22. In this case, the time of actual offence having regard to the different statements made by different witnesses may assume some importance as one of the grounds whereupon the High Court has based its judgment of conviction is the time of death of the deceased on the basis of the opinion rendered by Dr. P. Venkateshvarlu (P.W.13). 23. In Modis Medical Jurisprudence, 22nd edition, as regard duration of rigor mortis, it is stated: ?AverageMinimumMaximum HoursMinutesHoursMinutesHoursMinutes Duration of191230400" rigor mortis 24. It was, therefore, extremely difficult to purport the exact time of death of the deceased, more so when no sufficient reason was assigned in the post- mortem report. 25. In Pattipati Venkaiah v. State of Andhra Pradesh [(1985) 4 SCC 80] , this Court held: "10. Another circumstance stressed by Mr Garg was that according to the medical evidence the deceased must have died by about 5.30 a.m. on July 2, 1975 and no reasonable explanation has been given by the prosecution as to why the dead body was taken to the hospital at about 10.55 a.m. after about five hours when the hospital was quite near. Here, the learned counsel as also the trial court have committed a serious error in the appreciation of evidence. A perusal of the evidence of the doctor does not conclusively show that the deceased must have died at about 5-6 a.m. Medical science is not yet so perfect as to determine the exact time of death nor can the same be determined in a computerised or mathematical fashion so as to be accurate to the last second." (Emphasis supplied) 26. In Ram Udgar Singh v. State of Bihar [(2004) 10 SCC 443] , this Court held: "10. Evidence of PWs 1, 2, 3 and 5 clearly establishes the definite role played by the accused- appellant. So far as the plea relating to the time of death on the basis of medical evidence is concerned, emphasis is laid on the fact that rigor mortis could not have set in, in the dead body within two hours. The High Court has referred to several treatises on medical jurisprudence to conclude that the time which is usually three to four hours may vary according to climatic conditions. We find no infirmity in the conclusion. The courts were justified in holding that the appellant was the assailant, and accordingly convicted him. No exception could be taken to the well-merited reasoning squarely found supported by overwhelming, relevant, convincing and concrete evidence placed on record by the prosecution in this case." [See also State of Punjab v. Daljit Singh & Anr. (2004) 10 SCC 141.] 27. In the Post-Mortem Report, apart from stating that rigor mortis were confined to both upper and lower limbs, no other reason has been disclosed. 28. Even the recovery of knife was said to have been made only from the Appellant No. 2. 29. It is now well-settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well-settled that suspicion, however, grave may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. [See Anil Kumar Singh v. State of Bihar (2003) 9 SCC 67 and Reddy Sampath Kumar v. State of A.P. (2005) 7 SCC 603 ] 30. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case courts should look for some corroboration. 31. In State of U.P. v. Satish [(2005) 3 SCC 114] , this Court observed: "22. The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW 2." [See also Bodh Raj @ Bodha & Ors. Vs. State of Jammu & Kashmir AIR 2002 SC 3164 .] 32. It is, furthermore, well-known that motive by itself is not sufficient to prove the guilt. [See State of M.P. through CBI & Ors. v. Paltan Mallah & Ors. (2005) 3 SCC 169 , para 9.] 33. Furthermore, the solitary witness, to prove the alleged motive, namely, P.W.8 was examined by the police after two days. No reliance, thus, can be placed on his evidence. 34. It may be true that the Appellant No. 2 was a history-sheeter. It may further be true that P.W.1 instituted a case against the Appellant No. 1 for threatening him when he was on bail. It may also be, that P.W.7 did not identify the Appellants as he was found shaking. If the Appellants are guilty of other offences, they can be proceeded against appropriately and in accordance with law. We hope the authorities would do so. 35.
### Response:
1
### Explanation:
In this case, the time of actual offence having regard to the different statements made by different witnesses may assume some importance as one of the grounds whereupon the High Court has based its judgment of conviction is the time of death of the deceased on the basis of the opinion rendered by Dr. P. Venkateshvarlu (P.W.13)It was, therefore, extremely difficult to purport the exact time of death of the deceased, more so when no sufficient reason was assigned in the post- mortem reportIn the Post-Mortem Report, apart from stating that rigor mortis were confined to both upper and lower limbs, no other reason has been disclosedEven the recovery of knife was said to have been made only from the Appellant No. 2The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case courts should look for some corroborationFurthermore, the solitary witness, to prove the alleged motive, namely, P.W.8 was examined by the police after two days. No reliance, thus, can be placed on his evidenceIt may be true that the Appellant No. 2 was a history-sheeter. It may further be true that P.W.1 instituted a case against the Appellant No. 1 for threatening him when he was on bail. It may also be, that P.W.7 did not identify the Appellants as he was found shaking. If the Appellants are guilty of other offences, they can be proceeded against appropriately and in accordance with law. We hope the authorities would do so
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Birendra Kumar Rai Alias Virendra Kumar Rai Vs. Union of India and Others | of the Constitution. In reply to the above additional ground a counter-affidavit has been filed on behalf of the respondents. In the counter-affidavit filed by the Under Secretary to the respondents. In the counter-affidavit filed by the under Secretary to the Government of India, Ministry of Finance, the period from April 10, 1992 to May 27, 1992 is explained in the following manner. . "2. The detenus representation dated April 10, 1992 against the Section 10(1) declaration as forwarded by Central Jail, Agra, was received in the main registry of the department on April 20, 1992. Since the receipt section of the department is heavily loaded, it appears that the receipt was wrongly marked to some other branch, who returned it to the main registry as is indicated on the representation and thereafter it was sent to this section. In between April 25, 1992 and April 26, 1992 were holidays and the representation was received by the PITNDPS Cell on April 27, 19923. On April 27, 1992, a letter was issued by registered post to the sponsoring authority i.e. Narcotics Control Bureau, Varanasi for their comments. Narcotics Control Bureau, Varanasi, vide their letter dated April 30, 1992 gave their comments, which was received in the PITNDPS Cell on May 5, 1992. Within the constraints of office work load in other official matters, the comments offered by the Narcotics Control Bureau, Varanasi, were examined vis-a-vis the points made in the petition on the following three working days i.e. May, 6, 7 and 8, 1992. Since May 9 and 10, 1992 were holidays, another letter was issued on May 11, 1992 to Narcotics Control Bureau, Varanasi asking for further detailed comments so that the representation could be considered thoroughly and appropriately4. The detailed comments were forwarded by Narcotics Control Bureau, Varanasi vide their letter dated May 15, 1992 and the same were received in the PITNDPS Cell on May 20, 1992. Since there were two sets of comments with reference to the petition these were thoroughly examined on May 21 and 22, 1992 May 23 and 24, 1992 being holidays these were submitted with a detailed note on May 25, 1992 and the Honble Finance Minister rejected the representation on May 26, 19925. Vide our memorandum dated May 27, 1992 the detenu was intimated about the result of the representation through the Superintendent, Central Jail Agra, which was receive by the petitioner on June 2, 1992. Though apparently this office has taken one month, the fact is that the representation was given a thorough consideration in consultation with the sponsoring authority twice. Further, one has to take into consideration the time taken in transit. As such there has been no delay at any state and the representation has been processed as expeditiously as possible." 13. A perusal of the above explanation given by the Union of India explains the time taken in dealing with the representation. The period taken by the postal authorities cannot be attributed to any delay or inaction or callousness on the part of the authorities considering such representation. Now if we consider the period after April 20, 1992, it may be noted that some time was taken in wrongly marking the representation to some other branch by the receipt section of the department. However, the representation was received in the concerned section of PITNDPS Cell on April 27, 1992 April 25 and 26, 1992 were holidays. Much stress is laid by the learned counsel for the petitioner on the time spent during the period the representation was wrongly marked to some other branch. Mr. Tulsi in this regard submitted that it was due to human error and the period spent in wrongly marking the representation to some other branch is not a long one, but only five days We are satisfied with the above submission made by Mr. Tulsi. It may be further noted that this representation was not against the order of detention or any grounds in support of the detention order, but it was a representation against the declaration made under Section 10(1) of PITNDPS Act, 1988. The period from April 27, 1992 till May 27, 1992 has been explained in detail in the counter-affidavit filed before this Court and a perusal of the above explanation shows that the time taken cannot be considered so as to draw an inference of inaction or callousness on the part of the authorities. Thus, we do not find any substance in the second ground of challenge levelled by the petitioner against the detention. 14. Before parting with the case we would like to say that this Court has already laid down the law relating to detentions under the preventive detention laws during the last four decades. If the Government takes care that the detention cases arising under the; preventive detention laws are handled by persons fully trained and having experience in such matters, the rights of the citizens can be safeguarded and the preventive detention laws are handled by persons fully trained and having experience in such matters, the rights of the citizens can be safeguarded and the precious time of this Court can be saved. The detaining authorities are required to deal with such cases with more care and circumspection. They should not leave such cases to be dealt with by lower officials and should kept a track on such cases from beginning to the end and also take care that the representations, if any made by the detenus are also dealt with expeditiously without any delay. In matters where the detention orders are passed in relation to such persons who are already in jail under some other laws, the detaining authorities should always apply their mind and show their awareness in this regard in the grounds of detention, the chances of release of such persons on bail and stating the necessity, of keeping such persons in detention under the preventive detention laws. We earnestly hope that the concerned authorities shall deal with such matters with special care. | 0[ds]The admitted facts of the case as also recorded by the High Court in the impugned order show that on November 7, 1990 a complaint had been lodged by the Intelligence Officer of the Narcotics Control Bureau, Varanasi against the petitioner, his father and two brothers in the Court of Session Judge, Varanasi and a custody warrant was also issued on November 22, 1990. But the petitioner having already been arrested and detained on November 21, 1990 in the cases under the Arms Act and Motor Vehicles Act and detained in District Jail Ghazipur, the warrant of arrest issued from the Varanasi Court ion Crime Case No. 195 of 1990 was never executed nor the detenu had been brought from District Jail, Ghazipur to the concerned court at Varanasi. In these circumstances, when the petitioner was not taken into custody under the Crime Case No. 195 of 1990 under the NDPS Act, 1985 and continued to remain in District Jail at Ghazipur in Crime Case No. 402 of 1990 under the Arms Act and Motor Vehicles Act till the passing of the detention order on December 4, 1990, there was nothing wrong in mentioning in the grounds of order of detention that the prosecution proceedings under NDPS Act, 1985 are likely to be initiated against the petitioner. It is no doubt correct that the word likely used in the grounds of detention may not be fully appropriate but this cannot be meant that the detaining authority was not aware of the case pending under NDPS Act, 1985 at Varanasi. We are satisfied with the explanation given by the learned Additional Solicitor General in this regard that till the warrant of arrest issued by the Varanasi Court was executed and the petitioner was brought and produced before the concerned court at Varanasi, the detaining authority was justified in considering that the prosecution proceedings under NDPS Act, 1985 were likely to be initiated against the petitioner. It may be further noted that in para 19 of grounds of detention it has been clearly mentioned that a bail application on behalf of the petitioner had been filed in the Court of Session Judge, Varanasi on December 3, 1990 and in which the next date of hearing had been fixed for December 7, 1990. Thus, it cannot be said that the detaining authority was not aware or had not applied its mind in respect of the fact that a case under NDPS Act, 1985 was already pending in the court at Varanasi when the detaining authority was mentioning the fact that the petitioner had moved the bail application on December 3, 1990 and which was fixed for hearing on December 7, 1990. So far as the question of the satisfaction of the detaining authority is concerned that there was a compelling necessity for detaining the petitioner in order to prevent him from indulging in Illicit Traffic of Narcotic Drugs, the same depends on the subjective satisfaction of the detaining authority and if sufficient material in this regard was placed before the detaining authority, the court is not entitled to interfere in suchdetaining authority was aware that a bail application had already been filed by the petitioner and the same was to come up for hearing on December 7, 1990 and in these circumstances the detaining authority was justified in recording the satisfaction of compelling necessity of issuing the detention order as it could not have been predicted with certainty that the petitioner would not be released on bail. During the course of the arguments of this case before us, it was pointed out by the learned Additional Solicitor General that the bail has been granted in favour of the petitioner and this proves the correctness and legitimacy of the satisfaction of the detaining authority in this regard. There was voluminous documentary evidence placed on record before the detaining authority for passing the order of detention and it cannot be said that there wasof mind in passing the impugned order of detention. The voluminous record available with the detaining authority showed that the petitioner was engaged in illicit traffic in the purchase, sale, possession and abetting the export of Narcotic Drugs in the city of Varanasi which is an area highly vulnerable to such illicit traffic. There was enough material for the satisfaction of the detaining authority that the petitioner and his family were engaged in the clandestine business of preparing and selling heroin for export fromA perusal of the above explanation given by the Union of India explains the time taken in dealing with the representation. The period taken by the postal authorities cannot be attributed to any delay or inaction or callousness on the part of the authorities considering such representation. Now if we consider the period after April 20, 1992, it may be noted that some time was taken in wrongly marking the representation to some other branch by the receipt section of the department. However, the representation was received in the concerned section of PITNDPS Cell on April 27, 1992 April 25 and 26, 1992 were holidays. Much stress is laid by the learned counsel for the petitioner on the time spent during the period the representation was wrongly marked to some other branch. Mr. Tulsi in this regard submitted that it was due to human error and the period spent in wrongly marking the representation to some other branch is not a long one, but only five days We are satisfied with the above submission made by Mr. Tulsi. It may be further noted that this representation was not against the order of detention or any grounds in support of the detention order, but it was a representation against the declaration made under Section 10(1) of PITNDPS Act, 1988. The period from April 27, 1992 till May 27, 1992 has been explained in detail in thefiled before this Court and a perusal of the above explanation shows that the time taken cannot be considered so as to draw an inference of inaction or callousness on the part of the authorities. Thus, we do not find any substance in the second ground of challenge levelled by the petitioner against theBefore parting with the case we would like to say that this Court has already laid down the law relating to detentions under the preventive detention laws during the last four decades. If the Government takes care that the detention cases arising under the; preventive detention laws are handled by persons fully trained and having experience in such matters, the rights of the citizens can be safeguarded and the preventive detention laws are handled by persons fully trained and having experience in such matters, the rights of the citizens can be safeguarded and the precious time of this Court can be saved. The detaining authorities are required to deal with such cases with more care and circumspection. They should not leave such cases to be dealt with by lower officials and should kept a track on such cases from beginning to the end and also take care that the representations, if any made by the detenus are also dealt with expeditiously without any delay. In matters where the detention orders are passed in relation to such persons who are already in jail under some other laws, the detaining authorities should always apply their mind and show their awareness in this regard in the grounds of detention, the chances of release of such persons on bail and stating the necessity, of keeping such persons in detention under the preventive detention laws. We earnestly hope that the concerned authorities shall deal with such matters with special care | 0 | 4,295 | 1,359 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
of the Constitution. In reply to the above additional ground a counter-affidavit has been filed on behalf of the respondents. In the counter-affidavit filed by the Under Secretary to the respondents. In the counter-affidavit filed by the under Secretary to the Government of India, Ministry of Finance, the period from April 10, 1992 to May 27, 1992 is explained in the following manner. . "2. The detenus representation dated April 10, 1992 against the Section 10(1) declaration as forwarded by Central Jail, Agra, was received in the main registry of the department on April 20, 1992. Since the receipt section of the department is heavily loaded, it appears that the receipt was wrongly marked to some other branch, who returned it to the main registry as is indicated on the representation and thereafter it was sent to this section. In between April 25, 1992 and April 26, 1992 were holidays and the representation was received by the PITNDPS Cell on April 27, 19923. On April 27, 1992, a letter was issued by registered post to the sponsoring authority i.e. Narcotics Control Bureau, Varanasi for their comments. Narcotics Control Bureau, Varanasi, vide their letter dated April 30, 1992 gave their comments, which was received in the PITNDPS Cell on May 5, 1992. Within the constraints of office work load in other official matters, the comments offered by the Narcotics Control Bureau, Varanasi, were examined vis-a-vis the points made in the petition on the following three working days i.e. May, 6, 7 and 8, 1992. Since May 9 and 10, 1992 were holidays, another letter was issued on May 11, 1992 to Narcotics Control Bureau, Varanasi asking for further detailed comments so that the representation could be considered thoroughly and appropriately4. The detailed comments were forwarded by Narcotics Control Bureau, Varanasi vide their letter dated May 15, 1992 and the same were received in the PITNDPS Cell on May 20, 1992. Since there were two sets of comments with reference to the petition these were thoroughly examined on May 21 and 22, 1992 May 23 and 24, 1992 being holidays these were submitted with a detailed note on May 25, 1992 and the Honble Finance Minister rejected the representation on May 26, 19925. Vide our memorandum dated May 27, 1992 the detenu was intimated about the result of the representation through the Superintendent, Central Jail Agra, which was receive by the petitioner on June 2, 1992. Though apparently this office has taken one month, the fact is that the representation was given a thorough consideration in consultation with the sponsoring authority twice. Further, one has to take into consideration the time taken in transit. As such there has been no delay at any state and the representation has been processed as expeditiously as possible." 13. A perusal of the above explanation given by the Union of India explains the time taken in dealing with the representation. The period taken by the postal authorities cannot be attributed to any delay or inaction or callousness on the part of the authorities considering such representation. Now if we consider the period after April 20, 1992, it may be noted that some time was taken in wrongly marking the representation to some other branch by the receipt section of the department. However, the representation was received in the concerned section of PITNDPS Cell on April 27, 1992 April 25 and 26, 1992 were holidays. Much stress is laid by the learned counsel for the petitioner on the time spent during the period the representation was wrongly marked to some other branch. Mr. Tulsi in this regard submitted that it was due to human error and the period spent in wrongly marking the representation to some other branch is not a long one, but only five days We are satisfied with the above submission made by Mr. Tulsi. It may be further noted that this representation was not against the order of detention or any grounds in support of the detention order, but it was a representation against the declaration made under Section 10(1) of PITNDPS Act, 1988. The period from April 27, 1992 till May 27, 1992 has been explained in detail in the counter-affidavit filed before this Court and a perusal of the above explanation shows that the time taken cannot be considered so as to draw an inference of inaction or callousness on the part of the authorities. Thus, we do not find any substance in the second ground of challenge levelled by the petitioner against the detention. 14. Before parting with the case we would like to say that this Court has already laid down the law relating to detentions under the preventive detention laws during the last four decades. If the Government takes care that the detention cases arising under the; preventive detention laws are handled by persons fully trained and having experience in such matters, the rights of the citizens can be safeguarded and the preventive detention laws are handled by persons fully trained and having experience in such matters, the rights of the citizens can be safeguarded and the precious time of this Court can be saved. The detaining authorities are required to deal with such cases with more care and circumspection. They should not leave such cases to be dealt with by lower officials and should kept a track on such cases from beginning to the end and also take care that the representations, if any made by the detenus are also dealt with expeditiously without any delay. In matters where the detention orders are passed in relation to such persons who are already in jail under some other laws, the detaining authorities should always apply their mind and show their awareness in this regard in the grounds of detention, the chances of release of such persons on bail and stating the necessity, of keeping such persons in detention under the preventive detention laws. We earnestly hope that the concerned authorities shall deal with such matters with special care.
### Response:
0
### Explanation:
this regard that till the warrant of arrest issued by the Varanasi Court was executed and the petitioner was brought and produced before the concerned court at Varanasi, the detaining authority was justified in considering that the prosecution proceedings under NDPS Act, 1985 were likely to be initiated against the petitioner. It may be further noted that in para 19 of grounds of detention it has been clearly mentioned that a bail application on behalf of the petitioner had been filed in the Court of Session Judge, Varanasi on December 3, 1990 and in which the next date of hearing had been fixed for December 7, 1990. Thus, it cannot be said that the detaining authority was not aware or had not applied its mind in respect of the fact that a case under NDPS Act, 1985 was already pending in the court at Varanasi when the detaining authority was mentioning the fact that the petitioner had moved the bail application on December 3, 1990 and which was fixed for hearing on December 7, 1990. So far as the question of the satisfaction of the detaining authority is concerned that there was a compelling necessity for detaining the petitioner in order to prevent him from indulging in Illicit Traffic of Narcotic Drugs, the same depends on the subjective satisfaction of the detaining authority and if sufficient material in this regard was placed before the detaining authority, the court is not entitled to interfere in suchdetaining authority was aware that a bail application had already been filed by the petitioner and the same was to come up for hearing on December 7, 1990 and in these circumstances the detaining authority was justified in recording the satisfaction of compelling necessity of issuing the detention order as it could not have been predicted with certainty that the petitioner would not be released on bail. During the course of the arguments of this case before us, it was pointed out by the learned Additional Solicitor General that the bail has been granted in favour of the petitioner and this proves the correctness and legitimacy of the satisfaction of the detaining authority in this regard. There was voluminous documentary evidence placed on record before the detaining authority for passing the order of detention and it cannot be said that there wasof mind in passing the impugned order of detention. The voluminous record available with the detaining authority showed that the petitioner was engaged in illicit traffic in the purchase, sale, possession and abetting the export of Narcotic Drugs in the city of Varanasi which is an area highly vulnerable to such illicit traffic. There was enough material for the satisfaction of the detaining authority that the petitioner and his family were engaged in the clandestine business of preparing and selling heroin for export fromA perusal of the above explanation given by the Union of India explains the time taken in dealing with the representation. The period taken by the postal authorities cannot be attributed to any delay or inaction or callousness on the part of the authorities considering such representation. Now if we consider the period after April 20, 1992, it may be noted that some time was taken in wrongly marking the representation to some other branch by the receipt section of the department. However, the representation was received in the concerned section of PITNDPS Cell on April 27, 1992 April 25 and 26, 1992 were holidays. Much stress is laid by the learned counsel for the petitioner on the time spent during the period the representation was wrongly marked to some other branch. Mr. Tulsi in this regard submitted that it was due to human error and the period spent in wrongly marking the representation to some other branch is not a long one, but only five days We are satisfied with the above submission made by Mr. Tulsi. It may be further noted that this representation was not against the order of detention or any grounds in support of the detention order, but it was a representation against the declaration made under Section 10(1) of PITNDPS Act, 1988. The period from April 27, 1992 till May 27, 1992 has been explained in detail in thefiled before this Court and a perusal of the above explanation shows that the time taken cannot be considered so as to draw an inference of inaction or callousness on the part of the authorities. Thus, we do not find any substance in the second ground of challenge levelled by the petitioner against theBefore parting with the case we would like to say that this Court has already laid down the law relating to detentions under the preventive detention laws during the last four decades. If the Government takes care that the detention cases arising under the; preventive detention laws are handled by persons fully trained and having experience in such matters, the rights of the citizens can be safeguarded and the preventive detention laws are handled by persons fully trained and having experience in such matters, the rights of the citizens can be safeguarded and the precious time of this Court can be saved. The detaining authorities are required to deal with such cases with more care and circumspection. They should not leave such cases to be dealt with by lower officials and should kept a track on such cases from beginning to the end and also take care that the representations, if any made by the detenus are also dealt with expeditiously without any delay. In matters where the detention orders are passed in relation to such persons who are already in jail under some other laws, the detaining authorities should always apply their mind and show their awareness in this regard in the grounds of detention, the chances of release of such persons on bail and stating the necessity, of keeping such persons in detention under the preventive detention laws. We earnestly hope that the concerned authorities shall deal with such matters with special care
|
Orient Paper Mills Ltd Vs. Union of India | of a letter dated September 7, 1961 the Deputy Superintendent informed the appellant that in accordance with the decision of the competent authority creamwove paper of the weights mentioned in the latter would be assessable as cartridge paper under item 17 (1) of the tariff in the Schedule. It was further stated that "I have also been directed to serve demands for short levy of excise duty on past clearances of creamwove paper, where due." The Deputy Superintendent addressed another letter dated September 13, 1961 to the same effect. It was added therein that map litho paper weighing 85 grams per sq. metre and above was also to be taken as cartridge paper for the purpose of assessment under item 17 (1) as per the decision of the competent authority. On September 19, 1961 the appellant made an inquiry from the Deputy Superintendent as to the basis on which classification in the matter of assessment of duty had been made. The Deputy Superintendent sent the following reply on September 20, 1961 : " ............. I am to inform you that the classifications as intimated to you in respect of the above-mentioned varieties of paper are as per decision of the competent authority". It was further admitted in the letter of the Asstt. Collector Cuttack to the Collector. Central Excise dated April 7, 1962 that the classification of the paper in question was made under item 17 (1) of the tariff as cartridge paper in accordance with instructions contained in the Collectors letter of September 5, 1961. The Deputy Superintendent had made the assessment accordingly. As regards the copy of the Chemical Examiners Report it was stated that the matter had been referred to the higher authorities. 3. The Deputy Superintendent, Central Excise, had collected the excise duty on creamwove paper in accordance with item 17(1) of the tariff for the months of June and July 1962. The appellant lodged a claim with the Assistant Collector of Central Excise for refund of Rs. 38,809.81 being the sum assessed in excess. The Assistant Collector rejected the claim on the ground that no overcharge had been made. The appellant then appealed under S. 35 of the Act to the Collector of Central Excise and Customs which was rejected by him. The Central Government was thereafter approached under S. 36 on the revisional side. The revision petition was dismissed by an order made in the following terms : "The Government of India have carefully considered all the points made by the applicants, but they regret that they do not find any justification for interfering with the Order-in-Appeal, which in correct in law and based on facts. The revision petition is accordingly rejected." 4. Now it is common ground, it being admitted in the statement of case filed on behalf of the respondent that the paper was assessed to duty in accordance with the instructions from the Collector.The main question is whether an assessment made by a subordinate officer in accordance with the instructions issued by the Collector to whom an appeal lay against the order of that subordinate officer can be called a valid assessment in the eye of law.As has been pointed out in Orient Paper Mills Ltd., v. Union of India, (1969) I SCR 245 = (AIR 1969 SC 48 ) in which the parties were the same as before us now no authority, however high, can control the decision of a judicial or a quasi-judicial authority that being the essence of our judicial system.In the present case, when the assessment is to be made by the Deputy Superintendent or the Assistant Collector, the Collector, to whom an appeal lies against his order of assessment, cannot control or fetter his judgment in the matter of assessment. If the Collector issues directions by which the Deputy Superintendent or the Assistant Collector is bound no room is left for the exercise of his own independent judgment. 5. According to the learned Attorney General the assessment proceedings are not of a quasi-judicial nature nor is the assessing authority a quasi-judicial authority. We are unable to agree.It is apparent from the judgment referred to above and numerous other decisions of this court delivered in respect of various taxation laws that the assessing authorities exercise quasi-judicial functions and they have duty cast on them to act in a judicial and independent manner. If their judgment is controlled by the directions given by the Collector it cannot be said to be their independent judgment in any sense of the word. An appeal then to the Collector becomes an empty formality.In the previous decision of this court mentioned above the appeal and the revision had been rejected by the Collector and the Central Government on the ground that a direction had been issued by the Central Board of Revenue to the effect that the paper in question be treated as belonging to a particular classification. This court entertained no doubt that the direction given by the Board was invalid and it vitiated the proceedings before the Collector as well as the Government.Similarly in the present appeal the direction given by the Collector was invalid and the proceedings before the Deputy Superintendent or the Assistant Collector were vitiated. This position obtains in all the appeals although the type and quality of paper are different.The Central Government merely affirmed the order made by the Collector in each case and did not give any independent reasons for upholding the levy of duty made in accordance with the directions of the Collector. 6. It is unnecessary to deal with other points raised on behalf of the appellant because, in our opinion, these appeals must succeed on the ground that the impugned orders were vitiated for the reasons given and deserve to be set aside. We accordingly quash these orders. The assessing authorities, namely, the Deputy Superintendent or the Assistant Collector shall make fresh assessment of duty in accordance with law and thereafter the question of refund will be decided by the appropriate authorities. | 1[ds]In the present case, when the assessment is to be made by the Deputy Superintendent or the Assistant Collector, the Collector, to whom an appeal lies against his order of assessment, cannot control or fetter his judgment in the matter of assessment. If the Collector issues directions by which the Deputy Superintendent or the Assistant Collector is bound no room is left for the exercise of his own independent judgment5. According to the learned Attorney General the assessment proceedings are not of al nature nor is the assessing authority al authority. We are unable to agree.It is apparent from the judgment referred to above and numerous other decisions of this court delivered in respect of various taxation laws that the assessing authorities exercisel functions and they have duty cast on them to act in a judicial and independent manner. If their judgment is controlled by the directions given by the Collector it cannot be said to be their independent judgment in any sense of the word. An appeal then to the Collector becomes an empty formality.In the previous decision of this court mentioned above the appeal and the revision had been rejected by the Collector and the Central Government on the ground that a direction had been issued by the Central Board of Revenue to the effect that the paper in question be treated as belonging to a particular classification. This court entertained no doubt that the direction given by the Board was invalid and it vitiated the proceedings before the Collector as well as the Government.Similarly in the present appeal the direction given by the Collector was invalid and the proceedings before the Deputy Superintendent or the Assistant Collector were vitiated. This position obtains in all the appeals although the type and quality of paper are different.The Central Government merely affirmed the order made by the Collector in each case and did not give any independent reasons for upholding the levy of duty made in accordance with the directions of the Collector6. It is unnecessary to deal with other points raised on behalf of the appellant because, in our opinion, these appeals must succeed on the ground that the impugned orders were vitiated for the reasons given and deserve to be set aside. We accordingly quash these orders. The assessing authorities, namely, the Deputy Superintendent or the Assistant Collector shall make fresh assessment of duty in accordance with law and thereafter the question of refund will be decided by the appropriate authorities. | 1 | 1,449 | 438 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
of a letter dated September 7, 1961 the Deputy Superintendent informed the appellant that in accordance with the decision of the competent authority creamwove paper of the weights mentioned in the latter would be assessable as cartridge paper under item 17 (1) of the tariff in the Schedule. It was further stated that "I have also been directed to serve demands for short levy of excise duty on past clearances of creamwove paper, where due." The Deputy Superintendent addressed another letter dated September 13, 1961 to the same effect. It was added therein that map litho paper weighing 85 grams per sq. metre and above was also to be taken as cartridge paper for the purpose of assessment under item 17 (1) as per the decision of the competent authority. On September 19, 1961 the appellant made an inquiry from the Deputy Superintendent as to the basis on which classification in the matter of assessment of duty had been made. The Deputy Superintendent sent the following reply on September 20, 1961 : " ............. I am to inform you that the classifications as intimated to you in respect of the above-mentioned varieties of paper are as per decision of the competent authority". It was further admitted in the letter of the Asstt. Collector Cuttack to the Collector. Central Excise dated April 7, 1962 that the classification of the paper in question was made under item 17 (1) of the tariff as cartridge paper in accordance with instructions contained in the Collectors letter of September 5, 1961. The Deputy Superintendent had made the assessment accordingly. As regards the copy of the Chemical Examiners Report it was stated that the matter had been referred to the higher authorities. 3. The Deputy Superintendent, Central Excise, had collected the excise duty on creamwove paper in accordance with item 17(1) of the tariff for the months of June and July 1962. The appellant lodged a claim with the Assistant Collector of Central Excise for refund of Rs. 38,809.81 being the sum assessed in excess. The Assistant Collector rejected the claim on the ground that no overcharge had been made. The appellant then appealed under S. 35 of the Act to the Collector of Central Excise and Customs which was rejected by him. The Central Government was thereafter approached under S. 36 on the revisional side. The revision petition was dismissed by an order made in the following terms : "The Government of India have carefully considered all the points made by the applicants, but they regret that they do not find any justification for interfering with the Order-in-Appeal, which in correct in law and based on facts. The revision petition is accordingly rejected." 4. Now it is common ground, it being admitted in the statement of case filed on behalf of the respondent that the paper was assessed to duty in accordance with the instructions from the Collector.The main question is whether an assessment made by a subordinate officer in accordance with the instructions issued by the Collector to whom an appeal lay against the order of that subordinate officer can be called a valid assessment in the eye of law.As has been pointed out in Orient Paper Mills Ltd., v. Union of India, (1969) I SCR 245 = (AIR 1969 SC 48 ) in which the parties were the same as before us now no authority, however high, can control the decision of a judicial or a quasi-judicial authority that being the essence of our judicial system.In the present case, when the assessment is to be made by the Deputy Superintendent or the Assistant Collector, the Collector, to whom an appeal lies against his order of assessment, cannot control or fetter his judgment in the matter of assessment. If the Collector issues directions by which the Deputy Superintendent or the Assistant Collector is bound no room is left for the exercise of his own independent judgment. 5. According to the learned Attorney General the assessment proceedings are not of a quasi-judicial nature nor is the assessing authority a quasi-judicial authority. We are unable to agree.It is apparent from the judgment referred to above and numerous other decisions of this court delivered in respect of various taxation laws that the assessing authorities exercise quasi-judicial functions and they have duty cast on them to act in a judicial and independent manner. If their judgment is controlled by the directions given by the Collector it cannot be said to be their independent judgment in any sense of the word. An appeal then to the Collector becomes an empty formality.In the previous decision of this court mentioned above the appeal and the revision had been rejected by the Collector and the Central Government on the ground that a direction had been issued by the Central Board of Revenue to the effect that the paper in question be treated as belonging to a particular classification. This court entertained no doubt that the direction given by the Board was invalid and it vitiated the proceedings before the Collector as well as the Government.Similarly in the present appeal the direction given by the Collector was invalid and the proceedings before the Deputy Superintendent or the Assistant Collector were vitiated. This position obtains in all the appeals although the type and quality of paper are different.The Central Government merely affirmed the order made by the Collector in each case and did not give any independent reasons for upholding the levy of duty made in accordance with the directions of the Collector. 6. It is unnecessary to deal with other points raised on behalf of the appellant because, in our opinion, these appeals must succeed on the ground that the impugned orders were vitiated for the reasons given and deserve to be set aside. We accordingly quash these orders. The assessing authorities, namely, the Deputy Superintendent or the Assistant Collector shall make fresh assessment of duty in accordance with law and thereafter the question of refund will be decided by the appropriate authorities.
### Response:
1
### Explanation:
In the present case, when the assessment is to be made by the Deputy Superintendent or the Assistant Collector, the Collector, to whom an appeal lies against his order of assessment, cannot control or fetter his judgment in the matter of assessment. If the Collector issues directions by which the Deputy Superintendent or the Assistant Collector is bound no room is left for the exercise of his own independent judgment5. According to the learned Attorney General the assessment proceedings are not of al nature nor is the assessing authority al authority. We are unable to agree.It is apparent from the judgment referred to above and numerous other decisions of this court delivered in respect of various taxation laws that the assessing authorities exercisel functions and they have duty cast on them to act in a judicial and independent manner. If their judgment is controlled by the directions given by the Collector it cannot be said to be their independent judgment in any sense of the word. An appeal then to the Collector becomes an empty formality.In the previous decision of this court mentioned above the appeal and the revision had been rejected by the Collector and the Central Government on the ground that a direction had been issued by the Central Board of Revenue to the effect that the paper in question be treated as belonging to a particular classification. This court entertained no doubt that the direction given by the Board was invalid and it vitiated the proceedings before the Collector as well as the Government.Similarly in the present appeal the direction given by the Collector was invalid and the proceedings before the Deputy Superintendent or the Assistant Collector were vitiated. This position obtains in all the appeals although the type and quality of paper are different.The Central Government merely affirmed the order made by the Collector in each case and did not give any independent reasons for upholding the levy of duty made in accordance with the directions of the Collector6. It is unnecessary to deal with other points raised on behalf of the appellant because, in our opinion, these appeals must succeed on the ground that the impugned orders were vitiated for the reasons given and deserve to be set aside. We accordingly quash these orders. The assessing authorities, namely, the Deputy Superintendent or the Assistant Collector shall make fresh assessment of duty in accordance with law and thereafter the question of refund will be decided by the appropriate authorities.
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