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Uttar Pradesh State Road Transport Corp Vs. Kulsum | to cover the liability arising out of such an accident. 13. ...This meant that once the insurer had issued a certificate of insurance in accordance with sub-section (4) of Section 95 of the Act the insurer had to satisfy any decree which a person receiving injuries from the use of the vehicle insured had obtained against any person insured by the policy. He was liable to satisfy the decree when he had been served with a notice under sub- section (2) of Section 96 of the Act about the proceedings in which the judgment was delivered. 14. ...Any other view will expose innocent third parties to go without compensation when they suffer injury on account of such motor accidents and will defeat the very object of introducing the necessity for taking out insurance policy under the Act. 40. In a recent judgment of this Court, in the case of United India Insurance Company Limited v. Santro Devi and Ors. (2009) 1 SCC 558 it has been held as under :- 16.The provisions of compulsory insurance have been framed to advance a social object. It is in a way part of the social justice doctrine. When a certificate of insurance is issued, in law, the insurance company is bound to reimburse the owner. There cannot be any doubt whatsoever that a contract of insurance must fulfil the statutory requirements of formation of a valid contract but in case of a third- party risk, the question has to be considered from a different angle. 17. Section 146 provides for statutory insurance. An insurance is mandatorily required to be obtained by the person in charge of or in possession of the vehicle. There is no provision in the Motor Vehicles Act that unless the name(s) of the heirs of the owner of a vehicle is/are substituted on the certificate of insurance or in the certificate of registration in place of the original owner (since deceased), the motor vehicle cannot be allowed to be used in a public place. Thus, in a case where the owner of a motor vehicle has expired, although there does not exist any statutory interdict for the person in possession of the vehicle to ply the same on road; but there being a statutory injunction that the same cannot be plied unless a policy of insurance is obtained, we are of the opinion that the contract of insurance would be enforceable. It would be so in a case of this nature as for the purpose of renewal of insurance policy only the premium is to be paid. It is not in dispute that quantum of premium paid for renewal of the policy is in terms of the provisions of the Insurance Act, 1938. 41. Perusal of the ratio of aforesaid judgments of this Court, shows that Section 146 of the Act gives complete protection to Third Party in respect of death or bodily injury or damage to the property while using the vehicle in public place. For that purpose, insurance of the vehicle has been made compulsory to the vehicles or to the owners. This would further reflect that compulsory insurance is obviously for the benefit of Third Parties. 42. Certificate of Insurance, between the owner and the Insurance Company contemplates, under what circumstances Insurance Company would be liable to pay the amount of compensation. The relevant conditions are reproduced hereinbelow : Rules with respect to use of the Vehicle Use only for carriage of passengers in accordance with permit (contract carriage or stage carriage) issued within the meaning of the Motor Vehicles Act, 1988. This policy does not cover: 1. Use for organised racing pace making reliability trial speed testing. 2. Use whilst drawing a trailer except the towing (other than to reward) of any one disabled mechanically propellor vehicle. Persons who are qualified to use the Vehicle: Any person including the insured provided that person driving holds an effective driving licence at the time of the accident and is not disqualified from holding or obtaining such licence. Provided also that a person holding an effective learners licence may also drive the vehicle when non used for transport of passenger at the time of the accident and such a person satisfies the requirement of rule No. 3 of this Central Motor Vehicle Rule, 1989. 43. Perusal thereof would show that there has not been any violation of the aforesaid terms and conditions of the policy. Respondent-Insurance Company has also failed to point out violation of any Act, Rules or conditions of the Insurance. Insurance Company has no legal justification to deny the payment of compensation to the claimants. 44. In the light of the foregoing discussions, the Appeal filed by Insurance Company fails, wherein it has been directed that the amount would first be paid by the Company, with right to it to recover the same from owner of the vehicle. This we hold so, as the liability of the Insurance Company is exclusive and absolute. 45. Thus, looking to the matter from every angle, we are of the considered opinion that Insurance Company cannot escape its liability of payment of compensation to Third Parties or claimants. Admittedly, owner of the vehicle has not violated any of the terms and conditions of the policy or provisions of the Act. The owner had taken the insurance so as to meet such type of liability which may arise on account of use of the vehicle. 46. Apart from the above, learned counsel for Insurance Company could not point out any legal embargo which may give right to it to deny the payment of compensation. Thus, legally or otherwise liability has to be fastened on the Insurance Company only. 47. In the light of the aforesaid discussion, the Appeals of the Corporation are allowed. The impugned judgment and order passed by High Court qua the Corporation are hereby set aside and quashed and we hold that the Insurance Company would be liable to pay the amount of compensation to the claimants. | 1[ds]Critical examination thereof would show that the Appellant and the owner had specifically agreed that the vehicle will be insured and a driver would be provided by owner of the vehicle but overall control, not only on the vehicle but also on the driver, would be that of the Corporation. Thus, the vehicle was given on hire by the owner of the vehicle together with its existing and running insurance policy. In view of the aforesaid terms and conditions, the Insurance Company cannot escape its liability to pay the amount of compensation. There is no denial of the fact by the insurance company that at the relevant point of time the vehicle in question was insured with it and the policy was very much in force and in existence. It is also not the case of the insurance company that the driver of the vehicle was not holding a valid driving licence to drive the vehicle. The Tribunal has also held that the driver had a valid driving licence at the time of accident. It has also not been contended by it that there has been violation of the terms and conditions of the policy or that the driver was not entitled to drive the said vehicle30. During the course of hearing, we had asked the following pertinent questions to Mr. Kishore Rawat, learned counsel for the Insurance Company:i) Since the Insurance Company had admittedly received the amount of premium for the period when the mini bus had met with the accident then why should it not be made liable to make the payment of compensation? According to him, in normal circumstances, if the said vehicle would not have been attached with the Corporation for being plied by it on the route of permit granted to it, then of course, the Insurance Company would have no option but to make the paymentii) We had also enquired if there exists different tariffs of premium for the vehicle insured at the instance of owner or for the vehicle which is being attached with the Corporation for being plied by it. He categorically admitted that there is no such difference in the tariff in either of the aforesaid situation and it is same for bothiii) We further enquired from him that if an intimation would have been given to the Insurance Company that the vehicle is being attached with the Corporation then what would have been the position? He again informed us that in that case, the Insurance Company would have met the liability of compensation, in case of an accident(iv) Lastly, we enquired from him as to under which provision of the Act or the Rule, any statutory duty or otherwise is cast on the owner to seek permission or give an intimation to the Insurance Company in case the vehicle is attached with the Corporation for being plied by it? He candidly conceded that there is neither any statutory duty cast on the owner under the Act or under any Rules to seek permission from the Insurance Company nor it is under any of the orders issued by the CompanyAccording to him, it would have been desirable for the insured to have informed about such a contract31. Thus, in the light of the aforesaid, it is clear that Insurance Company is trying to evade its liability on flimsy grounds or under misconception of lawThe liability to pay compensation is based on a statutory provision. Compulsory Insurance of the vehicle is meant for the benefit of the Third Parties. The liability of the owner to have compulsory insurance is only in regard to Third Party and not to the property. Once the vehicle is insured, the owner as well as any other person can use the vehicle with the consent of the owner. Section 146 of the Act does not provide that any person who uses the vehicle independently, a separate Insurance Policy should be taken. The purpose of compulsory insurance in the Act has been enacted with an object to advance social justicePerusal thereof would show that there has not been any violation of the aforesaid terms and conditions of the policy. Respondent-Insurance Company has also failed to point out violation of any Act, Rules or conditions of the Insurance. Insurance Company has no legal justification to deny the payment of compensation to the claimants44. In the light of the foregoing discussions, the Appeal filed by Insurance Company fails, wherein it has been directed that the amount would first be paid by the Company, with right to it to recover the same from owner of the vehicle. This we hold so, as the liability of the Insurance Company is exclusive and absolute45. Thus, looking to the matter from every angle, we are of the considered opinion that Insurance Company cannot escape its liability of payment of compensation to Third Parties or claimants. Admittedly, owner of the vehicle has not violated any of the terms and conditions of the policy or provisions of the Act. The owner had taken the insurance so as to meet such type of liability which may arise on account of use of the vehicleApart from the above, learned counsel for Insurance Company could not point out any legal embargo which may give right to it to deny the payment of compensation. Thus, legally or otherwise liability has to be fastened on the Insurance Company only47. In the light of the aforesaid discussion, the Appeals of the Corporation are allowed. The impugned judgment and order passed by High Court qua the Corporation are hereby set aside and quashed and we hold that the Insurance Company would be liable to pay the amount of compensation to the claimants | 1 | 5,936 | 1,020 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
to cover the liability arising out of such an accident. 13. ...This meant that once the insurer had issued a certificate of insurance in accordance with sub-section (4) of Section 95 of the Act the insurer had to satisfy any decree which a person receiving injuries from the use of the vehicle insured had obtained against any person insured by the policy. He was liable to satisfy the decree when he had been served with a notice under sub- section (2) of Section 96 of the Act about the proceedings in which the judgment was delivered. 14. ...Any other view will expose innocent third parties to go without compensation when they suffer injury on account of such motor accidents and will defeat the very object of introducing the necessity for taking out insurance policy under the Act. 40. In a recent judgment of this Court, in the case of United India Insurance Company Limited v. Santro Devi and Ors. (2009) 1 SCC 558 it has been held as under :- 16.The provisions of compulsory insurance have been framed to advance a social object. It is in a way part of the social justice doctrine. When a certificate of insurance is issued, in law, the insurance company is bound to reimburse the owner. There cannot be any doubt whatsoever that a contract of insurance must fulfil the statutory requirements of formation of a valid contract but in case of a third- party risk, the question has to be considered from a different angle. 17. Section 146 provides for statutory insurance. An insurance is mandatorily required to be obtained by the person in charge of or in possession of the vehicle. There is no provision in the Motor Vehicles Act that unless the name(s) of the heirs of the owner of a vehicle is/are substituted on the certificate of insurance or in the certificate of registration in place of the original owner (since deceased), the motor vehicle cannot be allowed to be used in a public place. Thus, in a case where the owner of a motor vehicle has expired, although there does not exist any statutory interdict for the person in possession of the vehicle to ply the same on road; but there being a statutory injunction that the same cannot be plied unless a policy of insurance is obtained, we are of the opinion that the contract of insurance would be enforceable. It would be so in a case of this nature as for the purpose of renewal of insurance policy only the premium is to be paid. It is not in dispute that quantum of premium paid for renewal of the policy is in terms of the provisions of the Insurance Act, 1938. 41. Perusal of the ratio of aforesaid judgments of this Court, shows that Section 146 of the Act gives complete protection to Third Party in respect of death or bodily injury or damage to the property while using the vehicle in public place. For that purpose, insurance of the vehicle has been made compulsory to the vehicles or to the owners. This would further reflect that compulsory insurance is obviously for the benefit of Third Parties. 42. Certificate of Insurance, between the owner and the Insurance Company contemplates, under what circumstances Insurance Company would be liable to pay the amount of compensation. The relevant conditions are reproduced hereinbelow : Rules with respect to use of the Vehicle Use only for carriage of passengers in accordance with permit (contract carriage or stage carriage) issued within the meaning of the Motor Vehicles Act, 1988. This policy does not cover: 1. Use for organised racing pace making reliability trial speed testing. 2. Use whilst drawing a trailer except the towing (other than to reward) of any one disabled mechanically propellor vehicle. Persons who are qualified to use the Vehicle: Any person including the insured provided that person driving holds an effective driving licence at the time of the accident and is not disqualified from holding or obtaining such licence. Provided also that a person holding an effective learners licence may also drive the vehicle when non used for transport of passenger at the time of the accident and such a person satisfies the requirement of rule No. 3 of this Central Motor Vehicle Rule, 1989. 43. Perusal thereof would show that there has not been any violation of the aforesaid terms and conditions of the policy. Respondent-Insurance Company has also failed to point out violation of any Act, Rules or conditions of the Insurance. Insurance Company has no legal justification to deny the payment of compensation to the claimants. 44. In the light of the foregoing discussions, the Appeal filed by Insurance Company fails, wherein it has been directed that the amount would first be paid by the Company, with right to it to recover the same from owner of the vehicle. This we hold so, as the liability of the Insurance Company is exclusive and absolute. 45. Thus, looking to the matter from every angle, we are of the considered opinion that Insurance Company cannot escape its liability of payment of compensation to Third Parties or claimants. Admittedly, owner of the vehicle has not violated any of the terms and conditions of the policy or provisions of the Act. The owner had taken the insurance so as to meet such type of liability which may arise on account of use of the vehicle. 46. Apart from the above, learned counsel for Insurance Company could not point out any legal embargo which may give right to it to deny the payment of compensation. Thus, legally or otherwise liability has to be fastened on the Insurance Company only. 47. In the light of the aforesaid discussion, the Appeals of the Corporation are allowed. The impugned judgment and order passed by High Court qua the Corporation are hereby set aside and quashed and we hold that the Insurance Company would be liable to pay the amount of compensation to the claimants.
### Response:
1
### Explanation:
Critical examination thereof would show that the Appellant and the owner had specifically agreed that the vehicle will be insured and a driver would be provided by owner of the vehicle but overall control, not only on the vehicle but also on the driver, would be that of the Corporation. Thus, the vehicle was given on hire by the owner of the vehicle together with its existing and running insurance policy. In view of the aforesaid terms and conditions, the Insurance Company cannot escape its liability to pay the amount of compensation. There is no denial of the fact by the insurance company that at the relevant point of time the vehicle in question was insured with it and the policy was very much in force and in existence. It is also not the case of the insurance company that the driver of the vehicle was not holding a valid driving licence to drive the vehicle. The Tribunal has also held that the driver had a valid driving licence at the time of accident. It has also not been contended by it that there has been violation of the terms and conditions of the policy or that the driver was not entitled to drive the said vehicle30. During the course of hearing, we had asked the following pertinent questions to Mr. Kishore Rawat, learned counsel for the Insurance Company:i) Since the Insurance Company had admittedly received the amount of premium for the period when the mini bus had met with the accident then why should it not be made liable to make the payment of compensation? According to him, in normal circumstances, if the said vehicle would not have been attached with the Corporation for being plied by it on the route of permit granted to it, then of course, the Insurance Company would have no option but to make the paymentii) We had also enquired if there exists different tariffs of premium for the vehicle insured at the instance of owner or for the vehicle which is being attached with the Corporation for being plied by it. He categorically admitted that there is no such difference in the tariff in either of the aforesaid situation and it is same for bothiii) We further enquired from him that if an intimation would have been given to the Insurance Company that the vehicle is being attached with the Corporation then what would have been the position? He again informed us that in that case, the Insurance Company would have met the liability of compensation, in case of an accident(iv) Lastly, we enquired from him as to under which provision of the Act or the Rule, any statutory duty or otherwise is cast on the owner to seek permission or give an intimation to the Insurance Company in case the vehicle is attached with the Corporation for being plied by it? He candidly conceded that there is neither any statutory duty cast on the owner under the Act or under any Rules to seek permission from the Insurance Company nor it is under any of the orders issued by the CompanyAccording to him, it would have been desirable for the insured to have informed about such a contract31. Thus, in the light of the aforesaid, it is clear that Insurance Company is trying to evade its liability on flimsy grounds or under misconception of lawThe liability to pay compensation is based on a statutory provision. Compulsory Insurance of the vehicle is meant for the benefit of the Third Parties. The liability of the owner to have compulsory insurance is only in regard to Third Party and not to the property. Once the vehicle is insured, the owner as well as any other person can use the vehicle with the consent of the owner. Section 146 of the Act does not provide that any person who uses the vehicle independently, a separate Insurance Policy should be taken. The purpose of compulsory insurance in the Act has been enacted with an object to advance social justicePerusal thereof would show that there has not been any violation of the aforesaid terms and conditions of the policy. Respondent-Insurance Company has also failed to point out violation of any Act, Rules or conditions of the Insurance. Insurance Company has no legal justification to deny the payment of compensation to the claimants44. In the light of the foregoing discussions, the Appeal filed by Insurance Company fails, wherein it has been directed that the amount would first be paid by the Company, with right to it to recover the same from owner of the vehicle. This we hold so, as the liability of the Insurance Company is exclusive and absolute45. Thus, looking to the matter from every angle, we are of the considered opinion that Insurance Company cannot escape its liability of payment of compensation to Third Parties or claimants. Admittedly, owner of the vehicle has not violated any of the terms and conditions of the policy or provisions of the Act. The owner had taken the insurance so as to meet such type of liability which may arise on account of use of the vehicleApart from the above, learned counsel for Insurance Company could not point out any legal embargo which may give right to it to deny the payment of compensation. Thus, legally or otherwise liability has to be fastened on the Insurance Company only47. In the light of the aforesaid discussion, the Appeals of the Corporation are allowed. The impugned judgment and order passed by High Court qua the Corporation are hereby set aside and quashed and we hold that the Insurance Company would be liable to pay the amount of compensation to the claimants
|
Swadesamitran Limited, Madras Vs. Their Workmen | the preferential treatment given to juniors ignores the well recognised principles of industrial law of first come last go without any acceptable or sound reasoning a tribunal or an adjudicator will be well justified to hold that the action of the management is not bona fide. We do not see how either of the two propositions set out in this judgment can support the appellants argument before us. The position under the industrial law seems to us to be fairly clear.The management has the right to retrench the workmen provided retrenchment is justified. In effecting retrenchment the management normally has to adopt and give effect to the industrial rule of retrenchment. For valid reasons it may depart from the said rule. If the departure from the said rule does not appear to the industrial tribunal as valid or satisfactory, then the action of the management in so departing from the rule can be treated by the tribunal as being mala fide or as amounting to unfair labour practice; in other words, departure from the ordinary industrial rule of retrenchment without any justification may itself, in a proper case, lead to the inference that the impugned retrenchment is the result of ulterior considerations and as such it is mala fide and amounts to unfair labour practice and victimisation. That is precisely what this Court has held in the case of J. K. Iron and Steel Co. Ltd. C. A. No. 266 of 1958, D/- 11-2-1960. We are, therefore, satisfied that there is no substance in the appellants contention that the tribunals below have exceeded their jurisdiction in enquiring into the validity of the retrenchment of the 39 workmen in question.12. There is one more point which may briefly be mentioned in this connection. After the matter was remanded the industrial tribunal has carefully considered the evidence given by the appellant. In fact it is clear from the record that at the original enquiry no evidence has been led by the appellant to justify the departure from the rule even though it was conceded that the rule had not been followed. The Labour Appellate Tribunal, therefore, fairly gave a chance to the appellant to justified the said departure, and accordingly evidence was led by the appellant. This evidence consists of the testimony of Mr. Lakshminarasimhan, who has been working with the appellant for 32 years. He works as an Assistant Editor, and in addition attends to press work. He stated that he was having a personal supervision of the entire work and that when retrenchment was actually effected a committee was appointed consisting of himself, the Manager Mr. Ayyangar and the Press Manager Mr. Rajagopala Ayyangar. At the time of the enquiry the Manager was dead. According to the witness the committee took the advice of the Foremen of various sections in deciding which workmen should be retained and which should be retrenched. The witness gave evidence about the defects in the cases of the 39 workmen who were retrenched; and in support of his oral testimony he filed two statements T-1 and T-2 giving material particulars in respect of all the said workmen. It is admitted that no records were made at the time when the cases of these workmen were examined, and so the witness was driven to give evidence merely from memory. The tribunal has held that having regard to the nature of the defects attributed to the several workmen to which the witness deposed it was impossible to accept his testimony as satisfactory, and the tribunal was also not satisfied that it was likely that the witness should have any personal knowledge in regard to the said defects. In the result the tribunal rejected this testimony. It also examined some cases in detail, and it was satisfied that the reasons given for retrenching them were demonstrably unsatisfactory. It is on these findings that the tribunal came to the conclusion that the appellant had not shown any valid or reasonable ground for departing from the usual rule, and this finding has been accepted by the Labour Appellate Tribunal. In such a case we do not see how in the present appeal the appellant can successfully challenge the correctness of the conclusion that in substance the retrenchment of the 15 workmen amounts to an unfair labour practice and victimisation.13. That leaves two minor questions which were formulated for our decision by the learned Attorney-General. He contended that, even if the impugned retrenchment of the 15 workmen in question was not justified, reinstatement should not have been directed; some compensation instead should have been ordered; and in the alternative he argued that the order directing compensation to the remaining 24 retrenched workmen was also not justified. We do not see any substance in either of these two contentions. Once it is found that retrenchment is unjustified and improper it is for the tribunals below to consider to what relief the retrenched workmen are entitled. Ordinarily, if a workman has been improperly and illegally retrenched he is entitled to claim reinstatement. The fact that in the meanwhile the employer has engaged other workmen would not necessarily defeat the claim for reinstatement of the retrenched workmen; nor can the fact that protracted litigation in regard to the dispute has inevitably meant delay, defeat such a claim for reinstatement. This court has consistently held that in the case of wrongful dismissal, discharge or retrenchment, a claim for reinstatement cannot be defeated merely because time has lapsed or that the employer has engaged fresh hands (Vide : The Punjab National Bank Ltd. v. The All-India Punjab National Bank Employees Federation, Civil Appeals Nos. 519 to 521 of 1958, D/- 24-9-1959 : (AIR 1960 SC 160 ); and National Transport and General Co. Ltd. v. The Workmen, Civil Appeal No. 312 of 1956, D/- 22-1-1957). Then as to the compensation awarded to the 15 and 24 workmen respectively, it is a matter of discretion and as such is not open to challenge in the present appeal. | 0[ds]It is in regard to this aspect of the matter that the appellants bona fides have no doubt been found; but the bona fides of the appellant in coming to the conclusion that 39 workmen had to be retrenched have no material bearing nor have they and relevance in fact with the question as to whether the appellant acted fairly or reasonably in selecting for retrenchment the 39 workmen in question. It is in regard to this latter aspect of the matter that concurrent findings have been recorded against the appellant that it acted without justification and the retrenchment of the 15 workmen in question amounts to an unfair labour practice.Therefore, it is not possible to accept the argument that there is any inconsistency in the two findings. They deal with two different aspects of the matter and so they cannot be said to conflict with each other atought to add that the same principle has now been statutorily recognised by S. 25-G of the Act.This section provides inter alia that where any workmen in an industrial establishment, who is a citizen of India, is to be retrenched, the employer shall ordinarily retrench the workmen who was the last person to be employed in the same category, unless for reasons to be recorded, the employer retrenches any other workman; in other words, by this section a statutory obligation is imposed on the employer to follow the rule, and if he wants to depart from it to record his reason for the saidwith the argument of the appellant that the order of retrenchment, should be left to the management and that the decision by the management that some employees are better qualified than others should not be questioned by the adjudicator unless he came to the conclusion that the preferential treatment was deemed to be mala fide, this Court observed that the proposition involved in the argument was unexceptionable, but it was added that, if the preferential treatment given to juniors ignores the well recognised principles of industrial law of first come last go without any acceptable or sound reasoning a tribunal or an adjudicator will be well justified to hold that the action of the management is not bona fide. We do not see how either of the two propositions set out in this judgment can support the appellants argument before us. The position under the industrial law seems to us to be fairly clear.The management has the right to retrench the workmen provided retrenchment is justified. In effecting retrenchment the management normally has to adopt and give effect to the industrial rule of retrenchment. For valid reasons it may depart from the said rule. If the departure from the said rule does not appear to the industrial tribunal as valid or satisfactory, then the action of the management in so departing from the rule can be treated by the tribunal as being mala fide or as amounting to unfair labour practice; in other words, departure from the ordinary industrial rule of retrenchment without any justification may itself, in a proper case, lead to the inference that the impugned retrenchment is the result of ulterior considerations and as such it is mala fide and amounts to unfair labour practice and victimisation. That is precisely what this Court has held in the case of J. K. Iron and Steel Co. Ltd. C. A. No. 266 of 1958, D/- 11-2-1960. We are, therefore, satisfied that there is no substance in the appellants contention that the tribunals below have exceeded their jurisdiction in enquiring into the validity of the retrenchment of the 39 workmen insuch a case we do not see how in the present appeal the appellant can successfully challenge the correctness of the conclusion that in substance the retrenchment of the 15 workmen amounts to an unfair labour practice anddo not see any substance in either of these two contentions. Once it is found that retrenchment is unjustified and improper it is for the tribunals below to consider to what relief the retrenched workmen are entitled. Ordinarily, if a workman has been improperly and illegally retrenched he is entitled to claim reinstatement. The fact that in the meanwhile the employer has engaged other workmen would not necessarily defeat the claim for reinstatement of the retrenched workmen; nor can the fact that protracted litigation in regard to the dispute has inevitably meant delay, defeat such a claim for reinstatement. This court has consistently held that in the case of wrongful dismissal, discharge or retrenchment, a claim for reinstatement cannot be defeated merely because time has lapsed or that the employer has engaged freshas to the compensation awarded to the 15 and 24 workmen respectively, it is a matter of discretion and as such is not open to challenge in the present appeal. | 0 | 3,830 | 850 | ### 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:
the preferential treatment given to juniors ignores the well recognised principles of industrial law of first come last go without any acceptable or sound reasoning a tribunal or an adjudicator will be well justified to hold that the action of the management is not bona fide. We do not see how either of the two propositions set out in this judgment can support the appellants argument before us. The position under the industrial law seems to us to be fairly clear.The management has the right to retrench the workmen provided retrenchment is justified. In effecting retrenchment the management normally has to adopt and give effect to the industrial rule of retrenchment. For valid reasons it may depart from the said rule. If the departure from the said rule does not appear to the industrial tribunal as valid or satisfactory, then the action of the management in so departing from the rule can be treated by the tribunal as being mala fide or as amounting to unfair labour practice; in other words, departure from the ordinary industrial rule of retrenchment without any justification may itself, in a proper case, lead to the inference that the impugned retrenchment is the result of ulterior considerations and as such it is mala fide and amounts to unfair labour practice and victimisation. That is precisely what this Court has held in the case of J. K. Iron and Steel Co. Ltd. C. A. No. 266 of 1958, D/- 11-2-1960. We are, therefore, satisfied that there is no substance in the appellants contention that the tribunals below have exceeded their jurisdiction in enquiring into the validity of the retrenchment of the 39 workmen in question.12. There is one more point which may briefly be mentioned in this connection. After the matter was remanded the industrial tribunal has carefully considered the evidence given by the appellant. In fact it is clear from the record that at the original enquiry no evidence has been led by the appellant to justify the departure from the rule even though it was conceded that the rule had not been followed. The Labour Appellate Tribunal, therefore, fairly gave a chance to the appellant to justified the said departure, and accordingly evidence was led by the appellant. This evidence consists of the testimony of Mr. Lakshminarasimhan, who has been working with the appellant for 32 years. He works as an Assistant Editor, and in addition attends to press work. He stated that he was having a personal supervision of the entire work and that when retrenchment was actually effected a committee was appointed consisting of himself, the Manager Mr. Ayyangar and the Press Manager Mr. Rajagopala Ayyangar. At the time of the enquiry the Manager was dead. According to the witness the committee took the advice of the Foremen of various sections in deciding which workmen should be retained and which should be retrenched. The witness gave evidence about the defects in the cases of the 39 workmen who were retrenched; and in support of his oral testimony he filed two statements T-1 and T-2 giving material particulars in respect of all the said workmen. It is admitted that no records were made at the time when the cases of these workmen were examined, and so the witness was driven to give evidence merely from memory. The tribunal has held that having regard to the nature of the defects attributed to the several workmen to which the witness deposed it was impossible to accept his testimony as satisfactory, and the tribunal was also not satisfied that it was likely that the witness should have any personal knowledge in regard to the said defects. In the result the tribunal rejected this testimony. It also examined some cases in detail, and it was satisfied that the reasons given for retrenching them were demonstrably unsatisfactory. It is on these findings that the tribunal came to the conclusion that the appellant had not shown any valid or reasonable ground for departing from the usual rule, and this finding has been accepted by the Labour Appellate Tribunal. In such a case we do not see how in the present appeal the appellant can successfully challenge the correctness of the conclusion that in substance the retrenchment of the 15 workmen amounts to an unfair labour practice and victimisation.13. That leaves two minor questions which were formulated for our decision by the learned Attorney-General. He contended that, even if the impugned retrenchment of the 15 workmen in question was not justified, reinstatement should not have been directed; some compensation instead should have been ordered; and in the alternative he argued that the order directing compensation to the remaining 24 retrenched workmen was also not justified. We do not see any substance in either of these two contentions. Once it is found that retrenchment is unjustified and improper it is for the tribunals below to consider to what relief the retrenched workmen are entitled. Ordinarily, if a workman has been improperly and illegally retrenched he is entitled to claim reinstatement. The fact that in the meanwhile the employer has engaged other workmen would not necessarily defeat the claim for reinstatement of the retrenched workmen; nor can the fact that protracted litigation in regard to the dispute has inevitably meant delay, defeat such a claim for reinstatement. This court has consistently held that in the case of wrongful dismissal, discharge or retrenchment, a claim for reinstatement cannot be defeated merely because time has lapsed or that the employer has engaged fresh hands (Vide : The Punjab National Bank Ltd. v. The All-India Punjab National Bank Employees Federation, Civil Appeals Nos. 519 to 521 of 1958, D/- 24-9-1959 : (AIR 1960 SC 160 ); and National Transport and General Co. Ltd. v. The Workmen, Civil Appeal No. 312 of 1956, D/- 22-1-1957). Then as to the compensation awarded to the 15 and 24 workmen respectively, it is a matter of discretion and as such is not open to challenge in the present appeal.
### Response:
0
### Explanation:
It is in regard to this aspect of the matter that the appellants bona fides have no doubt been found; but the bona fides of the appellant in coming to the conclusion that 39 workmen had to be retrenched have no material bearing nor have they and relevance in fact with the question as to whether the appellant acted fairly or reasonably in selecting for retrenchment the 39 workmen in question. It is in regard to this latter aspect of the matter that concurrent findings have been recorded against the appellant that it acted without justification and the retrenchment of the 15 workmen in question amounts to an unfair labour practice.Therefore, it is not possible to accept the argument that there is any inconsistency in the two findings. They deal with two different aspects of the matter and so they cannot be said to conflict with each other atought to add that the same principle has now been statutorily recognised by S. 25-G of the Act.This section provides inter alia that where any workmen in an industrial establishment, who is a citizen of India, is to be retrenched, the employer shall ordinarily retrench the workmen who was the last person to be employed in the same category, unless for reasons to be recorded, the employer retrenches any other workman; in other words, by this section a statutory obligation is imposed on the employer to follow the rule, and if he wants to depart from it to record his reason for the saidwith the argument of the appellant that the order of retrenchment, should be left to the management and that the decision by the management that some employees are better qualified than others should not be questioned by the adjudicator unless he came to the conclusion that the preferential treatment was deemed to be mala fide, this Court observed that the proposition involved in the argument was unexceptionable, but it was added that, if the preferential treatment given to juniors ignores the well recognised principles of industrial law of first come last go without any acceptable or sound reasoning a tribunal or an adjudicator will be well justified to hold that the action of the management is not bona fide. We do not see how either of the two propositions set out in this judgment can support the appellants argument before us. The position under the industrial law seems to us to be fairly clear.The management has the right to retrench the workmen provided retrenchment is justified. In effecting retrenchment the management normally has to adopt and give effect to the industrial rule of retrenchment. For valid reasons it may depart from the said rule. If the departure from the said rule does not appear to the industrial tribunal as valid or satisfactory, then the action of the management in so departing from the rule can be treated by the tribunal as being mala fide or as amounting to unfair labour practice; in other words, departure from the ordinary industrial rule of retrenchment without any justification may itself, in a proper case, lead to the inference that the impugned retrenchment is the result of ulterior considerations and as such it is mala fide and amounts to unfair labour practice and victimisation. That is precisely what this Court has held in the case of J. K. Iron and Steel Co. Ltd. C. A. No. 266 of 1958, D/- 11-2-1960. We are, therefore, satisfied that there is no substance in the appellants contention that the tribunals below have exceeded their jurisdiction in enquiring into the validity of the retrenchment of the 39 workmen insuch a case we do not see how in the present appeal the appellant can successfully challenge the correctness of the conclusion that in substance the retrenchment of the 15 workmen amounts to an unfair labour practice anddo not see any substance in either of these two contentions. Once it is found that retrenchment is unjustified and improper it is for the tribunals below to consider to what relief the retrenched workmen are entitled. Ordinarily, if a workman has been improperly and illegally retrenched he is entitled to claim reinstatement. The fact that in the meanwhile the employer has engaged other workmen would not necessarily defeat the claim for reinstatement of the retrenched workmen; nor can the fact that protracted litigation in regard to the dispute has inevitably meant delay, defeat such a claim for reinstatement. This court has consistently held that in the case of wrongful dismissal, discharge or retrenchment, a claim for reinstatement cannot be defeated merely because time has lapsed or that the employer has engaged freshas to the compensation awarded to the 15 and 24 workmen respectively, it is a matter of discretion and as such is not open to challenge in the present appeal.
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U.P. STATE ROAD TRANSPORT CORPORATION Vs. RAJENDRI DEVI & ORS | vehicle is in the actual possession and control of the hirer not be proper for the purpose of fastening of liability in case of an accident. The liability of the owner is vicarious for the tort committed by its employee during the course of his employment and it would be a question of fact in each case as to on whom can vicarious liability be fastened in the case of an accident. In this case, Shri Sanjay Kumar, the owner of the bus could not ply the bus on the particular route for which he had no permit and he in fact was not plying the bus on that route. The services of the driver were transferred along with complete control to RSRTC, under whose directions, instructions and command the driver was to ply or not to ply the ill-fated bus on the fateful day. The passengers were being carried by RSRTC on receiving fare from them. Shri Sanjay Kumar was therefore not concerned with the passengers travelling in that bus on the particular route on payment of fare to RSRTC. Driver of the bus, even though an employee of the owner, was at the relevant time performing his duties under the order and command of the conductor of RSRTC for operation of the bus. So far as the passengers of the ill-fated bus are concerned, their privity of contract was only with the RSRTC to whom they had paid the fare for travelling in that bus and their safety therefore became the responsibility of the RSRTC while travelling in the bus. They had no privity of contract with Shri Sanjay Kumar, the owner of the bus at all. Had it been a case only of transfer of services of the driver and not of transfer of control of the driver from the owner to RSRTC, the matter may have been somewhat different. But on facts in this case and in view of Conditions 4 to 7 of the agreement (supra), the RSRTC must be held to be vicariously liable for the tort committed by the driver while plying the bus under contract of the RSRTC. The general proposition of law and the presumption arising therefrom that an employer, that is, the person who has the right to hire and fire the employee, is generally responsible vicariously for the tort committed by the employee concerned during the course of his employment and within the scope of his authority, is a rebuttable presumption. (emphasis in original) xxx xxx xxx 18. In our considered opinion, in the light of the drastic and distinct changes incorporated in the definition of owner in the old Act and the present Act, Kailash Naths case [Rajasthan State Road Transport Corporation v. Kailash Nath Kothari (1997) 7 SCC 481 ] has no application to the facts of this case. We were unable to persuade ourselves with the specific question which arose in this and connected appeals as the question projected in these appeals was neither directly nor substantially in issue, in Kailash Naths case [Rajasthan State Road Transport Corporation v. Kailash Nath Kothari (1997) 7 SCC 481 ]. Thus, reference to the same may not be of much help to us. Admittedly, in the said case, this Court was dealing with regard to earlier definition of owner as found in Section 2(19) of the old Act. Finally, the insurance company was held liable stating: 29. In the instant case, the driver was employed by Ajay Vishen, the owner of the bus but evidently through Clause 4.4 of the agreement, reproduced hereinabove, driver was supposed to drive the bus under the instructions of the conductor who was appointed by the Corporation. The said driver was also bound by all orders of the Corporation. Thus, it can safely be inferred that effective control and command of the bus was that of the Appellant. 30. Thus, for all practical purposes, for the relevant period, the Corporation had become the owner of the vehicle for the specific period. If the Corporation had become the owner even for the specific period and the vehicle having been insured at the instance of original owner, it will be deemed that the vehicle was transferred along with the insurance policy in existence to the Corporation and thus the Insurance Company would not be able to escape its liability to pay the amount of compensation. 31. The liability to pay compensation is based on a statutory provision. Compulsory insurance of the vehicle is meant for the benefit of the third parties. The liability of the owner to have compulsory insurance is only in regard to third party and not to the property. Once the vehicle is insured, the owner as well as any other person can use the vehicle with the consent of the owner. Section 146 of the Act does not provide that any person who uses the vehicle independently, a separate insurance policy should be taken. The purpose of compulsory insurance in the Act has been enacted with an object to advance social justice. 6. The law laid down in Kulsums case (supra) squarely applies to the facts of the present case. Also, the argument based on Clause 10, which states as follows, CLAUSE 10: The second party (Bus owner) shall have full liability for any fault, negligence, accident, or other illegal acts of the driver and liability for payment of any compensation or other dues whatsoever in this regard shall be that of the owner of the bus or Insurance Company under the Acts. In no case, the First party (Petitioner Corporation) shall have any liability for fault, negligence, accident, or other illegal acts of the driver. In case any payment is made by the First Party in compliance of any order of any Court, etc., the First Party shall be authorized to recover the same. is only between the Corporation and the bus owner and does not bind anybody who is not privy to the aforesaid agreement, least of all, the victim. | 1[ds]4. Having heard learned Counsel appearing for all the parties, we are of the view that the judgment relied upon, viz., Kailash Nath Kothari (supra), is itself distinguishable for the reason that the judgment itself records as follows:3.... The insurance company took the plea, in its reply to the claim petitions, that the bus at the time of the accident was under the control of the RSRTC, therefore, it was the liability of the RSRTC to pay compensation and the insurance company was not liable. It was further pleaded by the insurance company that the liability of the insurance company, in any event, was limited and its liability could not exceed Rs. 75,000/- in respect of all the claim petitions arising out of one accident....4.... Issue No. 2 was also decided in favour of the claim Petitioners but it was held that in the light of the terms of the policy of insurance and relevant provisions of the Act, the liability of the insurance company was limited, in respect of the accident, to a total amount of Rs. 75,000/- only.xxx xxx xxx7.... Learned Counsel appearing for the insurance company, did not question the finding on Issue No. 2 and submitted that the specified amount had since been paid by the insurance company....In addition to this, the Court also held, relying upon the definition of owner in Section 2(19) of the Motor Vehicles Act (as it then stood), as follows:17. The definition of owner Under Section 2(19) of the Act is not exhaustive. It has, therefore, to be construed, in a wider sense, in the facts and circumstances of a given case. The expression owner must include, in a given case, the person who has the actual possession and control of the vehicle and under whose directions and commands the driver is obliged to operate the bus. To confine the meaning of owner to the registered owner only would in a case where the vehicle is in the actual possession and control of the hirer not be proper for the purpose of fastening of liability in case of an accident. The liability of the owner is vicarious for the tort committed by its employee during the course of his employment and it would be a question of fact in each case as to on whom can vicarious liability be fastened in the case of an accident....(emphasis in original)In this view of the matter, it was therefore held that since the insurance companys liability was limited only to Rs. 75,000/- which had been paid, the insurance company would, on the facts of that case, not be liable to pay anything more. On this count, therefore, the amount payable beyond Rs. 75,000/- was mulcted on to the Corporation in that case.5. In a subsequent judgment, viz., Uttar Pradesh State Road Transport Corporation v. Kulsum and Ors.(2011) 8 SCC 142 [Kulsum], this Court stated the question of law that arose for consideration as follows:3. The question of law that arises for consideration in the instant and connected appeals is formulated as under: if an insured vehicle (in this case a mini bus) is plying under an agreement of contract with the Corporation, on the route as per permit granted in favour of the Corporation, in case of an accident, whether the Insurance Company would be liable to pay compensation or would it be the responsibility of the Corporation or the owner?It then referred to the definition of owner Under Section 2(30) of the Motor Vehicles Act, 1988 and contrasted it with the definition of owner in Section 2(19) of the 1939 Act.It then went on to distinguish Kailash Nath Kothari (supra) as follows:16. In Kailash Nath Kothari [Rajasthan State Road Transport Corporation v. Kailash Nath Kothari(1997) 7 SCC 481 ], a question had arisen with regard to the liability of the insurance company, where the bus plied as per the contract with Rajasthan State Road Transport Corporation. However, the said case was dealing with the earlier Motor Vehicles Act of 1939. Taking into consideration the definition of owner as it existed then in Section 2(19) of the old Act, it has been held in para 17 as under: (SCC pp. 487-88)17. The definition of owner Under Section 2(19) of the Act is not exhaustive. It has, therefore to be construed, in a wider sense, in the facts and circumstances of a given case. The expression owner must include, in a given case, the person who has the actual possession and control of the vehicle and under whose directions and commands the driver is obliged to operate the bus. To confine the meaning of owner to the registered owner only would in a case where the vehicle is in the actual possession and control of the hirer not be proper for the purpose of fastening of liability in case of an accident. The liability of the owner is vicarious for the tort committed by its employee during the course of his employment and it would be a question of fact in each case as to on whom can vicarious liability be fastened in the case of an accident. In this case, Shri Sanjay Kumar, the owner of the bus could not ply the bus on the particular route for which he had no permit and he in fact was not plying the bus on that route. The services of the driver were transferred along with complete control to RSRTC, under whose directions, instructions and command the driver was to ply or not to ply the ill-fated bus on the fateful day. The passengers were being carried by RSRTC on receiving fare from them. Shri Sanjay Kumar was therefore not concerned with the passengers travelling in that bus on the particular route on payment of fare to RSRTC. Driver of the bus, even though an employee of the owner, was at the relevant time performing his duties under the order and command of the conductor of RSRTC for operation of the bus. So far as the passengers of the ill-fated bus are concerned, their privity of contract was only with the RSRTC to whom they had paid the fare for travelling in that bus and their safety therefore became the responsibility of the RSRTC while travelling in the bus. They had no privity of contract with Shri Sanjay Kumar, the owner of the bus at all. Had it been a case only of transfer of services of the driver and not of transfer of control of the driver from the owner to RSRTC, the matter may have been somewhat different. But on facts in this case and in view of Conditions 4 to 7 of the agreement (supra), the RSRTC must be held to be vicariously liable for the tort committed by the driver while plying the bus under contract of the RSRTC. The general proposition of law and the presumption arising therefrom that an employer, that is, the person who has the right to hire and fire the employee, is generally responsible vicariously for the tort committed by the employee concerned during the course of his employment and within the scope of his authority, is a rebuttable presumption.(emphasis in original)xxx xxx xxx18. In our considered opinion, in the light of the drastic and distinct changes incorporated in the definition of owner in the old Act and the present Act, Kailash Naths case [Rajasthan State Road Transport Corporation v. Kailash Nath Kothari(1997) 7 SCC 481 ] has no application to the facts of this case. We were unable to persuade ourselves with the specific question which arose in this and connected appeals as the question projected in these appeals was neither directly nor substantially in issue, in Kailash Naths case [Rajasthan State Road Transport Corporation v. Kailash Nath Kothari(1997) 7 SCC 481 ]. Thus, reference to the same may not be of much help to us. Admittedly, in the said case, this Court was dealing with regard to earlier definition of owner as found in Section 2(19) of the old Act.Finally, the insurance company was held liable stating:29. In the instant case, the driver was employed by Ajay Vishen, the owner of the bus but evidently through Clause 4.4 of the agreement, reproduced hereinabove, driver was supposed to drive the bus under the instructions of the conductor who was appointed by the Corporation. The said driver was also bound by all orders of the Corporation. Thus, it can safely be inferred that effective control and command of the bus was that of the Appellant.30. Thus, for all practical purposes, for the relevant period, the Corporation had become the owner of the vehicle for the specific period. If the Corporation had become the owner even for the specific period and the vehicle having been insured at the instance of original owner, it will be deemed that the vehicle was transferred along with the insurance policy in existence to the Corporation and thus the Insurance Company would not be able to escape its liability to pay the amount of compensation.31. The liability to pay compensation is based on a statutory provision. Compulsory insurance of the vehicle is meant for the benefit of the third parties. The liability of the owner to have compulsory insurance is only in regard to third party and not to the property. Once the vehicle is insured, the owner as well as any other person can use the vehicle with the consent of the owner. Section 146 of the Act does not provide that any person who uses the vehicle independently, a separate insurance policy should be taken. The purpose of compulsory insurance in the Act has been enacted with an object to advance social justice.6. The law laid down in Kulsums case (supra) squarely applies to the facts of the present case. Also, the argument based on Clause 10,is only between the Corporation and the bus owner and does not bind anybody who is not privy to the aforesaid agreement, least of all, the victim. | 1 | 2,557 | 1,876 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
### Input:
vehicle is in the actual possession and control of the hirer not be proper for the purpose of fastening of liability in case of an accident. The liability of the owner is vicarious for the tort committed by its employee during the course of his employment and it would be a question of fact in each case as to on whom can vicarious liability be fastened in the case of an accident. In this case, Shri Sanjay Kumar, the owner of the bus could not ply the bus on the particular route for which he had no permit and he in fact was not plying the bus on that route. The services of the driver were transferred along with complete control to RSRTC, under whose directions, instructions and command the driver was to ply or not to ply the ill-fated bus on the fateful day. The passengers were being carried by RSRTC on receiving fare from them. Shri Sanjay Kumar was therefore not concerned with the passengers travelling in that bus on the particular route on payment of fare to RSRTC. Driver of the bus, even though an employee of the owner, was at the relevant time performing his duties under the order and command of the conductor of RSRTC for operation of the bus. So far as the passengers of the ill-fated bus are concerned, their privity of contract was only with the RSRTC to whom they had paid the fare for travelling in that bus and their safety therefore became the responsibility of the RSRTC while travelling in the bus. They had no privity of contract with Shri Sanjay Kumar, the owner of the bus at all. Had it been a case only of transfer of services of the driver and not of transfer of control of the driver from the owner to RSRTC, the matter may have been somewhat different. But on facts in this case and in view of Conditions 4 to 7 of the agreement (supra), the RSRTC must be held to be vicariously liable for the tort committed by the driver while plying the bus under contract of the RSRTC. The general proposition of law and the presumption arising therefrom that an employer, that is, the person who has the right to hire and fire the employee, is generally responsible vicariously for the tort committed by the employee concerned during the course of his employment and within the scope of his authority, is a rebuttable presumption. (emphasis in original) xxx xxx xxx 18. In our considered opinion, in the light of the drastic and distinct changes incorporated in the definition of owner in the old Act and the present Act, Kailash Naths case [Rajasthan State Road Transport Corporation v. Kailash Nath Kothari (1997) 7 SCC 481 ] has no application to the facts of this case. We were unable to persuade ourselves with the specific question which arose in this and connected appeals as the question projected in these appeals was neither directly nor substantially in issue, in Kailash Naths case [Rajasthan State Road Transport Corporation v. Kailash Nath Kothari (1997) 7 SCC 481 ]. Thus, reference to the same may not be of much help to us. Admittedly, in the said case, this Court was dealing with regard to earlier definition of owner as found in Section 2(19) of the old Act. Finally, the insurance company was held liable stating: 29. In the instant case, the driver was employed by Ajay Vishen, the owner of the bus but evidently through Clause 4.4 of the agreement, reproduced hereinabove, driver was supposed to drive the bus under the instructions of the conductor who was appointed by the Corporation. The said driver was also bound by all orders of the Corporation. Thus, it can safely be inferred that effective control and command of the bus was that of the Appellant. 30. Thus, for all practical purposes, for the relevant period, the Corporation had become the owner of the vehicle for the specific period. If the Corporation had become the owner even for the specific period and the vehicle having been insured at the instance of original owner, it will be deemed that the vehicle was transferred along with the insurance policy in existence to the Corporation and thus the Insurance Company would not be able to escape its liability to pay the amount of compensation. 31. The liability to pay compensation is based on a statutory provision. Compulsory insurance of the vehicle is meant for the benefit of the third parties. The liability of the owner to have compulsory insurance is only in regard to third party and not to the property. Once the vehicle is insured, the owner as well as any other person can use the vehicle with the consent of the owner. Section 146 of the Act does not provide that any person who uses the vehicle independently, a separate insurance policy should be taken. The purpose of compulsory insurance in the Act has been enacted with an object to advance social justice. 6. The law laid down in Kulsums case (supra) squarely applies to the facts of the present case. Also, the argument based on Clause 10, which states as follows, CLAUSE 10: The second party (Bus owner) shall have full liability for any fault, negligence, accident, or other illegal acts of the driver and liability for payment of any compensation or other dues whatsoever in this regard shall be that of the owner of the bus or Insurance Company under the Acts. In no case, the First party (Petitioner Corporation) shall have any liability for fault, negligence, accident, or other illegal acts of the driver. In case any payment is made by the First Party in compliance of any order of any Court, etc., the First Party shall be authorized to recover the same. is only between the Corporation and the bus owner and does not bind anybody who is not privy to the aforesaid agreement, least of all, the victim.
### Response:
1
### Explanation:
Act of 1939. Taking into consideration the definition of owner as it existed then in Section 2(19) of the old Act, it has been held in para 17 as under: (SCC pp. 487-88)17. The definition of owner Under Section 2(19) of the Act is not exhaustive. It has, therefore to be construed, in a wider sense, in the facts and circumstances of a given case. The expression owner must include, in a given case, the person who has the actual possession and control of the vehicle and under whose directions and commands the driver is obliged to operate the bus. To confine the meaning of owner to the registered owner only would in a case where the vehicle is in the actual possession and control of the hirer not be proper for the purpose of fastening of liability in case of an accident. The liability of the owner is vicarious for the tort committed by its employee during the course of his employment and it would be a question of fact in each case as to on whom can vicarious liability be fastened in the case of an accident. In this case, Shri Sanjay Kumar, the owner of the bus could not ply the bus on the particular route for which he had no permit and he in fact was not plying the bus on that route. The services of the driver were transferred along with complete control to RSRTC, under whose directions, instructions and command the driver was to ply or not to ply the ill-fated bus on the fateful day. The passengers were being carried by RSRTC on receiving fare from them. Shri Sanjay Kumar was therefore not concerned with the passengers travelling in that bus on the particular route on payment of fare to RSRTC. Driver of the bus, even though an employee of the owner, was at the relevant time performing his duties under the order and command of the conductor of RSRTC for operation of the bus. So far as the passengers of the ill-fated bus are concerned, their privity of contract was only with the RSRTC to whom they had paid the fare for travelling in that bus and their safety therefore became the responsibility of the RSRTC while travelling in the bus. They had no privity of contract with Shri Sanjay Kumar, the owner of the bus at all. Had it been a case only of transfer of services of the driver and not of transfer of control of the driver from the owner to RSRTC, the matter may have been somewhat different. But on facts in this case and in view of Conditions 4 to 7 of the agreement (supra), the RSRTC must be held to be vicariously liable for the tort committed by the driver while plying the bus under contract of the RSRTC. The general proposition of law and the presumption arising therefrom that an employer, that is, the person who has the right to hire and fire the employee, is generally responsible vicariously for the tort committed by the employee concerned during the course of his employment and within the scope of his authority, is a rebuttable presumption.(emphasis in original)xxx xxx xxx18. In our considered opinion, in the light of the drastic and distinct changes incorporated in the definition of owner in the old Act and the present Act, Kailash Naths case [Rajasthan State Road Transport Corporation v. Kailash Nath Kothari(1997) 7 SCC 481 ] has no application to the facts of this case. We were unable to persuade ourselves with the specific question which arose in this and connected appeals as the question projected in these appeals was neither directly nor substantially in issue, in Kailash Naths case [Rajasthan State Road Transport Corporation v. Kailash Nath Kothari(1997) 7 SCC 481 ]. Thus, reference to the same may not be of much help to us. Admittedly, in the said case, this Court was dealing with regard to earlier definition of owner as found in Section 2(19) of the old Act.Finally, the insurance company was held liable stating:29. In the instant case, the driver was employed by Ajay Vishen, the owner of the bus but evidently through Clause 4.4 of the agreement, reproduced hereinabove, driver was supposed to drive the bus under the instructions of the conductor who was appointed by the Corporation. The said driver was also bound by all orders of the Corporation. Thus, it can safely be inferred that effective control and command of the bus was that of the Appellant.30. Thus, for all practical purposes, for the relevant period, the Corporation had become the owner of the vehicle for the specific period. If the Corporation had become the owner even for the specific period and the vehicle having been insured at the instance of original owner, it will be deemed that the vehicle was transferred along with the insurance policy in existence to the Corporation and thus the Insurance Company would not be able to escape its liability to pay the amount of compensation.31. The liability to pay compensation is based on a statutory provision. Compulsory insurance of the vehicle is meant for the benefit of the third parties. The liability of the owner to have compulsory insurance is only in regard to third party and not to the property. Once the vehicle is insured, the owner as well as any other person can use the vehicle with the consent of the owner. Section 146 of the Act does not provide that any person who uses the vehicle independently, a separate insurance policy should be taken. The purpose of compulsory insurance in the Act has been enacted with an object to advance social justice.6. The law laid down in Kulsums case (supra) squarely applies to the facts of the present case. Also, the argument based on Clause 10,is only between the Corporation and the bus owner and does not bind anybody who is not privy to the aforesaid agreement, least of all, the victim.
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K. Narayanan Vs. S. Murali | appearing on behalf of the respondent. The learned counsel for the respondent contended that mere filing of an application for registration of trade mark by the respondent in Chennai would not confer any territorial jurisdiction for the High Court at Chennai to entertain the present suit filed by the appellants, when admittedly both the parties to the suit resided in Coimbatore, had their place of business in Coimbatore and the goods were sold only in Coimbatore.19. The learned counsel appearing on behalf of the respondent further contended that since according to Section 18 of the Act, an application for registration could be filed by both proprietor of a trade mark used and proposed to be used by him, therefore mere filing of an application for registration would not result in creating a cause of action for filing a suit for passing off.20. The learned counsel appearing on behalf of the respondent also contended that since according to Section 28 of the Act, the registration of a trade mark gave a person, exclusive ownership of the trade mark and right to take action against the infringement of the trade mark, therefore an action against infringement of trade mark could not be made in the court merely on the basis of an application for registration of trade mark.21. It was further argued that actual sale of goods was necessary to be proved in the case of passing off action and therefore the Court within whose jurisdiction the commercial sale of goods took place, had jurisdiction to entertain a suit for passing off.22. It was further argued that the decision of the Division Bench of the Delhi High Court in M/s. Jawahar Engineering Company and others, Ghaziabad (supra) was not applicable to the present case because in that case the plaintiff was a registered owner of the trade mark and the action was for injunction regarding a threatened breach of registered trade mark, whereas in the present case, the appellants were not registered owners.23. It was finally argued by the learned counsel appearing on behalf of the respondent before us, that, by merely filing a trade mark application, the respondent did not misrepresent in the course of trade that his goods were the goods of the appellants and therefore there was no cause of action for filing a suit for passing off, which necessarily required sale of ones goods deceptively as though it were the goods of another.24. Having heard the learned counsel for the parties and after carefully examining the aforementioned judgment of the High Court and also of the learned Single Judge, we do not find any infirmity in the judgment of Division Bench of the High Court holding that, before registration is granted for the trade mark, there is no right in the person to assert that the mark has been infringed and that a proposed registration which may, or may not be granted will not confer a cause of action to the plaintiff, whether the application for registration is filed by the plaintiff, or the defendant.25. In this connection, the following decisions of this Court may be strongly relied upon:-In Wander Ltd. and another Vs. Antox India P. Ltd., [1990 (Supp) SCC 727] (para 16), it has been observed as follows:- "Passing-off is said to be a species of unfair trade competition or of actionable unfair trading by which one person, through deception, attempts to obtain an economic benefit of the reputation which another has established for himself in a particular trade or business. The action is regarded as an action for deceit. The tort of passing-off involves a misrepresentation made by a trader to his prospective customers calculated to injure, as a reasonably foreseeable consequence, the business or goodwill of another which actually or probably, causes damages to the business or good of the other trader." 26. In the present case, mere filing of a trade mark application cannot be regarded as a cause of action for filing a suit for passing off since filing of an application for registration of trade mark does not indicate any deception on the part of the respondent to injure business or goodwill of the appellants.27. In Dhodha House Vs. S.K. Maingi, [(2006) 9 SCC 41] (para 31), it has been observed as follows:- "A cause of action will arise only when a registered trade mark is used and not when an application is filed for registration of the trade mark. In a given case, an application for grant of registration certificate may or may not be allowed. The person in whose favour a registration certificate has already been granted (sic) indisputably will have an opportunity to oppose the same by filing an application before the Registrar, who has the requisite jurisdiction to determine the said question. In other words, a suit may lie where an infringement of trade mark or copyright takes place but a cause of action for filing the suit would not arise within the jurisdiction of the court only because an advertisement has been issued in the Trade Marks Journal or any other journal, notifying the factum filing of such an application." 28. In the aforesaid decision, this Court has expressed its concurrence to the views observed by the Division Bench of the High Court of Madras in Premier Distilleries Pvt. Ltd. Vs. Sushi Distilleries [2001 (3) CTC 652], which observed as under:- "The cause of action in a suit for passing off, on the other hand and as already observed, has nothing at all to do with the location of the Registrars office or the factum of applying or not applying for registration. It is wholly unnecessary for the plaintiff to prove that he had applied for registration. The fact that the plaintiff had not applied for registration will not improve the case of the defendant either. Filing of an application for registration of a trade mark, therefore, does not constitute a part of cause of action where the suit is one for passing off." (Emphasis supplied) | 0[ds]24. Having heard the learned counsel for the parties and after carefully examining the aforementioned judgment of the High Court and also of the learned Single Judge, we do not find any infirmity in the judgment of Division Bench of the High Court holding that, before registration is granted for the trade mark, there is no right in the person to assert that the mark has been infringed and that a proposed registration which may, or may not be granted will not confer a cause of action to the plaintiff, whether the application for registration is filed by the plaintiff, or the defendant.25. In this connection, the following decisions of this Court may be strongly relied upon:-In Wander Ltd. and another Vs. Antox India P. Ltd., [1990 (Supp) SCC 727] (para 16), it has been observed asis said to be a species of unfair trade competition or of actionable unfair trading by which one person, through deception, attempts to obtain an economic benefit of the reputation which another has established for himself in a particular trade or business. The action is regarded as an action for deceit. The tort of passing-off involves a misrepresentation made by a trader to his prospective customers calculated to injure, as a reasonably foreseeable consequence, the business or goodwill of another which actually or probably, causes damages to the business or good of the other trader.In the present case, mere filing of a trade mark application cannot be regarded as a cause of action for filing a suit for passing off since filing of an application for registration of trade mark does not indicate any deception on the part of the respondent to injure business or goodwill of the appellants.27. In Dhodha House Vs. S.K. Maingi, [(2006) 9 SCC 41] (para 31), it has been observed ascause of action will arise only when a registered trade mark is used and not when an application is filed for registration of the trade mark. In a given case, an application for grant of registration certificate may or may not be allowed. The person in whose favour a registration certificate has already been granted (sic) indisputably will have an opportunity to oppose the same by filing an application before the Registrar, who has the requisite jurisdiction to determine the said question. In other words, a suit may lie where an infringement of trade mark or copyright takes place but a cause of action for filing the suit would not arise within the jurisdiction of the court only because an advertisement has been issued in the Trade Marks Journal or any other journal, notifying the factum filing of such an application.In the aforesaid decision, this Court has expressed its concurrence to the views observed by the Division Bench of the High Court of Madras in Premier Distilleries Pvt. Ltd. Vs. Sushi Distilleries [2001 (3) CTC 652], which observed ascause of action in a suit for passing off, on the other hand and as already observed, has nothing at all to do with the location of the Registrars office or the factum of applying or not applying for registration. It is wholly unnecessary for the plaintiff to prove that he had applied for registration. The fact that the plaintiff had not applied for registration will not improve the case of the defendant either. Filing of an application for registration of a trade mark, therefore, does not constitute a part of cause of action where the suit is one for passing off." (Emphasis | 0 | 2,508 | 651 | ### 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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appearing on behalf of the respondent. The learned counsel for the respondent contended that mere filing of an application for registration of trade mark by the respondent in Chennai would not confer any territorial jurisdiction for the High Court at Chennai to entertain the present suit filed by the appellants, when admittedly both the parties to the suit resided in Coimbatore, had their place of business in Coimbatore and the goods were sold only in Coimbatore.19. The learned counsel appearing on behalf of the respondent further contended that since according to Section 18 of the Act, an application for registration could be filed by both proprietor of a trade mark used and proposed to be used by him, therefore mere filing of an application for registration would not result in creating a cause of action for filing a suit for passing off.20. The learned counsel appearing on behalf of the respondent also contended that since according to Section 28 of the Act, the registration of a trade mark gave a person, exclusive ownership of the trade mark and right to take action against the infringement of the trade mark, therefore an action against infringement of trade mark could not be made in the court merely on the basis of an application for registration of trade mark.21. It was further argued that actual sale of goods was necessary to be proved in the case of passing off action and therefore the Court within whose jurisdiction the commercial sale of goods took place, had jurisdiction to entertain a suit for passing off.22. It was further argued that the decision of the Division Bench of the Delhi High Court in M/s. Jawahar Engineering Company and others, Ghaziabad (supra) was not applicable to the present case because in that case the plaintiff was a registered owner of the trade mark and the action was for injunction regarding a threatened breach of registered trade mark, whereas in the present case, the appellants were not registered owners.23. It was finally argued by the learned counsel appearing on behalf of the respondent before us, that, by merely filing a trade mark application, the respondent did not misrepresent in the course of trade that his goods were the goods of the appellants and therefore there was no cause of action for filing a suit for passing off, which necessarily required sale of ones goods deceptively as though it were the goods of another.24. Having heard the learned counsel for the parties and after carefully examining the aforementioned judgment of the High Court and also of the learned Single Judge, we do not find any infirmity in the judgment of Division Bench of the High Court holding that, before registration is granted for the trade mark, there is no right in the person to assert that the mark has been infringed and that a proposed registration which may, or may not be granted will not confer a cause of action to the plaintiff, whether the application for registration is filed by the plaintiff, or the defendant.25. In this connection, the following decisions of this Court may be strongly relied upon:-In Wander Ltd. and another Vs. Antox India P. Ltd., [1990 (Supp) SCC 727] (para 16), it has been observed as follows:- "Passing-off is said to be a species of unfair trade competition or of actionable unfair trading by which one person, through deception, attempts to obtain an economic benefit of the reputation which another has established for himself in a particular trade or business. The action is regarded as an action for deceit. The tort of passing-off involves a misrepresentation made by a trader to his prospective customers calculated to injure, as a reasonably foreseeable consequence, the business or goodwill of another which actually or probably, causes damages to the business or good of the other trader." 26. In the present case, mere filing of a trade mark application cannot be regarded as a cause of action for filing a suit for passing off since filing of an application for registration of trade mark does not indicate any deception on the part of the respondent to injure business or goodwill of the appellants.27. In Dhodha House Vs. S.K. Maingi, [(2006) 9 SCC 41] (para 31), it has been observed as follows:- "A cause of action will arise only when a registered trade mark is used and not when an application is filed for registration of the trade mark. In a given case, an application for grant of registration certificate may or may not be allowed. The person in whose favour a registration certificate has already been granted (sic) indisputably will have an opportunity to oppose the same by filing an application before the Registrar, who has the requisite jurisdiction to determine the said question. In other words, a suit may lie where an infringement of trade mark or copyright takes place but a cause of action for filing the suit would not arise within the jurisdiction of the court only because an advertisement has been issued in the Trade Marks Journal or any other journal, notifying the factum filing of such an application." 28. In the aforesaid decision, this Court has expressed its concurrence to the views observed by the Division Bench of the High Court of Madras in Premier Distilleries Pvt. Ltd. Vs. Sushi Distilleries [2001 (3) CTC 652], which observed as under:- "The cause of action in a suit for passing off, on the other hand and as already observed, has nothing at all to do with the location of the Registrars office or the factum of applying or not applying for registration. It is wholly unnecessary for the plaintiff to prove that he had applied for registration. The fact that the plaintiff had not applied for registration will not improve the case of the defendant either. Filing of an application for registration of a trade mark, therefore, does not constitute a part of cause of action where the suit is one for passing off." (Emphasis supplied)
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24. Having heard the learned counsel for the parties and after carefully examining the aforementioned judgment of the High Court and also of the learned Single Judge, we do not find any infirmity in the judgment of Division Bench of the High Court holding that, before registration is granted for the trade mark, there is no right in the person to assert that the mark has been infringed and that a proposed registration which may, or may not be granted will not confer a cause of action to the plaintiff, whether the application for registration is filed by the plaintiff, or the defendant.25. In this connection, the following decisions of this Court may be strongly relied upon:-In Wander Ltd. and another Vs. Antox India P. Ltd., [1990 (Supp) SCC 727] (para 16), it has been observed asis said to be a species of unfair trade competition or of actionable unfair trading by which one person, through deception, attempts to obtain an economic benefit of the reputation which another has established for himself in a particular trade or business. The action is regarded as an action for deceit. The tort of passing-off involves a misrepresentation made by a trader to his prospective customers calculated to injure, as a reasonably foreseeable consequence, the business or goodwill of another which actually or probably, causes damages to the business or good of the other trader.In the present case, mere filing of a trade mark application cannot be regarded as a cause of action for filing a suit for passing off since filing of an application for registration of trade mark does not indicate any deception on the part of the respondent to injure business or goodwill of the appellants.27. In Dhodha House Vs. S.K. Maingi, [(2006) 9 SCC 41] (para 31), it has been observed ascause of action will arise only when a registered trade mark is used and not when an application is filed for registration of the trade mark. In a given case, an application for grant of registration certificate may or may not be allowed. The person in whose favour a registration certificate has already been granted (sic) indisputably will have an opportunity to oppose the same by filing an application before the Registrar, who has the requisite jurisdiction to determine the said question. In other words, a suit may lie where an infringement of trade mark or copyright takes place but a cause of action for filing the suit would not arise within the jurisdiction of the court only because an advertisement has been issued in the Trade Marks Journal or any other journal, notifying the factum filing of such an application.In the aforesaid decision, this Court has expressed its concurrence to the views observed by the Division Bench of the High Court of Madras in Premier Distilleries Pvt. Ltd. Vs. Sushi Distilleries [2001 (3) CTC 652], which observed ascause of action in a suit for passing off, on the other hand and as already observed, has nothing at all to do with the location of the Registrars office or the factum of applying or not applying for registration. It is wholly unnecessary for the plaintiff to prove that he had applied for registration. The fact that the plaintiff had not applied for registration will not improve the case of the defendant either. Filing of an application for registration of a trade mark, therefore, does not constitute a part of cause of action where the suit is one for passing off." (Emphasis
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MOHINDER KAUR Vs. SANT PAUL SINGH | notice cancelled the agreement and confiscated the amount paid, for lapses of the respondent. Relying on I.S. Sikandar (D) by L.Rs. vs. K. Subramani and Ors., (2013) 15 SCC 27 , it was submitted that the suit for specific performance simpliciter was not maintainable in absence of any challenge to the cancellation of the agreement, and seeking consequential declaratory relief. It was next submitted that the respondent did not enter the witness box to establish his readiness and willingness to perform his obligations under the agreement for sale. PW-1 was a power of attorney holder from the respondent by execution on 02.11.1989. She was not competent to depose with regard to events prior to the same, especially with regard to facts personal to the knowledge of the respondent. Reliance was placed on Janki Vashdeo Bhojwani and Ors. vs. Indusind Bank Ltd. and Ors., (2005) 2 SCC 217. Mere bald assertions in the plaint, were not sufficient, in absence of any evidence to establish readiness and willingness. Relaince was placed on Vijay Kumar and Ors. vs. Om Parkash, 2018 (15) SCALE 65. 4. Shri Vineet Bhagat, learned counsel for the respondent, submitted that the appellant did not give proper intimation regarding the redemption from mortgage of the suit property. The respondent was always ready and willing to perform his obligations under the agreement, but was hindered by the conduct of the appellant in not placing correct and relevant information in accordance with the agreement.5. We have considered the submissions on behalf of the parties. It is an undisputed fact that the suit property stood redeemed from mortgage on 04.07.1989. The appellant sent due intimation by registered post to the respondent on 27.07.1989 and also provided him with a photocopy of the release deed, requiring the respondent to take steps for execution of the sale deed. The respondent by reply dated 02.08.1989 insisted on the no-dues certificate, denying receipt of the release deed. The respondent then gave a power of attorney on 02.11.1989 to PW¬1. The witness was naturally unaware of the preceding events and denied receipt of the notice dated 27.07.1989 itself. The witness was therefore also incompetent to deny receipt of photocopy of the release documents by the respondent. It was for the respondent to establish his readiness and willingness for execution of the agreement by entering the witness box and proving his capacity to pay the balance consideration amount. Except for the solitary statement in the plaint no evidence whatsoever was led on behalf of the respondent with regard to the same, if PW-1 was competent to depose with regard to the same because these were facts which had to be personal to the knowledge of the respondent alone. Had the witness even led any documentary evidence on behalf of the respondent, in support of the plea for readiness and willingness on part of the respondent, different considerations may have arisen. The witness also sought to deny any knowledge regarding the cancellation of the agreement on 01.09.1989.6. In Janki Vashdeo (supra), it was held that a power of attorney holder, who has acted in pursuance of the said power, may depose on behalf of the principal in respect of such acts but cannot depose for the principal for the acts done by the principal and not by the power of attorney holder. Likewise, the power of attorney holder cannot depose for the principal in respect of matters of which the principal alone can have personal knowledge and in respect of which the principal is entitled to be cross-examined. In our opinion, the failure of the respondent to appear in the witness box can well be considered to raise an adverse presumption against him as further observed therein as follows :"15. Apart from what has been stated, this Court in the case of Vidhyadhar v. Manikrao observed at SCC pp. 583¬84, para 17 that:?17. Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross¬examined by the other side, a presumption would arise that the case set up by him is not correct….?7. The agreement was cancelled by the appellant on 01.09.1989 and the consideration already paid confiscated under intimation to the respondent. The respondent never challenged the communication of cancellation. In Sikandar (supra) it was observed as follows:?37. As could be seen from the prayer sought for in the original suit, the Plaintiff has not sought for declaratory relief to declare the termination of Agreement of Sale as bad in law. In the absence of such prayer by the Plaintiff the original suit filed by him before the trial court for grant of decree for specific performance in respect of the suit schedule property on the basis of Agreement of Sale and consequential relief of decree for permanent injunction is not maintainable in law.38. Therefore, we have to hold that the relief sought for by the Plaintiff for grant of decree for specific performance of execution of sale deed in respect of the suit schedule property in his favour on the basis of non existing Agreement of Sale is wholly unsustainable in law….?8. We are of the considered opinion that merely because the respondent may not have been satisfied by the intimation given by the appellant regarding release of the property from mortgage, it cannot be construed as readiness and willingness on part of the respondent and his capacity to perform his obligations under the agreement, particularly when he is stated to have subsequently migrated to America and in which circumstance he executed the power of attorney in favour of PW¬1. The relief of specific performance being discretionary in nature, the respondent cannot be held to have established his case for grant of such relief. The conclusions of the High Court, both on aspects of readiness and willingness of the respondent and lack of due intimation by the appellant to the respondent regarding redemption of the mortgage are held to be unsustainable. | 1[ds]5. We have considered the submissions on behalf of the parties. It is an undisputed fact that the suit property stood redeemed from mortgage on 04.07.1989. The appellant sent due intimation by registered post to the respondent on 27.07.1989 and also provided him with a photocopy of the release deed, requiring the respondent to take steps for execution of the sale deed. The respondent by reply dated 02.08.1989 insisted on the no-dues certificate, denying receipt of the release deed. The respondent then gave a power of attorney on 02.11.1989 to PW¬1. The witness was naturally unaware of the preceding events and denied receipt of the notice dated 27.07.1989 itself. The witness was therefore also incompetent to deny receipt of photocopy of the release documents by the respondent. It was for the respondent to establish his readiness and willingness for execution of the agreement by entering the witness box and proving his capacity to pay the balance consideration amount. Except for the solitary statement in the plaint no evidence whatsoever was led on behalf of the respondent with regard to the same, if PW-1 was competent to depose with regard to the same because these were facts which had to be personal to the knowledge of the respondent alone. Had the witness even led any documentary evidence on behalf of the respondent, in support of the plea for readiness and willingness on part of the respondent, different considerations may have arisen. The witness also sought to deny any knowledge regarding the cancellation of the agreement onthe power of attorney holder cannot depose for the principal in respect of matters of which the principal alone can have personal knowledge and in respect of which the principal is entitled to be cross-examined. In our opinion, the failure of the respondent to appear in the witness box can well be considered to raise an adverse presumption againstWe are of the considered opinion that merely because the respondent may not have been satisfied by the intimation given by the appellant regarding release of the property from mortgage, it cannot be construed as readiness and willingness on part of the respondent and his capacity to perform his obligations under the agreement, particularly when he is stated to have subsequently migrated to America and in which circumstance he executed the power of attorney in favour of PW¬1. The relief of specific performance being discretionary in nature, the respondent cannot be held to have established his case for grant of such relief. The conclusions of the High Court, both on aspects of readiness and willingness of the respondent and lack of due intimation by the appellant to the respondent regarding redemption of the mortgage are held to be unsustainable. | 1 | 1,415 | 483 | ### 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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notice cancelled the agreement and confiscated the amount paid, for lapses of the respondent. Relying on I.S. Sikandar (D) by L.Rs. vs. K. Subramani and Ors., (2013) 15 SCC 27 , it was submitted that the suit for specific performance simpliciter was not maintainable in absence of any challenge to the cancellation of the agreement, and seeking consequential declaratory relief. It was next submitted that the respondent did not enter the witness box to establish his readiness and willingness to perform his obligations under the agreement for sale. PW-1 was a power of attorney holder from the respondent by execution on 02.11.1989. She was not competent to depose with regard to events prior to the same, especially with regard to facts personal to the knowledge of the respondent. Reliance was placed on Janki Vashdeo Bhojwani and Ors. vs. Indusind Bank Ltd. and Ors., (2005) 2 SCC 217. Mere bald assertions in the plaint, were not sufficient, in absence of any evidence to establish readiness and willingness. Relaince was placed on Vijay Kumar and Ors. vs. Om Parkash, 2018 (15) SCALE 65. 4. Shri Vineet Bhagat, learned counsel for the respondent, submitted that the appellant did not give proper intimation regarding the redemption from mortgage of the suit property. The respondent was always ready and willing to perform his obligations under the agreement, but was hindered by the conduct of the appellant in not placing correct and relevant information in accordance with the agreement.5. We have considered the submissions on behalf of the parties. It is an undisputed fact that the suit property stood redeemed from mortgage on 04.07.1989. The appellant sent due intimation by registered post to the respondent on 27.07.1989 and also provided him with a photocopy of the release deed, requiring the respondent to take steps for execution of the sale deed. The respondent by reply dated 02.08.1989 insisted on the no-dues certificate, denying receipt of the release deed. The respondent then gave a power of attorney on 02.11.1989 to PW¬1. The witness was naturally unaware of the preceding events and denied receipt of the notice dated 27.07.1989 itself. The witness was therefore also incompetent to deny receipt of photocopy of the release documents by the respondent. It was for the respondent to establish his readiness and willingness for execution of the agreement by entering the witness box and proving his capacity to pay the balance consideration amount. Except for the solitary statement in the plaint no evidence whatsoever was led on behalf of the respondent with regard to the same, if PW-1 was competent to depose with regard to the same because these were facts which had to be personal to the knowledge of the respondent alone. Had the witness even led any documentary evidence on behalf of the respondent, in support of the plea for readiness and willingness on part of the respondent, different considerations may have arisen. The witness also sought to deny any knowledge regarding the cancellation of the agreement on 01.09.1989.6. In Janki Vashdeo (supra), it was held that a power of attorney holder, who has acted in pursuance of the said power, may depose on behalf of the principal in respect of such acts but cannot depose for the principal for the acts done by the principal and not by the power of attorney holder. Likewise, the power of attorney holder cannot depose for the principal in respect of matters of which the principal alone can have personal knowledge and in respect of which the principal is entitled to be cross-examined. In our opinion, the failure of the respondent to appear in the witness box can well be considered to raise an adverse presumption against him as further observed therein as follows :"15. Apart from what has been stated, this Court in the case of Vidhyadhar v. Manikrao observed at SCC pp. 583¬84, para 17 that:?17. Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross¬examined by the other side, a presumption would arise that the case set up by him is not correct….?7. The agreement was cancelled by the appellant on 01.09.1989 and the consideration already paid confiscated under intimation to the respondent. The respondent never challenged the communication of cancellation. In Sikandar (supra) it was observed as follows:?37. As could be seen from the prayer sought for in the original suit, the Plaintiff has not sought for declaratory relief to declare the termination of Agreement of Sale as bad in law. In the absence of such prayer by the Plaintiff the original suit filed by him before the trial court for grant of decree for specific performance in respect of the suit schedule property on the basis of Agreement of Sale and consequential relief of decree for permanent injunction is not maintainable in law.38. Therefore, we have to hold that the relief sought for by the Plaintiff for grant of decree for specific performance of execution of sale deed in respect of the suit schedule property in his favour on the basis of non existing Agreement of Sale is wholly unsustainable in law….?8. We are of the considered opinion that merely because the respondent may not have been satisfied by the intimation given by the appellant regarding release of the property from mortgage, it cannot be construed as readiness and willingness on part of the respondent and his capacity to perform his obligations under the agreement, particularly when he is stated to have subsequently migrated to America and in which circumstance he executed the power of attorney in favour of PW¬1. The relief of specific performance being discretionary in nature, the respondent cannot be held to have established his case for grant of such relief. The conclusions of the High Court, both on aspects of readiness and willingness of the respondent and lack of due intimation by the appellant to the respondent regarding redemption of the mortgage are held to be unsustainable.
### Response:
1
### Explanation:
5. We have considered the submissions on behalf of the parties. It is an undisputed fact that the suit property stood redeemed from mortgage on 04.07.1989. The appellant sent due intimation by registered post to the respondent on 27.07.1989 and also provided him with a photocopy of the release deed, requiring the respondent to take steps for execution of the sale deed. The respondent by reply dated 02.08.1989 insisted on the no-dues certificate, denying receipt of the release deed. The respondent then gave a power of attorney on 02.11.1989 to PW¬1. The witness was naturally unaware of the preceding events and denied receipt of the notice dated 27.07.1989 itself. The witness was therefore also incompetent to deny receipt of photocopy of the release documents by the respondent. It was for the respondent to establish his readiness and willingness for execution of the agreement by entering the witness box and proving his capacity to pay the balance consideration amount. Except for the solitary statement in the plaint no evidence whatsoever was led on behalf of the respondent with regard to the same, if PW-1 was competent to depose with regard to the same because these were facts which had to be personal to the knowledge of the respondent alone. Had the witness even led any documentary evidence on behalf of the respondent, in support of the plea for readiness and willingness on part of the respondent, different considerations may have arisen. The witness also sought to deny any knowledge regarding the cancellation of the agreement onthe power of attorney holder cannot depose for the principal in respect of matters of which the principal alone can have personal knowledge and in respect of which the principal is entitled to be cross-examined. In our opinion, the failure of the respondent to appear in the witness box can well be considered to raise an adverse presumption againstWe are of the considered opinion that merely because the respondent may not have been satisfied by the intimation given by the appellant regarding release of the property from mortgage, it cannot be construed as readiness and willingness on part of the respondent and his capacity to perform his obligations under the agreement, particularly when he is stated to have subsequently migrated to America and in which circumstance he executed the power of attorney in favour of PW¬1. The relief of specific performance being discretionary in nature, the respondent cannot be held to have established his case for grant of such relief. The conclusions of the High Court, both on aspects of readiness and willingness of the respondent and lack of due intimation by the appellant to the respondent regarding redemption of the mortgage are held to be unsustainable.
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Nanavati and Company Private Limited Vs. R.C. Dutt and Others | is direct demand with the manufacturers, it is possible that nothing or very little will be sold through the sole selling agent. In my case it will lead to conflict and litigation on the appropriate construction of this clause in juxtaposition to the other clauses which survive as a part of the contract. In that context we must think that, prima facie, the new clause reduces the sole selling agent to the position of a mere agent who may sell the goods as and when received from the manufacturers who are otherwise entitled to sell directly to various customers. Is it the intention of section 294 (5) to so amend the contract as neither to retain the appellant-company as a sole selling agent not the abolish the contract altogether What is done is a third thing altogether, viz. , the sole selling agent is reduced to the position of an ordinary agent. We do not think that the scheme of this section permits the mutilation of the contract in such manner as to change the character of the agency. The terms and conditions may be varied in such a manner as to make them no longer prejudicial to the company, but what is to be retained is a sole selling agency. That will be apparent from the provisions of clause (d) of section 294 (5) which says that from the date of the varied order the appointment of the sole selling agent shall be regulated with the terms and conditions varied by the Company Law Board. In terms, therefore, the sole selling agent has to remain a sole selling agent and there seems to be no objection to vary certain terms of the contract but his relationship with the company has to be regulated by the terms amended by the company Law Board. A reference to sub-section (6) of section 294 of the Act will also further illustrate the same position. Under sub-clause (a) of sub-section (6) where a company has more selling agents that one (by whatever name called) in any area or areas and it appears to the company Law Board that there is good reason so to do, they are entitled to call for information about the terms and conditions of appointment of various agents for the purpose of determining whether any of those selling agents should be declared as sole selling agent for that area. Clause (b) is similar to clause (b) of sub-section (5). Clause (c) of section 6 authorises the Central government to read the information supplied by the company having regard to the terms and conditions of appointment of any of selling agents and to other relevant features, and to declare that a particular selling agent be the sole agent of the company. The position, therefore is that under sub-section (5) a sole selling agent whose terms and conditions of appointment are prejudicial to the interest of the company, authority is given to change, amend or vary the terms and conditions in such a manner as to retain the sole selling agent with the terms and conditions in such a manner as to retain the sole selling agent with the terms and conditions which are no longer prejudicial to the interest of the company. In another case where there is in fact a sole selling agent but he is not so designated, but an appearance is put up that there are many agents of the company, power is again given to the Central Government to investigate into their position and declare a particular agent as a sole selling agent. The scheme, therefore, seems to be that where the sole selling agent is considered necessary for a company, the terms and conditions must be such as are not prejudicial to the company; otherwise those terms and conditions are liable to be interfered with by retaining the character of the sole selling agent as such. It is, therefore, clear that, in passing the present order and substituting with the new clause (12), the company Law Board has acted beyond the powers vested in it under sub-section (5) of section 294 of the Act. (71) FOR the purpose of this appeal we are not called upon to decide whether under sub-section (5) the Company Law Board could in fact terminate or cancel the appointment of a sole selling agent. That power may be assumed for the time being. However, in view of the compulsion on the sole selling agent to continue to function as such, and in view of the provisions of sub-section (4), we are of the view that transformation of a sole selling agent into just an ordinary agent is beyond the scope of section 294, sub-section (5) (c). (72) ANOTHER aspect of the question will be that the appellant-company was never made aware, apart from the consequences which can flow under section 294 (5) under which the appellant-company would be compelled to act as an ordinary agent and would cease to be the sole selling agent. For effecting such a change the proposed clause in the show-cause notice does not give enough notice to the party, who is being affected thereby. Consequently, no discussion was possible in the personal hearing on this subject. There is, therefore, another breach of the observance of the principles of natural justice in this case by taking action which was never brought to the notice of the party affected and without an opportunity to make representation and without giving hearing to that party on that subject. At this stage we might also make it clear that clause (12) appears to be an independent and severable clause and if we had not found any other defect in the order, it would have been possible to merely cancel or quash this clause, without interfering with the rest of the order passed by the Company Law Board. However, as we find that there are other grounds on which the order is defective we are inclined to quash it as a whole. | 1[ds](17) HAVING heard the learned counsel on both the sides, we are not much impressed by the argument that the provisions of section 294 (5) of the Act are violative of the principles of article 14 of the Constitution. It was argued that the provisions of section 294 (5) are discriminatory and permit the Company Law Board to pick and choose some of the parties who may be having sole selling agency contracts to the exclusion of others who may be similarly circumstances. So far as the sole selling agency contracts are concerned, it was stated that it was a common type of contract which many companies may be having for selling their goods. There is no provision for making the Company Law Board aware of the various contracts which many companies may be having. There is also no provision by which contracts are required to be registered somewhere nor any provisions are to be found for the appointment of the officer who will examine such contracts and bring to the notice of the Company Law Board that the terms thereof appear to be prejudicial to the interest of the company. The expression prejudicial used in the section is also vague and does not convey any specific meaning. On the fact of it, therefore, an element of artificiality is prevalent in all these provisions and there does not seem to be any classification which can be justified on a rational ground. There are also not safeguards or guiding principles which are required to be observed by the Company Law Board before a decision is taken. According to Shri Bhat, this being prima facie al enquiry as it affects the contractual rights of the sole selling agent, the section indicates no settled norms which ought to be observed by the Company Law Board before it makes up its mind to pass a certain order. He points out that under the earlier part of section 294, a sole selling agent can be appointed by the company, but unless the appointment is approved in the first general body meeting held after the date on which the appointment is made, the appointment ceases to be valid. This is the effect of the provisions ofs (2) and (2a) of section 294 of the Act. It is, therefore, obvious that a solemn commercial contract has been entered into by the two willing parties which has been ratified by the general body of the shareholdersThe provisions being so uncertain would serve as a handle in the hands of unscrupulous companies to take the help of a sole selling agent for a time when it suits them and to avoid the contract by applying to the Company Law Board when the circumstances change and the help of a sole selling agent is no more needed. The principles on which such a challenge to the constitutionality of a provision can be considered have been laid down in various judgments of the Supreme Court and they seem to be now almost settledIn that case the state Government was given the right under section 5 (1) of the West Bengal Special Courts Act (X of 1950) to transfer any particular case relating to any offence alleged to have been committed by any accused to a special court for being tried. According to the procedure of that act, in cases where the State Government was of the opinion that it was necessary in the interest of speedy trial so to do, it could transfer any case under any offence to the special court. The provisions of section 5 (1) have been struck down as ultra vires and offending the provisions of article 14 of the Constitution. If the provisions of the West Bengal Special Courts Act are taken into account and the approach of the Supreme Court is considered in that behalf, we think that this judgment would be of no assistance to the present. In that case the only broad guideline to the State Government was to pick and choose any case relating to any offence and alleged to have been committed by any accused on the sole test of speedy justice. Speedier trial could be, in the circumstances, reason and motive for the legislation, but could not amount either to a classification of offences or cases. The necessity of speedier trial was considered too vague, uncertain and elusive criterion to form the basis of a valid and reasonable classification. The Act chose to bestow upon the State Government unrestrained power to select any case or offence for trial before a special tribunal and thereby withdraw the normal protection an accused has under the ordinary procedural law. This was considered highly discriminatory and it was further pointed out that not only a law but even a rule fell within the purview of the challenge under article 14 of the Constitution. We are not in a position to draw any analogy with the provisions considered by the Supreme Court and the provisions which are before us for our consideration. The challenge in that case succeeded because the Supreme Court held that there was no classification in the real sense of the term as it was not based on any characteristics which were peculiar to persons or to cases which were to be subjected to the special procedure prescribed by the Act(24) IN the light of these principles if the provisions of section 294 (5) are examined, we find that it is difficult to sustain the challenge under article 14 of the Constitution of India. The provisions ofsubsection (5) of section 294of the Act are obviously conceived of to eradicate one of the evilsn to the legislature. The principle on which this provisions has been enacted can be well imagined. There may be certain products manufactured by the companies which are in such great demand and which are in such short supply that selling of these articles poses no problem whatsoever. It is possible to imagine that in such a case needy customers would be knocking at the doors of the company to supply the goods. An average shareholder is neither vigilant nor well informed of all the prevailing conditions of the market. It may be that the shareholders on the basis of the information given to them agree to the sanction and approval of the appointment of a sole selling agent on certain terms and conditions. It may be that it was later on realised that there was hardly any need for the appointment of a sold selling agent or at any rate it was not necessary to appoint any on such liberal terms as to commission and other payments which are incorporated in the contract. The contract itself as a whole or certain terms thereof might be considered prejudicial to the interests of the company. This would depend on a variety of circumstances present and a high powered body like the Company Law Board may be in a position to discover which contracts appear to be prejudicial to the interests of the company and which do not. It may be noted that section 294 deals only with the sole selling agents and not with ordinary agents and dealers ors that may be appointed from time to time and whose terms and conditions could also be varied from time to time. The sole selling agent is recognised as a necessary institution but the terms and conditions on which advantage of that organisation could be taken must not be prejudicial to the interests of the company. Here is therefore the first distinguishable feature which becomes apparent of the face of the record, viz. , that the class of companies which are conceived of are those companies who have sold selling agents and whose terms and conditions of appointment are prejudicial to the interests of the company. This appears to us as a well defined class and should be understood as a classification to the exclusion of other companies, who do not either sole selling agents at all or whose terms of appointment are not prejudicial to the interests of the company. There is, therefore, a well recognised classification to be reckoned under section 294 (5)(25) THEN again we find that the guidelines are to be found within the provisions of clause (c) ofsubsection (5) of section 294of the Act. It is not every contract that is open for variation by the company Law Board, but unless a contract is found to be prejudicial, the Company Law Board does not seem to have any right or authority to interfere with the agreements of sole selling agents. A finding to be arrived at by the Company Law Board that a certain contract of a sole selling agent is prejudicial to the interests of the company is the very foundation of the jurisdiction of the Company Law Board. Whether a particular agreement of a sole selling agent could be described as prejudicial or not prejudicial would always depend upon the facts and circumstances of the case and various attending circumstances. The expression seems to be difficult to define but it is quite capable of being understood as providing a rational guideline for taking a decision on the facts and circumstances of the case. A selling agency and its utility as well as necessity are mattersn to the commercial world and the implications thereof could be easily deciphered by experienced persons. The question does not pose either complicated investigation or a position of any complex type. The simplest case that could be conceived of is where a commodity is in so short supply that before it is manufactured and comes out of the factory there are orders standing from buyers and the company finds if difficult to meet the pending orders. Throwing away sizable commission or rebate in favour of a sole selling agent in a case of this type might be at once styled as highly prejudicial to the interests of the company. There may be other cases where there is reasonable possibility of marketing a product but there is fair amount of competition. It isn that a large section of consumers usually accept goods which are generally available and are brought to their doors by canvassing by competent and able salesmen. In the circumstances mentioned in the second instance a competent and able sales organisation would be a welcome help and giving them enough rebate so that they would push their sales better would be conducive to the interests of the company and not at all prejudicial(26) WE are not attempting to analyse the entire market conditions which would suggest when a prejudice is caused and when it is not by the appointment of a sole selling agent. This discussion is aimed at only pointing out that though the section has used only one expression, viz. , the contract becoming prejudicial, it is still capable of providing a rational guideline for the exercise of the power by the Company Law Board. Even after reading the provisions of clause (d) ofsubsection (5) of section 294(29) LARGE number of cases were cited before us on either side to convince us that this would be eitherl or administrative function of the Company Law Board. The learned single judge has not decided this question but has proceeded on the assumption that the inquiry may be assumed to be. He, however, felt and in view of the case law then available rightly, whether an action is administrative or, it is enough if principles of natural justice are followed and full and proper hearing is given to a party. With that approach the facts of this case were examined and, as we pointed out earlier, a conclusion was reached that adequate and sufficient hearing was given to the appellant company in compliance of the observance of the principles of natural justice. However, there has been of late further thinking on the subject and it is no more a matter of doubt that whether an administrative or judicial action, it must always be preceded with the observance of the principles of natural justice. Apart from that, the dividing line between an administrative power and al power is quite thin and is being gradually obliterated as pointed out by the Supreme Court in A. K. Kraipak v. Union of India. For determining whether a power is an administrative power or al power one has to look to the nature of the power conferred, the person or persons on whom it is conferred, the framework of the law conferring that power, the consequences ensuing from the exercise of that power and the manner in which that power is expected to be exercised. That in a welfare State like India which is regulated and controlled by the rule of law it is inevitable that the jurisdiction of the administrative bodies is increasing at a repaid rate. However, if it is expected that the rule of law should not lose its vitality, the authorities and bodies which are being created, whether administrative or, should all discharge their functions in a fair and just manner(31) WE will at once point out that when an attempt was made to raise certain grounds conducive to the development of this point, it was opposed by Mr. Joshi on behalf of the respondents. After hearing the counsel on both the sides, we are rejecting that objection. Mr. Joshis objection on behalf of respondents Nos. 1 to 4 is that the petition pleads that the impugned order isl in its nature. There is no pleading that the order is bad because it does not incorporate reasons therein. This is aground which should not be allowed to be taken by adding to the pleading. So far as the technicality of amendment of the petition is concerned, we are now rejecting the application. While indicating our mind during arguments it was equally made clear at the Bar that even apart from the amendment of pleadings if, on the basis of the case law and on the facts and circumstances as they exist, it is possible for the appellant company to raise that challenge by way of a pure question of law, it would be permitted to be argued. In fact an argument has been raised before us on these lines and we are called upon to consider whether the impugned order could be declared as void simply because it does not contain any reasons therefor. Such a conclusion could be possible only if it is held that it is al order and further nothing beyond the order is expected to be examined by the courts(33) WE need not probe this point any further. The reason will become apparent in the further part of our judgment. However, since Mr. Bhat wanted to argue that the absence of a speaking order is fatal in al proceedings he brought to our notice the above judgments. Before such an argument was to be made there was an obstacle in his way that this was not specifically pleaded in the petition. We find that there is good authority not only in the cases falling under the Civil Procedure Code, section 100, but also in appeals arising out of writ matters that the high Courts and the Supreme Court have permitted arguments on pure questions of law when no new facts need be pleaded or proved. In other words, if what is pleaded itself leads to the raising of a question of law, it is not the requirement of the pleading that the law should be pleaded. For instance, in the case of Bhagat Ram Patanga v. State of Punjab, the matter reached the Supreme Court after a Full Bench of five judges of the Punjab and Haryana High court answered the reference made to it. It appears that in this case the matter commenced before a single judge. The matter then went in appeal to a Division Bench which referred certain points to a Full Bench. All the three judges of the Full Bench in turn again referred those points to a further larger Bench of five judges. At the appeal, for the first time, the appellant raised a contention that the proceedings initiated against him are(34) THE facts before us clearly show that the order in question is being pointed out in the petitions al order. If that is a point of dispute, the further argument relating to the necessity of incorporating reasons in the order now affords a point of law from the subsequent judgments of the Supreme Court. These judgments were not available to the parties at the time when the petition was presented or when it was argued before the learned single judge. We do not think that the raising of this point should be prevented on the technical plea that want of reasons has not been specifically pleaded in the petition(35) BEFORE we again go to some of the cases on which reliance is placed for pointing out that the proceedings under section 294 (5) arel proceedings it would be appropriate to point out the broad distinction betweenl order and an administrative order. In Radeshyam kharev. State of Madhya Pradesh, the Supreme Court observed that there seem to be three requisites in order that the act of a body may be said to bel act, viz. , that the body of persons, (1) must have legal authority, (2) to determine questions affecting the rights of parties, and (3) must have the duty to act judicially. It is the third condition which really distinguishes an administrative order from one which is. Even for an administrative order the body of persons must be invested with powers and sometimes an administrative order can have much more for reaching effects than thel orders. Affecting the civil rights of persons can be a common feature of orders administrative as well as. Where there is a duty cast under the Act to act judicially the order would tend to be. The his not to suggest that it is only in the case ofl matters that there is a need to act in a fair and just manner. Approach on the basis of observance of principles of natural justice is common to both. That being a necessary approach for the just decision of a controversial point whether the administrative tribunal or theIt is now well settled that the need to act judicially could be seen from the express provisions of the Act itself or could be inferred from the implied provisions as also from the nature of the power, the nature of the body of persons who are invested with it and consequences that must follow from the exercise thereof, etc. In other words, if there is an imperative need to act judicially, from the necessary implication and from the provisions and the attending circumstances, the functions to be performed would have to be held. In a case falling under section 294 (5) the information, as we pointed out earlier, is of a very limited type and no particular kind of investigation or inquiry with evidence, etc. , seems to be necessary. Immediately thereafterbut in view of the principles which the courts have developedafter hearing the party affected, an opinion is permitted to be formed. In a process of this type conceived of by clause (c) under consideration, it is difficult to read that there is either express or implied provision for acting judicially. No elaborate investigation is called for nor seems to be necessary. However, the Board must hear those who are going to be affected and that hearing would be in the observance of the principles of natural justice. We may here point out that the principles of natural justice are not codified law but ared rules which are developed by the courts from time to time. The Supreme Court has pointed out in A. K. Kraipaks case that the concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules, viz. , (1)no one shall be a judge in his own case (nemo debt esse judex propria cause), and (2) no decision shall be given against a party without affording him a reasonable hearing (audit alteram partem). Very soon, thereafter, a third rule was envisaged and that is that(38) IN this limited sense a just decision by observance of certain rules of code of conduct is not to be confused with the requirement of a law to act judicially. Unless that is writ large either expressly or by necessary implication by the provisions of law, it may not be possible to infer that the inquiry contemplated is. Looked at from that point of view and looking to the purpose and function ofsubsection (5) of section 294we find it difficult to persuade ourselves that the enquiry that the Company Law Board must make before forming the opinion could be described as al one. On the material already collected as per clause (a) or (b) and after hearing the parties on that material, the Company Law Board has to form an honest and unbaised opinion and if that opinion really is that the existing terms and conditions of the sole selling agent are prejudicial to the interest of the company, it has at once to take a step which will bring about a condition contemplated by the last portion of clause (c) ofsubsection (5) of section 294In both these cases the provisions of the company law which was under consideration was section 237 of the Act. We do not think that either of the cases can be usefully considered for the interpretation of section 294 (5) of the Act for the simple reason that there is one distinct feature in the section under consideration which was absent in section 237. Section 237 of the Act deals with the investigation of the companys affairs in certain cases. The final result of the investigation, whatever that be, does not seem to bind any one nor does in affect the rights of any party. If at all any action is contemplated, civil, or criminal, as a result of the investigation conducted under section 237, the matter has to be taken to a court of law. However, section 294 (5) of the Act directly affects the civil rights of a sole selling agent like they and we do not think, therefore, that the conclusions of the Supreme Court that the orders under section 237 of the Act are administrative in character can have any relevance while discussing the provisions of section 294 (5)That was a judgment under section 326 if the Act relating to the approval of the Central Government to the appointment, etc. , of the managing agents under certain circumstances. These provisions were construed by the Supreme Court and their Lordships held that the enquiry under that section is. The reasons seem to be obvious. A plain look at the provisions of section 326 will show that the Central Government is called upon to accord its approval to the appointment or reappointment of the managing agent only if the conditions mentioned in clauses (a), (b) and (c), of(2) of section 326 existed. Out of these clauses, particularly clause (b) of(2) requires the Central government to form its opinion as to whether the managing agent proposed is a fit and proper person to be appointed or reappointed and that the conditions which are proposed are fair and reasonable. It is clear that the suitability of a person to be appointed as a managing agent, would depend upon the consideration of all the material that may be available about the person concerned. That person will have a right to lead evidence and disprove certain allegations which are being otherwise made against him. If he is made aware of the facts which are against him and that seems to be necessary in any fair enquiry, he will lead evidence to disprove what is being alleged against him, or he might point out the circumstances under which these events occurred and the need to appreciate them in the correct perspective. There is, therefore, no doubt on the face of it that the section calls for a judicial disposal of the dispute. It may be that the enquiry is by the Company Law Board and the only party is the person whose status to be appointed as a managing agent is under enquiry. We do not think that the provisions of section 326 could be said to be comparable to the provisions of section 294. It is stated at the Bar that except for this litigation there has been no occasion to consider the provisions of section 294. As we find that neither section 326 nor section 237 of the Act was comparable to the provisions of section 294 (5), we must decide the question raised before us by looking at the section, its implication and the real import of the provision in the light of the broad principles which are well establishedThe learned trial judge has come to the conclusion that they somehow appears to have obtained all the material on which the Company Law Board acted. The learned judge does admit that a part of the material, which was in fact important portion of the material, was not made available by the Company Law Board to the appellant. However, a conclusion has been reached that they has acted in close collaboration with respondent No.y and there is ground to infer that they must have received all the material from respondent no.. So far as the present petition is concerned, it appears that respondents Nos. 1 to 3 have placed on record the material that was available to them(45) OUT of this material two important documents do not seem to have been made available to the. When the Registrar of Companies wrote to respondent No.y on the basis of the complaint of the shareholders, a reply was sent by respondent No.y to the Registrar of Companies. That correspondence was ultimately referred to the Company Law Board. However, neither the letter of the shareholders addressed to the Registrar of Companies nor the reply of the respondent No.y to the registrar of Companies was made available to the appellant either by the Company Law Board or by respondent No.. Shri Bhat points out that the Company Law Board calls for certain information from respondent No., but the full text of that letter was never made available to they by respondent No. 5. They sent only some extracts and on the strength of those extracts they sent a reply to the Company Law Board annexing along with it its auditedt and accounts. Undoubtedly that was a letter under section 294 (5) (a) and even the extract sent to the appellant by the respondent No.y aware that the Company Law Board was making enquiry into the matter under section 294 (5)(48) WE must not forget that thee notice was not an independent document but it had direct relation to the terms and conditions in the original agreement which were sought to be varied under the powers vested in the Company Law Board under section 294 (5). There was one case of sales directly to be made by the manufactures contemplated by clause (12) of the original agreement and even in respect of that sale they was entitled to its 5% rebate. Read in that context the proposal of the Company Law Board, prima facie, shows that in respect of those sales effected under clause (12) the appellant will not be entitled to its rebate. However, while giving the explanation respondent No.y seems to enlarge the basis of the proposal and makes a query whether the proposed amendment is to be understood as a free right of sale tos also with no liability to pay rebate to the, the sole selling agent. This approach suggested in the reply of respondent No.y has ultimately been accepted by the Company Law Board while passing the final order. The, prima facie, is not aware of this suggestion of respondent No.y which is directly against the interest of they and also against the avowed terms of its agreement. While furnishing information to the Company Law Board, respondent No.y in its earlier reply has pointed out that they has already earned a rebate of Rs. 13 lakhs over a period of 3 to 4 years. It has also suggested there that if this rebate was not payable to the(56) THESE are all the circumstances on record so far as the facts are concerned. From the proximity of time when the replies are given and from the fact that the representative of they was present at the personal hearing, we are not in a position to conclude that the appellant and respondent No.y were acting in close collaboration or hand in glove. It may be that they is introduced by respondent No. 5 as sole selling agent and it is normally the management of the company which makes contracts and places them before the general body of the shareholders. However, at a point of time when the Company Law Board was seized of the enquiry it is difficult to say that the interest of they of the management thereof were not in conflict with each other. Those in management of the company are fully aware of the various provisions of the Act and the interference that is possible in the management of the company. If at all, we find that their attitude exhibited in their conduct and return is not to oppose the proposed amendment very seriously not to support them. In on place they point out that the commission agreed is reasonable and they has set out a sales organisation which seems to be necessary. In an earlier reply they pointed out that Rs. 13 lakhs were paid as commission and that amount could have been saved and the companys financial position would have improved. They also suggest that a free hand in sales be given without any rebate to. It is, therefore, difficult for us to see that there was collaboration between the two and that the entire material which was available to the Company Law Board was also made available to they for making a representation. If that is so, then undoubtedly, there has been a failure of the observance of the principles of natural justice because sufficient and adequate opportunity has not been made available to they to present its case. We have also not means to verify what precisely took place at the oral hearing as the pleading do not disclose specifically the points that could have been raised and discussed. We do not have the advantage of being able to examine the notes of the hearing that took place as none of them has been produced along with the affidavit of respondents Nos. 1 to 3. We find in the case of Bhagat ram Patanga v. State of Punjab, the Full Bench of five judges of the High Court of Punjab and haryana had the advantage of examining the entire file of the Government which dealt with the subject and the examination of which satisfied the learned judges that natural justice appeared to have been done. In the absence of similar material before us, judging from the pleadings and the material available to us we are inclined to hold that the main points that must have weighed against the appellant were not specifically brought to the notice of they so as to enable the | 1 | 21,588 | 5,680 | ### 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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is direct demand with the manufacturers, it is possible that nothing or very little will be sold through the sole selling agent. In my case it will lead to conflict and litigation on the appropriate construction of this clause in juxtaposition to the other clauses which survive as a part of the contract. In that context we must think that, prima facie, the new clause reduces the sole selling agent to the position of a mere agent who may sell the goods as and when received from the manufacturers who are otherwise entitled to sell directly to various customers. Is it the intention of section 294 (5) to so amend the contract as neither to retain the appellant-company as a sole selling agent not the abolish the contract altogether What is done is a third thing altogether, viz. , the sole selling agent is reduced to the position of an ordinary agent. We do not think that the scheme of this section permits the mutilation of the contract in such manner as to change the character of the agency. The terms and conditions may be varied in such a manner as to make them no longer prejudicial to the company, but what is to be retained is a sole selling agency. That will be apparent from the provisions of clause (d) of section 294 (5) which says that from the date of the varied order the appointment of the sole selling agent shall be regulated with the terms and conditions varied by the Company Law Board. In terms, therefore, the sole selling agent has to remain a sole selling agent and there seems to be no objection to vary certain terms of the contract but his relationship with the company has to be regulated by the terms amended by the company Law Board. A reference to sub-section (6) of section 294 of the Act will also further illustrate the same position. Under sub-clause (a) of sub-section (6) where a company has more selling agents that one (by whatever name called) in any area or areas and it appears to the company Law Board that there is good reason so to do, they are entitled to call for information about the terms and conditions of appointment of various agents for the purpose of determining whether any of those selling agents should be declared as sole selling agent for that area. Clause (b) is similar to clause (b) of sub-section (5). Clause (c) of section 6 authorises the Central government to read the information supplied by the company having regard to the terms and conditions of appointment of any of selling agents and to other relevant features, and to declare that a particular selling agent be the sole agent of the company. The position, therefore is that under sub-section (5) a sole selling agent whose terms and conditions of appointment are prejudicial to the interest of the company, authority is given to change, amend or vary the terms and conditions in such a manner as to retain the sole selling agent with the terms and conditions in such a manner as to retain the sole selling agent with the terms and conditions which are no longer prejudicial to the interest of the company. In another case where there is in fact a sole selling agent but he is not so designated, but an appearance is put up that there are many agents of the company, power is again given to the Central Government to investigate into their position and declare a particular agent as a sole selling agent. The scheme, therefore, seems to be that where the sole selling agent is considered necessary for a company, the terms and conditions must be such as are not prejudicial to the company; otherwise those terms and conditions are liable to be interfered with by retaining the character of the sole selling agent as such. It is, therefore, clear that, in passing the present order and substituting with the new clause (12), the company Law Board has acted beyond the powers vested in it under sub-section (5) of section 294 of the Act. (71) FOR the purpose of this appeal we are not called upon to decide whether under sub-section (5) the Company Law Board could in fact terminate or cancel the appointment of a sole selling agent. That power may be assumed for the time being. However, in view of the compulsion on the sole selling agent to continue to function as such, and in view of the provisions of sub-section (4), we are of the view that transformation of a sole selling agent into just an ordinary agent is beyond the scope of section 294, sub-section (5) (c). (72) ANOTHER aspect of the question will be that the appellant-company was never made aware, apart from the consequences which can flow under section 294 (5) under which the appellant-company would be compelled to act as an ordinary agent and would cease to be the sole selling agent. For effecting such a change the proposed clause in the show-cause notice does not give enough notice to the party, who is being affected thereby. Consequently, no discussion was possible in the personal hearing on this subject. There is, therefore, another breach of the observance of the principles of natural justice in this case by taking action which was never brought to the notice of the party affected and without an opportunity to make representation and without giving hearing to that party on that subject. At this stage we might also make it clear that clause (12) appears to be an independent and severable clause and if we had not found any other defect in the order, it would have been possible to merely cancel or quash this clause, without interfering with the rest of the order passed by the Company Law Board. However, as we find that there are other grounds on which the order is defective we are inclined to quash it as a whole.
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from respondent no.. So far as the present petition is concerned, it appears that respondents Nos. 1 to 3 have placed on record the material that was available to them(45) OUT of this material two important documents do not seem to have been made available to the. When the Registrar of Companies wrote to respondent No.y on the basis of the complaint of the shareholders, a reply was sent by respondent No.y to the Registrar of Companies. That correspondence was ultimately referred to the Company Law Board. However, neither the letter of the shareholders addressed to the Registrar of Companies nor the reply of the respondent No.y to the registrar of Companies was made available to the appellant either by the Company Law Board or by respondent No.. Shri Bhat points out that the Company Law Board calls for certain information from respondent No., but the full text of that letter was never made available to they by respondent No. 5. They sent only some extracts and on the strength of those extracts they sent a reply to the Company Law Board annexing along with it its auditedt and accounts. Undoubtedly that was a letter under section 294 (5) (a) and even the extract sent to the appellant by the respondent No.y aware that the Company Law Board was making enquiry into the matter under section 294 (5)(48) WE must not forget that thee notice was not an independent document but it had direct relation to the terms and conditions in the original agreement which were sought to be varied under the powers vested in the Company Law Board under section 294 (5). There was one case of sales directly to be made by the manufactures contemplated by clause (12) of the original agreement and even in respect of that sale they was entitled to its 5% rebate. Read in that context the proposal of the Company Law Board, prima facie, shows that in respect of those sales effected under clause (12) the appellant will not be entitled to its rebate. However, while giving the explanation respondent No.y seems to enlarge the basis of the proposal and makes a query whether the proposed amendment is to be understood as a free right of sale tos also with no liability to pay rebate to the, the sole selling agent. This approach suggested in the reply of respondent No.y has ultimately been accepted by the Company Law Board while passing the final order. The, prima facie, is not aware of this suggestion of respondent No.y which is directly against the interest of they and also against the avowed terms of its agreement. While furnishing information to the Company Law Board, respondent No.y in its earlier reply has pointed out that they has already earned a rebate of Rs. 13 lakhs over a period of 3 to 4 years. It has also suggested there that if this rebate was not payable to the(56) THESE are all the circumstances on record so far as the facts are concerned. From the proximity of time when the replies are given and from the fact that the representative of they was present at the personal hearing, we are not in a position to conclude that the appellant and respondent No.y were acting in close collaboration or hand in glove. It may be that they is introduced by respondent No. 5 as sole selling agent and it is normally the management of the company which makes contracts and places them before the general body of the shareholders. However, at a point of time when the Company Law Board was seized of the enquiry it is difficult to say that the interest of they of the management thereof were not in conflict with each other. Those in management of the company are fully aware of the various provisions of the Act and the interference that is possible in the management of the company. If at all, we find that their attitude exhibited in their conduct and return is not to oppose the proposed amendment very seriously not to support them. In on place they point out that the commission agreed is reasonable and they has set out a sales organisation which seems to be necessary. In an earlier reply they pointed out that Rs. 13 lakhs were paid as commission and that amount could have been saved and the companys financial position would have improved. They also suggest that a free hand in sales be given without any rebate to. It is, therefore, difficult for us to see that there was collaboration between the two and that the entire material which was available to the Company Law Board was also made available to they for making a representation. If that is so, then undoubtedly, there has been a failure of the observance of the principles of natural justice because sufficient and adequate opportunity has not been made available to they to present its case. We have also not means to verify what precisely took place at the oral hearing as the pleading do not disclose specifically the points that could have been raised and discussed. We do not have the advantage of being able to examine the notes of the hearing that took place as none of them has been produced along with the affidavit of respondents Nos. 1 to 3. We find in the case of Bhagat ram Patanga v. State of Punjab, the Full Bench of five judges of the High Court of Punjab and haryana had the advantage of examining the entire file of the Government which dealt with the subject and the examination of which satisfied the learned judges that natural justice appeared to have been done. In the absence of similar material before us, judging from the pleadings and the material available to us we are inclined to hold that the main points that must have weighed against the appellant were not specifically brought to the notice of they so as to enable the
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SATWARATNA CO-OP HOUSING SOCIETY LTD. & ANR Vs. BHARAT PETROLEUM CORPORATION LTD. & ORS | the impugned order, the Commissioner taking into consideration the apprehensions expressed by the petitioner. The petitioner points out as to how the vital installations are targets of terrorists and the activities of this nature are carried out throughout the world. Such installations are regular targets. To paralyse the economy and to block the regular supply of petroleum products that regularly the refineries are attacked. Merely because after 26th November, 2008, no terrorist attack or bomb blast has taken place in the city of Mumbai does not mean that there will no recurrence of the same in future. In fact, because of the high alert and strict vigil that such attacks are averted. Moreever, sustained efforts in improving the standards of safety and security would not necessarily guarantee that in future, there will be no attacks mounted on all vital installations in the city of Mumbai. In fact, the recent developments denote that on several occasions and particularly when there are such incidents in the neighbouring countries, an alert is sounded, cautioning all concerned, by the Intelligence Agencies in India. They alert everybody, including parties like the petitioner and request them to take additional protective and safety measures. They place the installations like the petitioner in high risk zone. Additional forces are deployed and we see their presence round the clock. In fact, the concerns expressed by the petitioner have not been addressed by the authorities. We cannot be unmindful of the fact that despite high level meetings convened, no comprehensive policy measures are taken. It is left to the petitioner to upgrade its safety measures. It is left to the petitioner to then deploy additional security officials. It is only left to the petitioner then to strengthen its boundaries and compound walls. However, this is an individual endeavor. A comprehensive action plan has to be put in place. That is not only by the planning authority and Ministry, but, equally by the Central Government and Central Industrial Security Forces and agencies like the same. They have to sit together and draw up a contingency and security plan. We hope and trust that it would be done expeditiously. 25. In making the observations the High Court completely lost sight of the fact that a building was already in existence. The residents have been vacated for construction of a new stronger and better building. Only a few additional floors were being added, which did not contravene any Rules or Regulation. 26. In our considered opinion, the High Court patently erred in arriving at its effective finding that permission for reconstruction could even be refused in the absence of any law, rule or regulation demarcating a buffer zone around a refinery. Regulation 16 of the DC 27. Regulations of 1991 pertaining to the construction of buildings is extracted hereinbelow for convenience:- 16. Requirements of sites – No land shall be used as a site for the construction of buildings - (a) if the Commissioner considers that the site is insanitary or that it is dangerous to construct a building on it or no water supply is likely to be available within a reasonable period of time. (b)-(d) * * * (e) If the use of the said site is for a purpose which in the Commissioners opinion may be a source of danger to the health and safety of the inhabitants of the neighborhood. (f)-(m) * * * (n) if the proposed development is likely to involve damage to or have deleterious impact on or is against urban aesthetics or environment or ecology and/or on historical/architectural/aesthetical buildings and precincts or is not in the public interest. 28. The said Rule provides that if the Commissioner considers that the site is insanitary or it is dangerous to construct a building on it or water supply would not be available within a reasonable period of time, the land is not to be used as a site for construction of building. The Commissioner may also prevent the use of land as a site for construction, if the use of the said site is for a purpose which might in the Commissioners opinion be a source of danger to the health and safety of the inhabitants of the neighbourhood. To cite an example land may not be used for a purpose which is likely to cause environmental pollution. Permission to construct may be refused on land which is not fit for construction, such as swampy or low lying land. The Commissioner might even disallow the use of land for construction of buildings if the proposed construction is likely to cause damage or have deleterious impact on or is against urban aesthetics or endanger environment or ecology and/or historical/architectural/aesthetical buildings and precincts or is not in the public interest. It is for the Commissioner to take a call taking into account relevant factors. It is not for the High court, exercising jurisdiction under Article 226 of the Constitution of India to sit in appeal over the decision taken by the Municipal Commissioner. 29. In exercise of jurisdiction under Article 226 of the Constitution of India, the High Court is only to examine whether the Municipal Commissioner acted within the limits of his jurisdiction and examine whether there was any such legal infirmity in the decision making process which vitiated the decision. 30. In this case, the High Court has in effect and substance sat in appeal over the decision of the Municipal Commissioner. The Municipal Commissioner took note of the existence of buildings in the vicinity and the existence of higher buildings at a lesser distance from the refinery. The Municipal Commissioner rightly took note of the fact that the building was being redeveloped. It was not a case of new construction. 31. At the cost of repetition, it is reiterated that in the absence of any law, Rules or Regulations which prohibited the construction of a seven storeyed building at the site in question, the descretion of the Municipal Commissioner was not liable to be interfered with. | 1[ds]19. There can be no doubt, as observed by the High Court, that natural calamities come uninvited. There are possibilities of cyclones, heavy rainfalls, floods, mudslides, landslides and the like. However, the connection between reconstruction of a dilapidated building that had been in existence and the possibility of natural calamities is difficult to perceive.20. There can also be no doubt that a refinery is not to be compared with other establishments. A refinery has to be protected. However, when there is no law which provides for a buffer zone between a refinery and other constructions, it was rather harsh to comment that the Commissioner had been wholly oblivious to the security and safety concerns of the RespondentBPCL, more so when the Municipal Commissioner had given direction for round the clock security, police verification of prospective flat buyers, etc.21. It is rather surprising that the High Court should have taken exception in the impugned judgment and order to the fact that the Municipal Commissioner had issued a stop work order but later passed the impugned order.22. The High Court appears to have overlooked the note of the Executive Engineer concerned and the advice to issue a stop work order at the risk of the Respondent-BPCL of the costs and consequences of the stop work order. It is patently obvious that the stop work order was a temporary measure pending further consideration of the objection raised by the Respondent-BPCL to the reconstruction of the building. If anyone were to be aggrieved by the stop work order, it was really the appellants and/or the flat owners temporarily shifted elsewhere, and not any one else.23. There can be no doubt that the security of the refinery is of paramount consideration. However, in the absence of any law which provides for a buffer zone between a refinery and a residential building as observed hereinabove, the owner of land cannot be prevented from the right to utilize the land effectively including the right to carry out redevelopment and/or reconstruction in accordance with law and the Rules and Regulations with regard to the construction of buildings.24. The High Court took note of the provisions of the Maharashtra Regional Town Planning Act, 1966, hereinafter referred to as the MRTP Act and in particular, Chapter III thereof, titled Development Plan. Unfortunately, the MRTP Act does not contain any specific provision which prohibits or even restricts the construction of a building in the vicinity of a refinery. The Development Control Regulations for Greater Mumbai, framed under Section 22 clause(m) of the MRTP Act, requires measures of safety and public interest to be taken into consideration. There cannot be any question of haphazard constructions or control free development. However, in the impugned judgment and order there is no specific finding of contravention by the Appellants of any particular statutory provision or of any particular Rule or Regulation in redevelopment of the building in question.25. In making the observations the High Court completely lost sight of the fact that a building was already in existence. The residents have been vacated for construction of a new stronger and better building. Only a few additional floors were being added, which did not contravene any Rules or Regulation.26. In our considered opinion, the High Court patently erred in arriving at its effective finding that permission for reconstruction could even be refused in the absence of any law, rule or regulation demarcating a buffer zone around a refinery.29. In exercise of jurisdiction under Article 226 of the Constitution of India, the High Court is only to examine whether the Municipal Commissioner acted within the limits of his jurisdiction and examine whether there was any such legal infirmity in the decision making process which vitiated the decision.30. In this case, the High Court has in effect and substance sat in appeal over the decision of the Municipal Commissioner. The Municipal Commissioner took note of the existence of buildings in the vicinity and the existence of higher buildings at a lesser distance from the refinery. The Municipal Commissioner rightly took note of the fact that the building was being redeveloped. It was not a case of new construction.31. At the cost of repetition, it is reiterated that in the absence of any law, Rules or Regulations which prohibited the construction of a seven storeyed building at the site in question, the descretion of the Municipal Commissioner was not liable to be interfered with. | 1 | 4,510 | 804 | ### Instruction:
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the impugned order, the Commissioner taking into consideration the apprehensions expressed by the petitioner. The petitioner points out as to how the vital installations are targets of terrorists and the activities of this nature are carried out throughout the world. Such installations are regular targets. To paralyse the economy and to block the regular supply of petroleum products that regularly the refineries are attacked. Merely because after 26th November, 2008, no terrorist attack or bomb blast has taken place in the city of Mumbai does not mean that there will no recurrence of the same in future. In fact, because of the high alert and strict vigil that such attacks are averted. Moreever, sustained efforts in improving the standards of safety and security would not necessarily guarantee that in future, there will be no attacks mounted on all vital installations in the city of Mumbai. In fact, the recent developments denote that on several occasions and particularly when there are such incidents in the neighbouring countries, an alert is sounded, cautioning all concerned, by the Intelligence Agencies in India. They alert everybody, including parties like the petitioner and request them to take additional protective and safety measures. They place the installations like the petitioner in high risk zone. Additional forces are deployed and we see their presence round the clock. In fact, the concerns expressed by the petitioner have not been addressed by the authorities. We cannot be unmindful of the fact that despite high level meetings convened, no comprehensive policy measures are taken. It is left to the petitioner to upgrade its safety measures. It is left to the petitioner to then deploy additional security officials. It is only left to the petitioner then to strengthen its boundaries and compound walls. However, this is an individual endeavor. A comprehensive action plan has to be put in place. That is not only by the planning authority and Ministry, but, equally by the Central Government and Central Industrial Security Forces and agencies like the same. They have to sit together and draw up a contingency and security plan. We hope and trust that it would be done expeditiously. 25. In making the observations the High Court completely lost sight of the fact that a building was already in existence. The residents have been vacated for construction of a new stronger and better building. Only a few additional floors were being added, which did not contravene any Rules or Regulation. 26. In our considered opinion, the High Court patently erred in arriving at its effective finding that permission for reconstruction could even be refused in the absence of any law, rule or regulation demarcating a buffer zone around a refinery. Regulation 16 of the DC 27. Regulations of 1991 pertaining to the construction of buildings is extracted hereinbelow for convenience:- 16. Requirements of sites – No land shall be used as a site for the construction of buildings - (a) if the Commissioner considers that the site is insanitary or that it is dangerous to construct a building on it or no water supply is likely to be available within a reasonable period of time. (b)-(d) * * * (e) If the use of the said site is for a purpose which in the Commissioners opinion may be a source of danger to the health and safety of the inhabitants of the neighborhood. (f)-(m) * * * (n) if the proposed development is likely to involve damage to or have deleterious impact on or is against urban aesthetics or environment or ecology and/or on historical/architectural/aesthetical buildings and precincts or is not in the public interest. 28. The said Rule provides that if the Commissioner considers that the site is insanitary or it is dangerous to construct a building on it or water supply would not be available within a reasonable period of time, the land is not to be used as a site for construction of building. The Commissioner may also prevent the use of land as a site for construction, if the use of the said site is for a purpose which might in the Commissioners opinion be a source of danger to the health and safety of the inhabitants of the neighbourhood. To cite an example land may not be used for a purpose which is likely to cause environmental pollution. Permission to construct may be refused on land which is not fit for construction, such as swampy or low lying land. The Commissioner might even disallow the use of land for construction of buildings if the proposed construction is likely to cause damage or have deleterious impact on or is against urban aesthetics or endanger environment or ecology and/or historical/architectural/aesthetical buildings and precincts or is not in the public interest. It is for the Commissioner to take a call taking into account relevant factors. It is not for the High court, exercising jurisdiction under Article 226 of the Constitution of India to sit in appeal over the decision taken by the Municipal Commissioner. 29. In exercise of jurisdiction under Article 226 of the Constitution of India, the High Court is only to examine whether the Municipal Commissioner acted within the limits of his jurisdiction and examine whether there was any such legal infirmity in the decision making process which vitiated the decision. 30. In this case, the High Court has in effect and substance sat in appeal over the decision of the Municipal Commissioner. The Municipal Commissioner took note of the existence of buildings in the vicinity and the existence of higher buildings at a lesser distance from the refinery. The Municipal Commissioner rightly took note of the fact that the building was being redeveloped. It was not a case of new construction. 31. At the cost of repetition, it is reiterated that in the absence of any law, Rules or Regulations which prohibited the construction of a seven storeyed building at the site in question, the descretion of the Municipal Commissioner was not liable to be interfered with.
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19. There can be no doubt, as observed by the High Court, that natural calamities come uninvited. There are possibilities of cyclones, heavy rainfalls, floods, mudslides, landslides and the like. However, the connection between reconstruction of a dilapidated building that had been in existence and the possibility of natural calamities is difficult to perceive.20. There can also be no doubt that a refinery is not to be compared with other establishments. A refinery has to be protected. However, when there is no law which provides for a buffer zone between a refinery and other constructions, it was rather harsh to comment that the Commissioner had been wholly oblivious to the security and safety concerns of the RespondentBPCL, more so when the Municipal Commissioner had given direction for round the clock security, police verification of prospective flat buyers, etc.21. It is rather surprising that the High Court should have taken exception in the impugned judgment and order to the fact that the Municipal Commissioner had issued a stop work order but later passed the impugned order.22. The High Court appears to have overlooked the note of the Executive Engineer concerned and the advice to issue a stop work order at the risk of the Respondent-BPCL of the costs and consequences of the stop work order. It is patently obvious that the stop work order was a temporary measure pending further consideration of the objection raised by the Respondent-BPCL to the reconstruction of the building. If anyone were to be aggrieved by the stop work order, it was really the appellants and/or the flat owners temporarily shifted elsewhere, and not any one else.23. There can be no doubt that the security of the refinery is of paramount consideration. However, in the absence of any law which provides for a buffer zone between a refinery and a residential building as observed hereinabove, the owner of land cannot be prevented from the right to utilize the land effectively including the right to carry out redevelopment and/or reconstruction in accordance with law and the Rules and Regulations with regard to the construction of buildings.24. The High Court took note of the provisions of the Maharashtra Regional Town Planning Act, 1966, hereinafter referred to as the MRTP Act and in particular, Chapter III thereof, titled Development Plan. Unfortunately, the MRTP Act does not contain any specific provision which prohibits or even restricts the construction of a building in the vicinity of a refinery. The Development Control Regulations for Greater Mumbai, framed under Section 22 clause(m) of the MRTP Act, requires measures of safety and public interest to be taken into consideration. There cannot be any question of haphazard constructions or control free development. However, in the impugned judgment and order there is no specific finding of contravention by the Appellants of any particular statutory provision or of any particular Rule or Regulation in redevelopment of the building in question.25. In making the observations the High Court completely lost sight of the fact that a building was already in existence. The residents have been vacated for construction of a new stronger and better building. Only a few additional floors were being added, which did not contravene any Rules or Regulation.26. In our considered opinion, the High Court patently erred in arriving at its effective finding that permission for reconstruction could even be refused in the absence of any law, rule or regulation demarcating a buffer zone around a refinery.29. In exercise of jurisdiction under Article 226 of the Constitution of India, the High Court is only to examine whether the Municipal Commissioner acted within the limits of his jurisdiction and examine whether there was any such legal infirmity in the decision making process which vitiated the decision.30. In this case, the High Court has in effect and substance sat in appeal over the decision of the Municipal Commissioner. The Municipal Commissioner took note of the existence of buildings in the vicinity and the existence of higher buildings at a lesser distance from the refinery. The Municipal Commissioner rightly took note of the fact that the building was being redeveloped. It was not a case of new construction.31. At the cost of repetition, it is reiterated that in the absence of any law, Rules or Regulations which prohibited the construction of a seven storeyed building at the site in question, the descretion of the Municipal Commissioner was not liable to be interfered with.
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N.K. Rajgarhia Vs. M/S.Mahavir Plantation Ltd. | a compromise in execution proceedings. Nor does Order 20, Rule 11(2) affect this power of the executing Court. Order 20, Rule 11 enables the court passing the decree to order postponement of the payment of the decretal amount on such terms as to the payment of interest as it thinks fit on the application of the judgment-debtor and with the consent of the decree-holder. It does not affect the power of the executing Court under Section 47 and Order 21, Rule 2. 14. Yet again in Periyakkal (supra), this Court held that, in certain situations, the court has also jurisdiction to extend the time stating: The parties, however, entered into a compromise and invited the court to make an order in terms of the compromise, which the court did. The time for deposit stipulated by the parties became the time allowed by the court and this gave the court the jurisdiction to extend time in appropriate cases. Of course, time would not be extended ordinarily, nor for the mere asking. It would be granted in rare cases to prevent manifest injustice. True the court would not rewrite a contract between the parties but the court would relieve against a forfeiture clause; And, where the contract of the parties has merged in the order of the court, the courts freedom to act to further the ends of justice would surely not stand curtailed. 15. There cannot, thus, be any doubt that the compromise entered into by and between the parties hereto in the execution proceedings was valid in law. The Appellant moreover does not say that the same was not acted upon. Admittedly, he received the entire amount thereunder, albeit belatedly; but even therefor the Respondent applied for and obtained extension of time to pay the same. 16. Rightly or wrongly, the learned Single Judge of the Delhi High Court by an order dated 28.8.2002 extended the time to the Respondent herein for paying the decretal amount with interest upto 23.7.2002. The Appellant herein had accepted such amount and that order was not questioned and, thus, the same had attained finality. What was questioned was the liability incurred by the Respondent not being able to adhere to the terms thereof. 17. If the orders of extension have validly been passed, the order of the court stood complied with. It may be true that the order dated 1.4.2002 was not questioned by the Respondent before this Court but then no direction was issued therein. No judgment was passed. The said order was passed without issuing any notice to the Respondents. The appeal was disposed of as having become infructuous. It was, thus, not final. Thereby, merely a liberty had been granted to the Appellant to agitate his grievances before the learned Single Judge for execution as well as for contempt. By reason of the said order, alone the Appellant could not put forth his claim. The Appellant, thus, cannot take any benefit thereof. 18. An order of a court of law and, in particular, a consent order, must be read in its entirety for the purpose of ascertaining its true intent and purport. 19. The learned Single Judge in his order dated 13.9.2001 recorded as to how much amount was paid by the Respondent to the Appellant before the execution case was filed. The execution case admittedly was filed for recovery of the balance sum of Rs. 36,59,110/- together with interest at the rate of 15% per annum. The settlement between the parties was arrived at at this juncture in terms whereof it was agreed: 1. The judgment debtor shall pay the balance amount of Rs. 36,59,110 in the instalments. 2. For the past period, i.e., from the date of Decree till date the judgment debtor shall pay the lump sum interest of Rs. 6,35,082. 3. The judgment debtor shall pay 15% interest on the principal amount of the further period. 20. Not only the Respondent agreed to pay a lump sum interest of Rs. 6,35,082 but also became agreeable to pay 15% interest on the principal amount of the further payment. On calculation, a sum of Rs. 42,04,222/- was found to be payable out of which the judgment debtor had paid a sum of Rs. 10,00,000/- by way of three demand drafts. Appropriating the said amount, the outstanding principal sum came to Rs. 26,69,110. However, the balance amount outstanding as on that day came to Rs. 32,04,222. It was that amount which was to be liquidated by paying instalment of Rs. 6 lakhs each per month. It is in the aforementioned backdrop, the undertaking given before the learned Single Judge of the High Court by the Respondent herein is to be construed. 21. The contention of the learned counsel appearing on behalf of the Appellant is that once a default is committed by the Respondent, the Appellant in terms thereof , would be entitled to execute the balance decree immediately which would mean he would be entitled to a further sum of about Rs. 41 lakhs, which was waived by him. We do not agree. The word decree after the word balance, in our opinion, has been used loosely. The matter might have been different if the amount payable under the compromise entered into by the parties in the execution case would have been less than the amount paid by the Respondent to the Appellant in terms of the consent decree passed originally. It is not so. Whereas under the original decree, a sum of Rs. 41,69,110/- was payable, in terms of the consent order passed in the execution case, a sum of Rs. 42,04,222/- became payable. The sum which was waived by the Appellant did not form part of the consent decree. It was merely a claim. Such a claim never fructified into any decree and in that view of the matter the plea of Respondent being liable to pay the said amount to the Appellant despite the fact that no decree in relation thereto was passed cannot be countenanced. | 0[ds]8. It is, however, not in dispute that the judgment debtor has paid the entire amount together with interest in terms of the consent order dated 5.2.2002 passed in the aforementioned execution petition. It is, furthermore, not in dispute that the contempt application filed against the Respondent herein by the Appellant for violating the undertaking by him has ultimately been dismissed15. There cannot, thus, be any doubt that the compromise entered into by and between the parties hereto in the execution proceedings was valid in law. The Appellant moreover does not say that the same was not acted upon. Admittedly, he received the entire amount thereunder, albeit belatedly; but even therefor the Respondent applied for and obtained extension of time to pay the same16. Rightly or wrongly, the learned Single Judge of the Delhi High Court by an order dated 28.8.2002 extended the time to the Respondent herein for paying the decretal amount with interest upto 23.7.2002. The Appellant herein had accepted such amount and that order was not questioned and, thus, the same had attained finality. What was questioned was the liability incurred by the Respondent not being able to adhere to the terms thereof17. If the orders of extension have validly been passed, the order of the court stood complied with. It may be true that the order dated 1.4.2002 was not questioned by the Respondent before this Court but then no direction was issued therein. No judgment was passed. The said order was passed without issuing any notice to the Respondents. The appeal was disposed of as having become infructuous. It was, thus, not final. Thereby, merely a liberty had been granted to the Appellant to agitate his grievances before the learned Single Judge for execution as well as for contempt. By reason of the said order, alone the Appellant could not put forth his claim. The Appellant, thus, cannot take any benefit thereof19. The learned Single Judge in his order dated 13.9.2001 recorded as to how much amount was paid by the Respondent to the Appellant before the execution case was filed. The execution case admittedly was filed for recovery of the balance sum of Rs. 36,59,110/- together with interest at the rate of 15% per annum.20. Not only the Respondent agreed to pay a lump sum interest of Rs. 6,35,082 but also became agreeable to pay 15% interest on the principal amount of the further payment. On calculation, a sum of Rs. 42,04,222/- was found to be payable out of which the judgment debtor had paid a sum of Rs. 10,00,000/- by way of three demand drafts. Appropriating the said amount, the outstanding principal sum came to Rs. 26,69,110. However, the balance amount outstanding as on that day came to Rs. 32,04,222. It was that amount which was to be liquidated by paying instalment of Rs. 6 lakhs each per month. It is in the aforementioned backdrop, the undertaking given before the learned Single Judge of the High Court by the Respondent herein is to be construedThe contention of the learned counsel appearing on behalf of the Appellant is that once a default is committed by the Respondent, the Appellant in terms thereof , would be entitled to execute the balance decree immediately which would mean he would be entitled to a further sum of about Rs. 41 lakhs, which was waived by him.We do not agree. The word decree after the word balance, in our opinion, has been used loosely. The matter might have been different if the amount payable under the compromise entered into by the parties in the execution case would have been less than the amount paid by the Respondent to the Appellant in terms of the consent decree passed originally. It is not so. Whereas under the original decree, a sum of Rs. 41,69,110/- was payable, in terms of the consent order passed in the execution case, a sum of Rs. 42,04,222/- became payable. The sum which was waived by the Appellant did not form part of the consent decree. It was merely a claim. Such a claim never fructified into any decree and in that view of the matter the plea of Respondent being liable to pay the said amount to the Appellant despite the fact that no decree in relation thereto was passed cannot be countenanced | 0 | 2,692 | 799 | ### Instruction:
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a compromise in execution proceedings. Nor does Order 20, Rule 11(2) affect this power of the executing Court. Order 20, Rule 11 enables the court passing the decree to order postponement of the payment of the decretal amount on such terms as to the payment of interest as it thinks fit on the application of the judgment-debtor and with the consent of the decree-holder. It does not affect the power of the executing Court under Section 47 and Order 21, Rule 2. 14. Yet again in Periyakkal (supra), this Court held that, in certain situations, the court has also jurisdiction to extend the time stating: The parties, however, entered into a compromise and invited the court to make an order in terms of the compromise, which the court did. The time for deposit stipulated by the parties became the time allowed by the court and this gave the court the jurisdiction to extend time in appropriate cases. Of course, time would not be extended ordinarily, nor for the mere asking. It would be granted in rare cases to prevent manifest injustice. True the court would not rewrite a contract between the parties but the court would relieve against a forfeiture clause; And, where the contract of the parties has merged in the order of the court, the courts freedom to act to further the ends of justice would surely not stand curtailed. 15. There cannot, thus, be any doubt that the compromise entered into by and between the parties hereto in the execution proceedings was valid in law. The Appellant moreover does not say that the same was not acted upon. Admittedly, he received the entire amount thereunder, albeit belatedly; but even therefor the Respondent applied for and obtained extension of time to pay the same. 16. Rightly or wrongly, the learned Single Judge of the Delhi High Court by an order dated 28.8.2002 extended the time to the Respondent herein for paying the decretal amount with interest upto 23.7.2002. The Appellant herein had accepted such amount and that order was not questioned and, thus, the same had attained finality. What was questioned was the liability incurred by the Respondent not being able to adhere to the terms thereof. 17. If the orders of extension have validly been passed, the order of the court stood complied with. It may be true that the order dated 1.4.2002 was not questioned by the Respondent before this Court but then no direction was issued therein. No judgment was passed. The said order was passed without issuing any notice to the Respondents. The appeal was disposed of as having become infructuous. It was, thus, not final. Thereby, merely a liberty had been granted to the Appellant to agitate his grievances before the learned Single Judge for execution as well as for contempt. By reason of the said order, alone the Appellant could not put forth his claim. The Appellant, thus, cannot take any benefit thereof. 18. An order of a court of law and, in particular, a consent order, must be read in its entirety for the purpose of ascertaining its true intent and purport. 19. The learned Single Judge in his order dated 13.9.2001 recorded as to how much amount was paid by the Respondent to the Appellant before the execution case was filed. The execution case admittedly was filed for recovery of the balance sum of Rs. 36,59,110/- together with interest at the rate of 15% per annum. The settlement between the parties was arrived at at this juncture in terms whereof it was agreed: 1. The judgment debtor shall pay the balance amount of Rs. 36,59,110 in the instalments. 2. For the past period, i.e., from the date of Decree till date the judgment debtor shall pay the lump sum interest of Rs. 6,35,082. 3. The judgment debtor shall pay 15% interest on the principal amount of the further period. 20. Not only the Respondent agreed to pay a lump sum interest of Rs. 6,35,082 but also became agreeable to pay 15% interest on the principal amount of the further payment. On calculation, a sum of Rs. 42,04,222/- was found to be payable out of which the judgment debtor had paid a sum of Rs. 10,00,000/- by way of three demand drafts. Appropriating the said amount, the outstanding principal sum came to Rs. 26,69,110. However, the balance amount outstanding as on that day came to Rs. 32,04,222. It was that amount which was to be liquidated by paying instalment of Rs. 6 lakhs each per month. It is in the aforementioned backdrop, the undertaking given before the learned Single Judge of the High Court by the Respondent herein is to be construed. 21. The contention of the learned counsel appearing on behalf of the Appellant is that once a default is committed by the Respondent, the Appellant in terms thereof , would be entitled to execute the balance decree immediately which would mean he would be entitled to a further sum of about Rs. 41 lakhs, which was waived by him. We do not agree. The word decree after the word balance, in our opinion, has been used loosely. The matter might have been different if the amount payable under the compromise entered into by the parties in the execution case would have been less than the amount paid by the Respondent to the Appellant in terms of the consent decree passed originally. It is not so. Whereas under the original decree, a sum of Rs. 41,69,110/- was payable, in terms of the consent order passed in the execution case, a sum of Rs. 42,04,222/- became payable. The sum which was waived by the Appellant did not form part of the consent decree. It was merely a claim. Such a claim never fructified into any decree and in that view of the matter the plea of Respondent being liable to pay the said amount to the Appellant despite the fact that no decree in relation thereto was passed cannot be countenanced.
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8. It is, however, not in dispute that the judgment debtor has paid the entire amount together with interest in terms of the consent order dated 5.2.2002 passed in the aforementioned execution petition. It is, furthermore, not in dispute that the contempt application filed against the Respondent herein by the Appellant for violating the undertaking by him has ultimately been dismissed15. There cannot, thus, be any doubt that the compromise entered into by and between the parties hereto in the execution proceedings was valid in law. The Appellant moreover does not say that the same was not acted upon. Admittedly, he received the entire amount thereunder, albeit belatedly; but even therefor the Respondent applied for and obtained extension of time to pay the same16. Rightly or wrongly, the learned Single Judge of the Delhi High Court by an order dated 28.8.2002 extended the time to the Respondent herein for paying the decretal amount with interest upto 23.7.2002. The Appellant herein had accepted such amount and that order was not questioned and, thus, the same had attained finality. What was questioned was the liability incurred by the Respondent not being able to adhere to the terms thereof17. If the orders of extension have validly been passed, the order of the court stood complied with. It may be true that the order dated 1.4.2002 was not questioned by the Respondent before this Court but then no direction was issued therein. No judgment was passed. The said order was passed without issuing any notice to the Respondents. The appeal was disposed of as having become infructuous. It was, thus, not final. Thereby, merely a liberty had been granted to the Appellant to agitate his grievances before the learned Single Judge for execution as well as for contempt. By reason of the said order, alone the Appellant could not put forth his claim. The Appellant, thus, cannot take any benefit thereof19. The learned Single Judge in his order dated 13.9.2001 recorded as to how much amount was paid by the Respondent to the Appellant before the execution case was filed. The execution case admittedly was filed for recovery of the balance sum of Rs. 36,59,110/- together with interest at the rate of 15% per annum.20. Not only the Respondent agreed to pay a lump sum interest of Rs. 6,35,082 but also became agreeable to pay 15% interest on the principal amount of the further payment. On calculation, a sum of Rs. 42,04,222/- was found to be payable out of which the judgment debtor had paid a sum of Rs. 10,00,000/- by way of three demand drafts. Appropriating the said amount, the outstanding principal sum came to Rs. 26,69,110. However, the balance amount outstanding as on that day came to Rs. 32,04,222. It was that amount which was to be liquidated by paying instalment of Rs. 6 lakhs each per month. It is in the aforementioned backdrop, the undertaking given before the learned Single Judge of the High Court by the Respondent herein is to be construedThe contention of the learned counsel appearing on behalf of the Appellant is that once a default is committed by the Respondent, the Appellant in terms thereof , would be entitled to execute the balance decree immediately which would mean he would be entitled to a further sum of about Rs. 41 lakhs, which was waived by him.We do not agree. The word decree after the word balance, in our opinion, has been used loosely. The matter might have been different if the amount payable under the compromise entered into by the parties in the execution case would have been less than the amount paid by the Respondent to the Appellant in terms of the consent decree passed originally. It is not so. Whereas under the original decree, a sum of Rs. 41,69,110/- was payable, in terms of the consent order passed in the execution case, a sum of Rs. 42,04,222/- became payable. The sum which was waived by the Appellant did not form part of the consent decree. It was merely a claim. Such a claim never fructified into any decree and in that view of the matter the plea of Respondent being liable to pay the said amount to the Appellant despite the fact that no decree in relation thereto was passed cannot be countenanced
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BENGALURU DEVELOPMENT AUTHORITY Vs. MR. SUDHAKAR HEGDE & ORS | EIA report. Apart from its failure to repudiate a process conducted beyond the prescribed time period stipulated by the MoEF-CC, the SEAC failed to apply its mind to the abject failure of the appellant in conducting the EIA process leading upto the submission of the EIA report for the grant of EC. The SEAC is not required to accept either the EIA report or any clarification sent to it by the project proponent. In the absence of cogent reasons by the SEAC for the recommendation of the grant of EC, the process by its very nature, together with the outcome, stands vitiated. I Courts and the environment 77. Courts today are faced with increasing environmental litigation. A development project that was conceptualized as early as in the year 2005 has surfaced before this Court over 15 years later. The period that has led up to the present litigation has involved a myriad of decisions and processes, each contributing to the delay of a project that was outlined to sub-serve a salient development policy of de-congesting the city. Where project proponents and institutions envisaged under the 2006 Notification abdicate their duty, it is not only the environment that suffers a serious set-back, but also the development of the nation. In the eventual analysis, compliance with the deliberative and streamlined process envisaged for the protection of the environment ensures a symbiotic relationship between the development of the nation and the protection of the environment. 78. The adversarial system is, by its nature, rights based. In the quest for justice, it is not uncommon to postulate a winning side and a losing side. In matters of the environment and development however, there is no trade-off between the two. The protection of the environment is an inherent component of development and growth. Professor Charles E Corker of the University of Washington School of Law said in a speech titled Litigating the Environment – are we overdoing it? (Speech to the Thirteenth Annual Meeting of the Interstate Conference on Water Problems, Portland, Oregon delivered on 29 October, 1970): My answer is yes. We are overdoing our litigation of the environment. I do not mean that there are necessarily too many lawsuits being filed on environmental issues, and that we should somehow cut back – I would not know how, in any case – the number of those suits by ten percent, twenty percent, or fifty percent. I do mean that a disproportionately large share of attention, effort and environmental concern is being focused on lawsuits. Lawsuits cannot accomplish, by themselves, solutions to the most pressing of our environmental problems. As a result, we are in some danger of leaving the most pressing environmental problems unsolved – or even made worse – because the commotion of litigation has persuaded us that something has been accomplished. Professor Corker draws attention to the idea that the environmental protection goes beyond lawsuits. Where the state and statutory bodies fail in their duty to comply with the regulatory framework for the protection of the environment, the courts, acting on actions brought by public spirited individuals are called to invalidate such actions. Equally important however, is to be cautious that environmental litigation alone is not the panacea in the quest to ensure sustainable development. 79. The protection of the environment is premised not only on the active role of courts, but also on robust institutional frameworks within which every stakeholder complies with its duty to ensure sustainable development. A framework of environmental governance committed to the rule of law requires a regime which has effective, accountable and transparent institutions. Equally important is responsive, inclusive, participatory and representative decision making. Environmental governance is founded on the rule of law and emerges from the values of our Constitution. Where the health of the environment is key to preserving the right to life as a constitutionally recognized value under Article 21 of the Constitution, proper structures for environmental decision making find expression in the guarantee against arbitrary action and the affirmative duty of fair treatment under Article 14 of the Constitution. Sustainable development is premised not merely on the redressal of the failure of democratic institutions in the protection of the environment, but ensuring that such failures do not take place. 80. In the present case, as our analysis has indicated, there has been a failure of due process commencing from issuance of the ToR and leading to the grant of the EC for the PRR project. The appellant, as project proponent sought to rely on an expired ToR and proceeded to prepare the final EIA report on the basis of outdated primary data. At the same time, the process leading to the grant of the EC was replete with contradictions on the existence of forest land to be diverted for the project as well as the number of trees required to be felled. 81. The SEAC, as an expert body abdicated its role and function by relying solely on the responses submitted to it by the appellant and failing to comply with its obligations under the OMs issued by the MoEF-CC from time to time. In failing to provide adequate reasons for its recommendation to the SEIAA for the grant of an EC, it failed in its fundamental duty of ensuring both the application of mind to the materials presented to it as well as the furnishing of reasons which it is mandated to do under the 2006 Notification. 82. In this view of the matter, neither the process of decision making nor the decision itself can pass legal muster. Equally, this Court must bear in mind the need to balance the development of infrastructure and the environment. We are of the view that while the need for a road project is factored into the decision- making calculus, equal emphasis should be placed on the prevailing state of the environment. The appeal which was filed before the NGT in 2015, was finally disposed of at a belated stage only in 2019. J Directions | 1[ds]18. The EIA process under the 2006 Notification serves as a balance between development and protection of the environment: there is no trade-off between the two. In laying down a detailed procedure for the grant of an EC, the 2006 notification attempts to bridge the perceived gap between the protection of the environment and development. The basic postulate of the 2006 Notification is that the path which is prescribed for disclosures, studies, gathering data, consultation and appraisal is designed in a manner that would secure decision making which is transparent, responsive and inclusive. While the BDA Act was enacted with the purpose of establishing a development authority for the development of the city of Bangalore and adjacent areas, the 2006 Notification embodies the notion that the development agenda of the nation must be carried out in compliance with norms stipulated for the protection of the environment and its complexities. The BDA Act and the 2006 Notification operate in different fields. It cannot be said that a site is deemed identified for the purpose of triggering the obligations under the 2006 Notification upon the issuance of a preliminary notification under Section 17 of the BDA Act. Adopting a contrary interpretation would lead to the absurd result where a project proponent is obligated to carry out the EIA process for a scheme even prior to the grant of government sanction and a final notification carrying into effect the proposed scheme. In this view of the matter, the prospective site is deemed to be identified only upon the issuance of the final notification under Section 19 after the proposed scheme has received Government sanction under Section 18(3)19. The final notification under Section 19(1) of the BDA Act was issued on 29 June 2007 following the grant of government sanction for the acquisition of the land. This being after the coming into force of the 2006 Notification, the contention urged by the appellant that the project commenced prior to the coming into force of the 2006 Notification cannot be acceptedAdmittedly, in the present case, no notification was issued under either the National Highways Act 1956 or the Karnataka Highways Act 1964 notifying the PRR project as a highway under those enactments. Initial discussions took place at the Government of Karnataka level regarding the transfer of the PRR project to the National Highways Authority of India (NHAI). On 10 January 2018, the Central Road Transport Ministry was informed that the Government of Karnataka had granted its consent to transfer the said project to the NHAI on an as it is basis. However, the Government of Karnataka, by its order dated 24 June 2008, withdrew the proposal to transfer the PRR project to the NHAI29. An amending provision which clarifies the position of law which was considered to be implicit, is construed to have retrospective effect. The position of the retrospective application of clarificatory amendments to notifications is analogous to the position under statutory enactments. In the present case, the Committee appointed by the MoEF-CC clarified that the term highways included expressways and suggested that a suitable amendment be issued to that effect. Based on the report of the Committee, a clarificatory amendment was issued in column 5 of para 7(f) to stipulate that highways include expressways30. Neither the National Highways Act 1956 nor the Karnataka Highways Act 1964 define the term highway. The 2009 amendment to the 2006 Notification is silent on the definition of the term expressway33. The PRR project is expected to be an 8 lane main carriageway highway (4 + 4 bi-directional), along with a 6 lane road service road (3 + 3 bi-directional) having a right of way of 75 meters and total length of 63.5 kms. The EIA report stipulates that the PRR project was conceptualised with the salient purpose of decongesting the traffic in the city and catering to intercity connectivity and intercity traffic. This, it was stated, would significantly reduce pollution intensity and travel time. The EIA report clarifies that the project is designed to cater to high speed vehicular traffic with vehicles plying at speeds of 100 Kms/hr, where possible, and 80Kms/hr in other places34. Moreover, the report stipulates that the project also comprises of ten interchanges and sixteen toll booths. It is stated that access to the road is restricted only to national highways, state highways and major district roads. In this view of the matter, there is no doubt that the PRR project is an expressway falling within the ambit of para 7(f) of the Schedule to the 2006 Notification. The PRR project commenced on the issuance of the final notification under Section 19(1) of the BDA Act on 29 June 2007. Having concluded that the PRR project is an expressway, the appellant as project proponent was under an obligation under para 7(f) of the Schedule to the 2006 Notification to seek a prior EC to implement the project44. In the present case, the ToR was issued on 21 November 2009, prior to the issue of the OM dated 22 March 2010. Hence, by virtue of the notification, the appellant was required to submit the EIA report within four years from the date of the issuance of the ToR i.e before 21 November 2013. The SEAC was under a corresponding obligation to refuse the consideration of any EIA report prepared after the expiry of the ToR. Public hearing was conducted belatedly only on 6 February 2014 and the EIA report prepared thereafter was placed before the SEAC only on 2 August 2014, nearly a year after the ToR had expired. We cannot gloss over the failure of the project proponent to comply with the OMs issued by the MoEF-CC prescribing a time limit for the validity of the ToR. The decision of the SEAC to proceed with the EIA report as well as seek additional information from the project proponent despite the expiry of the ToR suffers from a non-application of mind and is unsustainable45. Moreover, primary data was collected in December 2009 and February 2010. The EIA report was prepared after the public hearing was conducted in February 2014, nearly a year after the primary data had expired in terms of the OMs issued by the MoEF-CC46. Admittedly, the EIA reports prepared in August and October 2014 relied on primary data which was collected between the months of December 2009 and February 2010. The EIA report was prepared prior to the coming into force of the OM dated 7 November 2014 by which the MoEF-CC extended the validity of primary data collected from a period of three years to four years. Even if the benefit under the notification were extended to the appellant, it was duty bound to collect fresh primary data upon the expiry of four years from the date of issuance of the ToR i.e. 21 November 2013. This was evidently not done. This being the case, there is no manner of doubt that the final EIA report prepared on the basis of an expired ToR and primary data was in contravention of the OMs dated 22 March 2010, 22 August 2014 and 7 November 2014 issued by the MoEF-CC and could not form the basis of a validly issued EC47. It is also pertinent to note that a Rapid EIA along with a socio-economic study was prepared by M/s Ramky Enviro Engineers Ltd., the EIA consultant for the PRR project on behalf of the appellant in November 2010. This EIA report relied on primary data collected between the months of December 2009 and February 2010 and analysed the impact of the proposed PRR project on the environment. A perusal of both the 2010 rapid EIA report and the EIA report prepared in October 2014 reveals that the data as well as the analysis of the impact of the proposed PRR project on the environment in the 2014 report is similar to that in the 2010 Rapid EIA report. It appears that the EIA consultant has reproduced verbatim, portions of the Rapid EIA report which was prepared in the year 2010. No effort was taken by the appellant to ensure the fresh collection of data in compliance with its obligations under the OMs issued by the MoEF-CC. In this view of the matter, the contention urged on behalf of the respondents that there was a substantial delay in the carrying out of the EIA process, vitiating the process commends itself for our acceptance49. The questions framed by the SEAC and responses filed by the appellant demonstrate that there existed serious deficiencies in the EIA report which was submitted to the SEAC. This included outdated data on the AAQ air analysis, soil quality, forest land and the number of trees to be planted. The SEAC noted certain shortfalls which concerned limited aspects of the EIA report including the baseline data of hardness of borewell water, soil analysis and forest land. In addition to this, the SEAC directed that certain samples collected were to be marked on the map submitted to the SEAC in the EIA Report. Significantly, the SEAC noted the discrepancy concerning the disclosure of the existence of forest land. This aspect shall be explored in the course of the judgment50. The SEAC framed questions and sought information which was clarificatory in nature and covered specific substantive aspects of the data submitted in the EIA report. The EIA report on the other hand covers a wide range of matters which include terrain, topography, land requirements, terrain classification, wind and noise pattern analysis, air quality analysis, surface and ground water analysis, soil environment analysis, impact of flora and fauna and environmental monitoring plans51. The submission of additional fresh data on a few points raised in the form of a query on behalf of the SEAC does not remedy the general obligation to ensure that the EIA report was prepared within a time period of four years from the date of the issuance of the ToR, relying on primary data that was no older than four years. Merely because some additional information was sought which required the furnishing of additional details and the collection of fresh samples, it cannot be said that such an exercise cures the defect arising from the preparation of an EIA report outside the time period prescribed by the MoEF-CC. Significantly, even at the relevant time when information was sought from the project proponent, both the ToR as well as the primary data upon which the EIA report was prepared was beyond the period of their validity. In such a case, the SEAC, by seeking additional information, has traversed beyond the power conferred upon it under the 2006 Notification52. The SEAC proceeded to recommend to the SEIAA the grant of the EC to the PRR project in contravention of the obligations stipulated under the OMs issued by the MoEF-CC. Significantly, the SEAC considered the final EIA report only at its 121st meeting between 11 – 18 November 2014 when the OM dated 22 August 2014 issued by the MoEF-CC was in force. The SEAC was under an obligation to direct the appellant to conduct the EIA process de novo. The SEAC and the project proponent cannot circumvent the obligation to ensure reliance on contemporary data by seeking additional information beyond the prescribed validity of the ToR and primary data. The SEAC has clearly erred in recommending to the SEIAA the grant of EC despite the non-compliance by the appellant with the prescribed time limit for the preparation of the EIA report55. The MoEF-CC prescribed that it is mandatory for every consultant or PSU acting as an EIA consultant to get themselves registered under the accreditation scheme of the NABET/QCI. Moreover, a consultant would be confined to the sector for which they receive accreditation to ensure expertise and specificity in the carrying out of the EIA process. This was also to ensure the availability of facilities like laboratories. It was stated that a good quality EIA report is a pre- condition for improved decision-making. In the written submissions before this Court, the appellant urged that M/s Ramky Enviro Engineers Pvt. Ltd. was hired in November 2009 upon the issuance of the ToRs prior to the coming into force of the OM dated 2 December 2009. Consequently, there was no obligation to engage an accredited consultant for the preparation of the EIA report. Be that as it may, Ramky Enviro Engineers Pvt. Ltd, Hyderabad was granted the status of a „consultant withvide OM dated 30 June 2011 issued by the MoEF- CC. At the time of the preparation of the EIA report which was submitted to the SEAC, the EIA consultant had received accreditation60. We cannot gloss over the patent contradiction of the appellant as the project proponent in disclosing the existence of forest land to be diverted for the purposes of the PRR project. Despite a clear indication that a total 1.5 hectares of forest land is to be diverted for the purpose of the PRR project, the appellant sought to remedy its failure in seeking the requisite clearances in a post facto manner by stipulating that 25 acres of land available with it is to be given to the forest department in lieu of the forest cover proposed to be diverted for the project. Post facto explanations are inadequate to deal with a failure of due process in the field of environmental governanceIn addition to the admission by the appellant of the contradictions in the EIA report, it sought to substitute the requisite forest clearance with an agreement with the forest department to provide an alternative site for afforestation. This is not sustainable in law. Compliance with the 2006 Notification and other statutory enactments envisaged in the EIA process cannot be reduced to an ad-hoc mechanism where the project proponent seeks to remedy its abject failure to disclose material information and seek the requisites clearances at a belated stage65. Project proponents are duty bound to disclose the existence of forest land and inform the SEAC of the status of their application for forest clearance at the time of submitting the EIA report for the grant of the EC. Where the competent authority has granted the EC for a project, the project proponent is then duty bound to obtain and submit to the competent authority the requisite stage I forest clearance for the proposed project within 12 months or 18 months, as the case may be. Where the project proponent fails to submit the requisite forest clearance within the prescribed time, the EAC or the SEAC are authorised to reexamine the project and decide whether there is a need for the reappraisal of the project. The process envisaged for the disclosure of the forest clearance procedure as well as the submission of the grant of forest clearance sub-serves the purpose of ensuring timely and adequate protection of forest land. Where the EAC or the SEAC is of the opinion that additional documents are required upon the failure of the project proponent to submit the requisite forest clearance within the prescribed time, it may direct that a fresh public hearing be conducted66. The appellant attempted to remedy its contradictory stand on the forest land proposed to be diverted and its failure to obtain the requisite forest clearance by submitting to the SEAC an undertaking to ensure afforestation in an alternate plot of land owned by it in collaboration with the forest department. Such a procedure is neither envisaged under the 2006 Notification nor is in compliance with the notifications issued by the MoEF-CC from time to time. Similarly, the SEAC was under an obligation to ensure that the project proponent had complied with the stipulated procedure for the grant of forest clearance. Instead, the SEAC proceeded on the clarification issued by the appellant in contravention of the OMs dated 31 March 2011, 9 September 2011 and 18 May 2012. Despite the numerous deficiencies that were noted in the minutes of the SEAC meeting, it proceeded to recommend to the SEIAA the grant of EC for the PRR project. The decision of the SEAC to recommend to the SEIAA the grant of the EC, despite the contradictory stand of the appellant as well as its failure to furnish adequate reasons as to why it was exempt from seeking forest clearance, suffers from a non-application of mindThe EIA report prevaricated by recording that the area required for the proposed PRR project has only a few trees. Though the development of infrastructure may necessitate the felling of trees, the process stipulated under the 2006 Notification must be transparent, candid and robust. Hiding significant components of the environment from scrutiny cannot be an acceptable method of securing project approvals. There was a serious lacuna in regard to disclosures and appraisal on this aspect of the controversy69. The EIA process was challenged on the ground that by virtue of a notification dated 12 June 1999, the Central Government acquired certain lands for laying a petroleum pipeline between Mangalore and Bangalore. Petronet MHB Ltd., by its letters dated 7 November 2005 and 21 November 2007 sought to inform the appellant of the potential crossover of the PRR project over the pipelines. The same was reiterated in its meeting with the appellant dated 4 February 2008. Petronet MHB Ltd. was of the opinion that as the pipelines contain hazardous material which is highly inflammable, care should be taken to either relocate parts of the project or ensure that adequate safeguards were put in place72. The reasons furnished by the SEAC must be assessed with reference to the norm that it is required to submit reasons for its recommendation. The analysis by the SEAC is, to say the least, both perfunctory and fails to disclose the reasons upon which it recommended to the SEIAA the grant of EC for the PRR project. The SEAC proceeds merely on the reply furnished by the appellant to the queries raised by the SEAC at its 115th meeting dated 11-12 August, 2014. In this view, the procedure followed by the SEAC suffers from a non- application of mind73. The SEAC is under an obligation to record the specific reasons upon which it recommends the grant of an EC. The requirement that the SEAC must record reasons, besides being mandatory under the 2006 Notification, is of significance for two reasons: (i) The SEAC makes a recommendation to the SEIAA in terms of the 2006 Notification. The regulatory authority has to consider the recommendation and convey its decision to the project proponent. The regulatory authority, as para 8(ii) of the 2006 Notification provides ((ii) The regulatory authority shall normally accept the recommendations of the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned…), shall normally accept the recommendations of the EAC. Thus, the role of the SEAC in the grant of the EC for a proposed project is crucial; and (ii) The grant of an EC is subject to an appeal before the NGT under Section 16 of the NGT Act 2010. The reasons furnished by the SEAC constitute the link upon which the SEIAA either grants or rejects the EC. The reasons form the material which will be considered by the NGT when it considers a challenge to the grant of an EC76. The SEAC, as an expert body, must speak in the manner of an expert. Its remit is to apply itself to every relevant aspect of the project bearing upon the environment and scrutinise the document submitted to it. The SEAC is duty bound to analyse the EIA report. Apart from its failure to repudiate a process conducted beyond the prescribed time period stipulated by the MoEF-CC, the SEAC failed to apply its mind to the abject failure of the appellant in conducting the EIA process leading upto the submission of the EIA report for the grant of EC. The SEAC is not required to accept either the EIA report or any clarification sent to it by the project proponent. In the absence of cogent reasons by the SEAC for the recommendation of the grant of EC, the process by its very nature, together with the outcome, stands vitiated80. In the present case, as our analysis has indicated, there has been a failure of due process commencing from issuance of the ToR and leading to the grant of the EC for the PRR project. The appellant, as project proponent sought to rely on an expired ToR and proceeded to prepare the final EIA report on the basis of outdated primary data. At the same time, the process leading to the grant of the EC was replete with contradictions on the existence of forest land to be diverted for the project as well as the number of trees required to be felled81. The SEAC, as an expert body abdicated its role and function by relying solely on the responses submitted to it by the appellant and failing to comply with its obligations under the OMs issued by the MoEF-CC from time to time. In failing to provide adequate reasons for its recommendation to the SEIAA for the grant of an EC, it failed in its fundamental duty of ensuring both the application of mind to the materials presented to it as well as the furnishing of reasons which it is mandated to do under the 2006 Notification82. In this view of the matter, neither the process of decision making nor the decision itself can pass legal muster. Equally, this Court must bear in mind the need to balance the development of infrastructure and the environment. We are of the view that while the need for a road project is factored into the decision- making calculus, equal emphasis should be placed on the prevailing state of the environment. The appeal which was filed before the NGT in 2015, was finally disposed of at a belated stage only in 2019. | 1 | 19,825 | 3,922 | ### 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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EIA report. Apart from its failure to repudiate a process conducted beyond the prescribed time period stipulated by the MoEF-CC, the SEAC failed to apply its mind to the abject failure of the appellant in conducting the EIA process leading upto the submission of the EIA report for the grant of EC. The SEAC is not required to accept either the EIA report or any clarification sent to it by the project proponent. In the absence of cogent reasons by the SEAC for the recommendation of the grant of EC, the process by its very nature, together with the outcome, stands vitiated. I Courts and the environment 77. Courts today are faced with increasing environmental litigation. A development project that was conceptualized as early as in the year 2005 has surfaced before this Court over 15 years later. The period that has led up to the present litigation has involved a myriad of decisions and processes, each contributing to the delay of a project that was outlined to sub-serve a salient development policy of de-congesting the city. Where project proponents and institutions envisaged under the 2006 Notification abdicate their duty, it is not only the environment that suffers a serious set-back, but also the development of the nation. In the eventual analysis, compliance with the deliberative and streamlined process envisaged for the protection of the environment ensures a symbiotic relationship between the development of the nation and the protection of the environment. 78. The adversarial system is, by its nature, rights based. In the quest for justice, it is not uncommon to postulate a winning side and a losing side. In matters of the environment and development however, there is no trade-off between the two. The protection of the environment is an inherent component of development and growth. Professor Charles E Corker of the University of Washington School of Law said in a speech titled Litigating the Environment – are we overdoing it? (Speech to the Thirteenth Annual Meeting of the Interstate Conference on Water Problems, Portland, Oregon delivered on 29 October, 1970): My answer is yes. We are overdoing our litigation of the environment. I do not mean that there are necessarily too many lawsuits being filed on environmental issues, and that we should somehow cut back – I would not know how, in any case – the number of those suits by ten percent, twenty percent, or fifty percent. I do mean that a disproportionately large share of attention, effort and environmental concern is being focused on lawsuits. Lawsuits cannot accomplish, by themselves, solutions to the most pressing of our environmental problems. As a result, we are in some danger of leaving the most pressing environmental problems unsolved – or even made worse – because the commotion of litigation has persuaded us that something has been accomplished. Professor Corker draws attention to the idea that the environmental protection goes beyond lawsuits. Where the state and statutory bodies fail in their duty to comply with the regulatory framework for the protection of the environment, the courts, acting on actions brought by public spirited individuals are called to invalidate such actions. Equally important however, is to be cautious that environmental litigation alone is not the panacea in the quest to ensure sustainable development. 79. The protection of the environment is premised not only on the active role of courts, but also on robust institutional frameworks within which every stakeholder complies with its duty to ensure sustainable development. A framework of environmental governance committed to the rule of law requires a regime which has effective, accountable and transparent institutions. Equally important is responsive, inclusive, participatory and representative decision making. Environmental governance is founded on the rule of law and emerges from the values of our Constitution. Where the health of the environment is key to preserving the right to life as a constitutionally recognized value under Article 21 of the Constitution, proper structures for environmental decision making find expression in the guarantee against arbitrary action and the affirmative duty of fair treatment under Article 14 of the Constitution. Sustainable development is premised not merely on the redressal of the failure of democratic institutions in the protection of the environment, but ensuring that such failures do not take place. 80. In the present case, as our analysis has indicated, there has been a failure of due process commencing from issuance of the ToR and leading to the grant of the EC for the PRR project. The appellant, as project proponent sought to rely on an expired ToR and proceeded to prepare the final EIA report on the basis of outdated primary data. At the same time, the process leading to the grant of the EC was replete with contradictions on the existence of forest land to be diverted for the project as well as the number of trees required to be felled. 81. The SEAC, as an expert body abdicated its role and function by relying solely on the responses submitted to it by the appellant and failing to comply with its obligations under the OMs issued by the MoEF-CC from time to time. In failing to provide adequate reasons for its recommendation to the SEIAA for the grant of an EC, it failed in its fundamental duty of ensuring both the application of mind to the materials presented to it as well as the furnishing of reasons which it is mandated to do under the 2006 Notification. 82. In this view of the matter, neither the process of decision making nor the decision itself can pass legal muster. Equally, this Court must bear in mind the need to balance the development of infrastructure and the environment. We are of the view that while the need for a road project is factored into the decision- making calculus, equal emphasis should be placed on the prevailing state of the environment. The appeal which was filed before the NGT in 2015, was finally disposed of at a belated stage only in 2019. J Directions
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May 2012. Despite the numerous deficiencies that were noted in the minutes of the SEAC meeting, it proceeded to recommend to the SEIAA the grant of EC for the PRR project. The decision of the SEAC to recommend to the SEIAA the grant of the EC, despite the contradictory stand of the appellant as well as its failure to furnish adequate reasons as to why it was exempt from seeking forest clearance, suffers from a non-application of mindThe EIA report prevaricated by recording that the area required for the proposed PRR project has only a few trees. Though the development of infrastructure may necessitate the felling of trees, the process stipulated under the 2006 Notification must be transparent, candid and robust. Hiding significant components of the environment from scrutiny cannot be an acceptable method of securing project approvals. There was a serious lacuna in regard to disclosures and appraisal on this aspect of the controversy69. The EIA process was challenged on the ground that by virtue of a notification dated 12 June 1999, the Central Government acquired certain lands for laying a petroleum pipeline between Mangalore and Bangalore. Petronet MHB Ltd., by its letters dated 7 November 2005 and 21 November 2007 sought to inform the appellant of the potential crossover of the PRR project over the pipelines. The same was reiterated in its meeting with the appellant dated 4 February 2008. Petronet MHB Ltd. was of the opinion that as the pipelines contain hazardous material which is highly inflammable, care should be taken to either relocate parts of the project or ensure that adequate safeguards were put in place72. The reasons furnished by the SEAC must be assessed with reference to the norm that it is required to submit reasons for its recommendation. The analysis by the SEAC is, to say the least, both perfunctory and fails to disclose the reasons upon which it recommended to the SEIAA the grant of EC for the PRR project. The SEAC proceeds merely on the reply furnished by the appellant to the queries raised by the SEAC at its 115th meeting dated 11-12 August, 2014. In this view, the procedure followed by the SEAC suffers from a non- application of mind73. The SEAC is under an obligation to record the specific reasons upon which it recommends the grant of an EC. The requirement that the SEAC must record reasons, besides being mandatory under the 2006 Notification, is of significance for two reasons: (i) The SEAC makes a recommendation to the SEIAA in terms of the 2006 Notification. The regulatory authority has to consider the recommendation and convey its decision to the project proponent. The regulatory authority, as para 8(ii) of the 2006 Notification provides ((ii) The regulatory authority shall normally accept the recommendations of the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned…), shall normally accept the recommendations of the EAC. Thus, the role of the SEAC in the grant of the EC for a proposed project is crucial; and (ii) The grant of an EC is subject to an appeal before the NGT under Section 16 of the NGT Act 2010. The reasons furnished by the SEAC constitute the link upon which the SEIAA either grants or rejects the EC. The reasons form the material which will be considered by the NGT when it considers a challenge to the grant of an EC76. The SEAC, as an expert body, must speak in the manner of an expert. Its remit is to apply itself to every relevant aspect of the project bearing upon the environment and scrutinise the document submitted to it. The SEAC is duty bound to analyse the EIA report. Apart from its failure to repudiate a process conducted beyond the prescribed time period stipulated by the MoEF-CC, the SEAC failed to apply its mind to the abject failure of the appellant in conducting the EIA process leading upto the submission of the EIA report for the grant of EC. The SEAC is not required to accept either the EIA report or any clarification sent to it by the project proponent. In the absence of cogent reasons by the SEAC for the recommendation of the grant of EC, the process by its very nature, together with the outcome, stands vitiated80. In the present case, as our analysis has indicated, there has been a failure of due process commencing from issuance of the ToR and leading to the grant of the EC for the PRR project. The appellant, as project proponent sought to rely on an expired ToR and proceeded to prepare the final EIA report on the basis of outdated primary data. At the same time, the process leading to the grant of the EC was replete with contradictions on the existence of forest land to be diverted for the project as well as the number of trees required to be felled81. The SEAC, as an expert body abdicated its role and function by relying solely on the responses submitted to it by the appellant and failing to comply with its obligations under the OMs issued by the MoEF-CC from time to time. In failing to provide adequate reasons for its recommendation to the SEIAA for the grant of an EC, it failed in its fundamental duty of ensuring both the application of mind to the materials presented to it as well as the furnishing of reasons which it is mandated to do under the 2006 Notification82. In this view of the matter, neither the process of decision making nor the decision itself can pass legal muster. Equally, this Court must bear in mind the need to balance the development of infrastructure and the environment. We are of the view that while the need for a road project is factored into the decision- making calculus, equal emphasis should be placed on the prevailing state of the environment. The appeal which was filed before the NGT in 2015, was finally disposed of at a belated stage only in 2019.
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Mritunjoy Pani And Another Vs. Narmanda Bala Sasmal And Another | said obligation he purchases the property for himself, he stands in a fiduciary relationship in respect of the property so purchased for the benefit of the owner of the property. This is only another illustration of the well settled principle that a trustee ought not to be permitted to make a profit out of the trust. The same principle is comprised in the latin maxim commodum ex injuria sua memo habere debet, that is, convenience cannot accrue to a party from his own wrong. To put it in other words, no one can be allowed to benefit from his own wrongful act. This Court had occasion to deal with a similar problem in Sidhakamal Nayan v. Bira Naik, AIR 1954 SC 336 . There, as here, a mortgagee in possession of a tenants interest purchased the said interest in execution of a decree for arrears of rent obtained by the landlord. It was contended there, as it is contended here, that the defendant, being a mortgagee in possession, was bound to pay the rent and so cannot take advantage of his own default and deprive the mortgagors of their interest Bose. J., speaking for the Court, observed at p. 337 thus:"The position, in our opinion, is very clear and in the absence of any special statutory provision to the contrary is governed by S. 90. Trusts Act. The defendant is a mortgagee and, apart from special statutes, the only way in which a mortgage can be terminated as between the parties to it is by the act of the parties themselves, by merger or by an order of the Court. The maxim "once a mortgage always a mortgage" applies. Therefore, when the defendant entered upon possession he was there as a mortgagee and being a mortgagee the plaintiffs have a right to redeem unless there is either a contract between the parties or a merger or a special statute to debar them."These observations must have been made on the assumption that it was the duty of the mortgagee to pay the rent and that he made a default in doing so and brought about the auction sale of the holding which ended in the purchase by him. The reference to S. 90 of the Indian Trusts Act supports this assumption.6. Learned counsel for the appellants relied upon the decision of the Judicial Committee in Malkarjun v. Narhari, 27 Ind App 216 in support of his contention that a mortgagor cannot seek the relief of redemption without first getting the sale set aside. There, a mortgaged property was sold in execution of a decree against the mortgagor and the plaintiff neglected or refused to pray that it might be set aside. The Judicial Committee held that an execution sale could not be treated as a nullity if the court which sold it had jurisdiction to do so; and it could not be set aside as irregular without an issue raised for that purpose and investigation made with the judgment creditor as a party thereto. That was not a case where the mortgagee who had an obligation to discharge under the mortgagee deed made a default with the result the property was sold and purchased by the mortgagee himself. The proposition enunciated by the Judicial Committee would apply to a case where the equity of redemption was extinguished by the court sale. This may apply to a case where the mortgagee, after obtaining leave to bid, purchases at a sale in execution of his decree or a decree obtained by a third party. In such a case there may be scope for the argument that the equity of redemption is extinguished and, therefore, the mortgagor cannot get relief till the sale is set aside in the manner known to law. But when the sale is brought about by the default of the mortgagee, the mortgage is not extinguished and the relationship of mortgagor and mortgagee continues to exist and, therefore, there will not be any necessity for setting aside the sale.7. The legal position may be stated thus: (1) The governing principle is "once a mortgage always a mortgage" till the mortgage is terminated by the act of the parties themselves, by merger or by order of the court. (2) Where a mortgagee purchases the equity of redemption in execution of his mortgage decree with the leave of court or in execution of a mortgage or money decree obtained by a third party, the equity of redemption may be extinguished; and, in that event, the mortgagor cannot sue for redemption without getting the sale set aside. (3) Where a mortgagor purchases the mortgaged property by reason of a default committed by him the mortgage is not extinguished and the relationship of mortgagor and mortgagee continues to subsist even thereafter, for his purchases of the equity of redemption is only in trust for the mortgagor.8. Lot us now apply the aforesaid principles to the concurrent findings rived at by the courts below. All the courts concurrently found that in fact possession was delivered to the mortgagee on the basis of the mortgage deed, Ex. B. They have also found that the plea of discharge taken by the appellants was not true. The High Court found that under the mortgage deed the mortgagee had a duty to pay the arrears of rent to the landlord, but he made a default in paying the said arrears. The High Court further held that the sale was the result of manifest dereliction of the duty imposed upon the mortgagee by the very terms of the transaction. The said findings clearly attract the provisions of S. 90 of the Indian Trusts Act. In view of the aforesaid principles, the right to redeem the mortgage is not extinguished and in the eye of law the purchase in the rent sale must be deemed to have been made in trust for the mortgagor. In the premises, the High Court was right in holding that the suit for redemption was maintainable. | 0[ds]These observations must have been made on the assumption that it was the duty of the mortgagee to pay the rent and that he made a default in doing so and brought about the auction sale of the holding which ended in the purchase by him. The reference to S. 90 of the Indian Trusts Act supports this assumption.The legal position may be stated thus: (1) The governing principle is "once a mortgage always a mortgage" till the mortgage is terminated by the act of the parties themselves, by merger or by order of the court. (2) Where a mortgagee purchases the equity of redemption in execution of his mortgage decree with the leave of court or in execution of a mortgage or money decree obtained by a third party, the equity of redemption may be extinguished; and, in that event, the mortgagor cannot sue for redemption without getting the sale set aside. (3) Where a mortgagor purchases the mortgaged property by reason of a default committed by him the mortgage is not extinguished and the relationship of mortgagor and mortgagee continues to subsist even thereafter, for his purchases of the equity of redemption is only in trust for the mortgagor.8.us now apply the aforesaid principles to the concurrent findings rived at by the courts below. All the courts concurrently found that in fact possession was delivered to the mortgagee on the basis of the mortgage deed, Ex. B. They have also found that the plea of discharge taken by the appellants was not true. The High Court found that under the mortgage deed the mortgagee had a duty to pay the arrears of rent to the landlord, but he made a default in paying the said arrears. The High Court further held that the sale was the result of manifest dereliction of the duty imposed upon the mortgagee by the very terms of the transaction. The said findings clearly attract the provisions of S. 90 of the Indian Trusts Act. In view of the aforesaid principles, the right to redeem the mortgage is not extinguished and in the eye of law the purchase in the rent sale must be deemed to have been made in trust for the mortgagor. In the premises, the High Court was right in holding that the suit for redemption was maintainable. | 0 | 2,131 | 423 | ### 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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said obligation he purchases the property for himself, he stands in a fiduciary relationship in respect of the property so purchased for the benefit of the owner of the property. This is only another illustration of the well settled principle that a trustee ought not to be permitted to make a profit out of the trust. The same principle is comprised in the latin maxim commodum ex injuria sua memo habere debet, that is, convenience cannot accrue to a party from his own wrong. To put it in other words, no one can be allowed to benefit from his own wrongful act. This Court had occasion to deal with a similar problem in Sidhakamal Nayan v. Bira Naik, AIR 1954 SC 336 . There, as here, a mortgagee in possession of a tenants interest purchased the said interest in execution of a decree for arrears of rent obtained by the landlord. It was contended there, as it is contended here, that the defendant, being a mortgagee in possession, was bound to pay the rent and so cannot take advantage of his own default and deprive the mortgagors of their interest Bose. J., speaking for the Court, observed at p. 337 thus:"The position, in our opinion, is very clear and in the absence of any special statutory provision to the contrary is governed by S. 90. Trusts Act. The defendant is a mortgagee and, apart from special statutes, the only way in which a mortgage can be terminated as between the parties to it is by the act of the parties themselves, by merger or by an order of the Court. The maxim "once a mortgage always a mortgage" applies. Therefore, when the defendant entered upon possession he was there as a mortgagee and being a mortgagee the plaintiffs have a right to redeem unless there is either a contract between the parties or a merger or a special statute to debar them."These observations must have been made on the assumption that it was the duty of the mortgagee to pay the rent and that he made a default in doing so and brought about the auction sale of the holding which ended in the purchase by him. The reference to S. 90 of the Indian Trusts Act supports this assumption.6. Learned counsel for the appellants relied upon the decision of the Judicial Committee in Malkarjun v. Narhari, 27 Ind App 216 in support of his contention that a mortgagor cannot seek the relief of redemption without first getting the sale set aside. There, a mortgaged property was sold in execution of a decree against the mortgagor and the plaintiff neglected or refused to pray that it might be set aside. The Judicial Committee held that an execution sale could not be treated as a nullity if the court which sold it had jurisdiction to do so; and it could not be set aside as irregular without an issue raised for that purpose and investigation made with the judgment creditor as a party thereto. That was not a case where the mortgagee who had an obligation to discharge under the mortgagee deed made a default with the result the property was sold and purchased by the mortgagee himself. The proposition enunciated by the Judicial Committee would apply to a case where the equity of redemption was extinguished by the court sale. This may apply to a case where the mortgagee, after obtaining leave to bid, purchases at a sale in execution of his decree or a decree obtained by a third party. In such a case there may be scope for the argument that the equity of redemption is extinguished and, therefore, the mortgagor cannot get relief till the sale is set aside in the manner known to law. But when the sale is brought about by the default of the mortgagee, the mortgage is not extinguished and the relationship of mortgagor and mortgagee continues to exist and, therefore, there will not be any necessity for setting aside the sale.7. The legal position may be stated thus: (1) The governing principle is "once a mortgage always a mortgage" till the mortgage is terminated by the act of the parties themselves, by merger or by order of the court. (2) Where a mortgagee purchases the equity of redemption in execution of his mortgage decree with the leave of court or in execution of a mortgage or money decree obtained by a third party, the equity of redemption may be extinguished; and, in that event, the mortgagor cannot sue for redemption without getting the sale set aside. (3) Where a mortgagor purchases the mortgaged property by reason of a default committed by him the mortgage is not extinguished and the relationship of mortgagor and mortgagee continues to subsist even thereafter, for his purchases of the equity of redemption is only in trust for the mortgagor.8. Lot us now apply the aforesaid principles to the concurrent findings rived at by the courts below. All the courts concurrently found that in fact possession was delivered to the mortgagee on the basis of the mortgage deed, Ex. B. They have also found that the plea of discharge taken by the appellants was not true. The High Court found that under the mortgage deed the mortgagee had a duty to pay the arrears of rent to the landlord, but he made a default in paying the said arrears. The High Court further held that the sale was the result of manifest dereliction of the duty imposed upon the mortgagee by the very terms of the transaction. The said findings clearly attract the provisions of S. 90 of the Indian Trusts Act. In view of the aforesaid principles, the right to redeem the mortgage is not extinguished and in the eye of law the purchase in the rent sale must be deemed to have been made in trust for the mortgagor. In the premises, the High Court was right in holding that the suit for redemption was maintainable.
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These observations must have been made on the assumption that it was the duty of the mortgagee to pay the rent and that he made a default in doing so and brought about the auction sale of the holding which ended in the purchase by him. The reference to S. 90 of the Indian Trusts Act supports this assumption.The legal position may be stated thus: (1) The governing principle is "once a mortgage always a mortgage" till the mortgage is terminated by the act of the parties themselves, by merger or by order of the court. (2) Where a mortgagee purchases the equity of redemption in execution of his mortgage decree with the leave of court or in execution of a mortgage or money decree obtained by a third party, the equity of redemption may be extinguished; and, in that event, the mortgagor cannot sue for redemption without getting the sale set aside. (3) Where a mortgagor purchases the mortgaged property by reason of a default committed by him the mortgage is not extinguished and the relationship of mortgagor and mortgagee continues to subsist even thereafter, for his purchases of the equity of redemption is only in trust for the mortgagor.8.us now apply the aforesaid principles to the concurrent findings rived at by the courts below. All the courts concurrently found that in fact possession was delivered to the mortgagee on the basis of the mortgage deed, Ex. B. They have also found that the plea of discharge taken by the appellants was not true. The High Court found that under the mortgage deed the mortgagee had a duty to pay the arrears of rent to the landlord, but he made a default in paying the said arrears. The High Court further held that the sale was the result of manifest dereliction of the duty imposed upon the mortgagee by the very terms of the transaction. The said findings clearly attract the provisions of S. 90 of the Indian Trusts Act. In view of the aforesaid principles, the right to redeem the mortgage is not extinguished and in the eye of law the purchase in the rent sale must be deemed to have been made in trust for the mortgagor. In the premises, the High Court was right in holding that the suit for redemption was maintainable.
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Sunkamma (D) By Lrs Vs. S. Pushparaj (D) By Lrs | no.47 and 53 and the suit was partly decreed by the trial court by judgment dated 12.06.2003 restraining the appellants/defendants from interfering with plaintiffs peaceful possession and enjoyment of site no.53. So far as site no.47, the trial court dismissed the suit. Being aggrieved by the judgment and decree of the trial court, the plaintiff filed R.F.A. No.1100 of 2003 challenging the dismissal of suit in regard to site no.47. Similarly, defendants filed R.F.A. No.1083 of 2003 challenging judgment and decree in respect of site no.53. By common judgment, the High Court allowed the appeal filed by respondent/plaintiff in regard to site no.47 and dismissed the appeal filed by the defendants.3. Case of respondent/plaintiff is that site no.53 was sold by Madhavan Pillai (PW2) to plaintiff by way of a registered sale deed dated 16.06.1975. In support of his claim of ownership and possession in site no.53, plaintiff had produced judgment and decree of the earlier suit in O. S. No.1756 of 1982 dated 26.08.1985 in his favour restraining the defendants from interfering with his peaceful possession of the suit property which was subsequently confirmed by the High Court in R.F.A. No.86 of 1986 by judgment dated 21.02.1986. Based on the evidence of respondent/plaintiff (PW1), Madhavan Pillai (PW2) and the decree in O.S.No.1756 of 1982, the trial court held that the respondent/plaintiff is the owner of the property in site no.53 and granted permanent injunction. Even though defendants challenged the judgment in favour of respondent/plaintiff with respect to site no.53, before the High Court, it was stated before us that there is no serious dispute between the parties with respect to site no.53.4. Site No.47: So far as site no.47 is concerned, Plaintiff had produced an agreement of sale dated 09.09.1986, by virtue of which Madhavan Pillai (PW2) agreed to sell site no.47 to the plaintiff for a consideration of Rs. 48,000/- and the entire sale consideration of Rs. 48,000/- had been paid to Madhavan Pillai. But plaintiff stated that due to ban of registration of revenue sites, Madhavan Pillai (PW2) executed a registered general power of attorney dated 03.05.1988 in favour of plaintiff and that pursuant to the general power of attorney, plaintiff has been in possession and enjoyment of site no.47. As plaintiffs case was not supported by a registered sale deed, the trial court declined to accept the claim of plaintiff with respect to site no.475. In appeal, the High Court noted that the trial court failed to take into consideration the testimony of Madhavan Pillai (PW2) wherein he deposed to the effect that he agreed to sell site no.47 to plaintiff and that he had executed a registered general power of attorney dated 03.05.1988. PW2-Madhavan Pillai had also stated that the sale deed could not be executed as there was a ban of registration of revenue sites. Madhavan Pillai stated that in 39 guntas of land which he had purchased from the defendants, he formed a layout, 20 feet road was proposed in between sites no.53 and 47. PW2 further stated that since Bangalore Development Authority (BDA) formed the road in the western portion of Sy. No.255, the road in between sites no.47 and 53 was given up and the revised layout plan for 20 feet road was formed (Ex.P9). Madhavan Pillai stated that respondent/plaintiff is in possession of sites no.47 and 53. Based on the evidence of PWs 1 and 2 and the general power of attorney (Ex.P7), the High Court held that the plaintiff is in possession of site no.47 and granted permanent injunction in favour of the plaintiff.6. Though the appellants/defendants disputed the title and possession of the plaintiff over site no.47, the defendants have merely averred that the documents relied upon by the plaintiff that is agreement of sale (09.09.1986) and general power of attorney (03.05.1988) are forged and not acceptable. Nothing further has been elicited from PW2 to show that he had no right to sell site no.47 to the plaintiff. The defendants went to the extent of denying the identity of Madhavan PIllai (PW2). Be it noted, the plaintiffs suit O.S.No.424 of 1995 was only for permanent injunction in which the plaintiff is only required to prove that he is in lawful possession of the suit property. The High Court based upon the general power of attorney and the evidence of PW2 held in favour of plaintiff that he is in possession of site no.47. These findings of fact cannot be said to be perverse warranting interference.7. Contention of appellants/defendants is that site no.47 is not covered under the sale deed in favour of Madhavan Pillai (21.04.1975). Further contention of appellants is that merely on the basis of registered power of attorney, title and ownership of immovable property (site no.47) could not have been transferred to the plaintiff. We refrain from going into the merits of this contention for two reasons. Firstly, since the present suit and further appeal thereon emanates from the suit pertaining to permanent injunction where the touchstone upon which the suit has to be decided is "lawful possession" and not "ownership". Secondly, appellants/defendants have filed separate suit in O.S.No.5327 of 1995 against Madhavan Pillai and the respondents, for a declaration that appellants are the owners of B Schedule property thereon (which includes site no.47) and other reliefs. As seen from the additional documents filed before us, the said suit has been dismissed on 17.12.2016 against which an appeal is said to have been filed and pending. Therefore, we deem it appropriate, not to express any opinion on the question of title and ownership of respondent/plaintiff on the basis of registered general power of attorney.8. The present appeal arises out of the suit filed by plaintiff/respondent for permanent injunction and the courts below rightly decided the same on the question of possession. Based on the general power of attorney and the evidence of PWs 1 and 2, the High Court rightly held that the plaintiff is in possession and we do not find any reason warranting interference. | 0[ds]8. The present appeal arises out of the suit filed by plaintiff/respondent for permanent injunction and the courts below rightly decided the same on the question of possession. Based on the general power of attorney and the evidence of PWs 1 and 2, the High Court rightly held that the plaintiff is in possession and we do not find any reason warranting interference. | 0 | 1,322 | 71 | ### 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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no.47 and 53 and the suit was partly decreed by the trial court by judgment dated 12.06.2003 restraining the appellants/defendants from interfering with plaintiffs peaceful possession and enjoyment of site no.53. So far as site no.47, the trial court dismissed the suit. Being aggrieved by the judgment and decree of the trial court, the plaintiff filed R.F.A. No.1100 of 2003 challenging the dismissal of suit in regard to site no.47. Similarly, defendants filed R.F.A. No.1083 of 2003 challenging judgment and decree in respect of site no.53. By common judgment, the High Court allowed the appeal filed by respondent/plaintiff in regard to site no.47 and dismissed the appeal filed by the defendants.3. Case of respondent/plaintiff is that site no.53 was sold by Madhavan Pillai (PW2) to plaintiff by way of a registered sale deed dated 16.06.1975. In support of his claim of ownership and possession in site no.53, plaintiff had produced judgment and decree of the earlier suit in O. S. No.1756 of 1982 dated 26.08.1985 in his favour restraining the defendants from interfering with his peaceful possession of the suit property which was subsequently confirmed by the High Court in R.F.A. No.86 of 1986 by judgment dated 21.02.1986. Based on the evidence of respondent/plaintiff (PW1), Madhavan Pillai (PW2) and the decree in O.S.No.1756 of 1982, the trial court held that the respondent/plaintiff is the owner of the property in site no.53 and granted permanent injunction. Even though defendants challenged the judgment in favour of respondent/plaintiff with respect to site no.53, before the High Court, it was stated before us that there is no serious dispute between the parties with respect to site no.53.4. Site No.47: So far as site no.47 is concerned, Plaintiff had produced an agreement of sale dated 09.09.1986, by virtue of which Madhavan Pillai (PW2) agreed to sell site no.47 to the plaintiff for a consideration of Rs. 48,000/- and the entire sale consideration of Rs. 48,000/- had been paid to Madhavan Pillai. But plaintiff stated that due to ban of registration of revenue sites, Madhavan Pillai (PW2) executed a registered general power of attorney dated 03.05.1988 in favour of plaintiff and that pursuant to the general power of attorney, plaintiff has been in possession and enjoyment of site no.47. As plaintiffs case was not supported by a registered sale deed, the trial court declined to accept the claim of plaintiff with respect to site no.475. In appeal, the High Court noted that the trial court failed to take into consideration the testimony of Madhavan Pillai (PW2) wherein he deposed to the effect that he agreed to sell site no.47 to plaintiff and that he had executed a registered general power of attorney dated 03.05.1988. PW2-Madhavan Pillai had also stated that the sale deed could not be executed as there was a ban of registration of revenue sites. Madhavan Pillai stated that in 39 guntas of land which he had purchased from the defendants, he formed a layout, 20 feet road was proposed in between sites no.53 and 47. PW2 further stated that since Bangalore Development Authority (BDA) formed the road in the western portion of Sy. No.255, the road in between sites no.47 and 53 was given up and the revised layout plan for 20 feet road was formed (Ex.P9). Madhavan Pillai stated that respondent/plaintiff is in possession of sites no.47 and 53. Based on the evidence of PWs 1 and 2 and the general power of attorney (Ex.P7), the High Court held that the plaintiff is in possession of site no.47 and granted permanent injunction in favour of the plaintiff.6. Though the appellants/defendants disputed the title and possession of the plaintiff over site no.47, the defendants have merely averred that the documents relied upon by the plaintiff that is agreement of sale (09.09.1986) and general power of attorney (03.05.1988) are forged and not acceptable. Nothing further has been elicited from PW2 to show that he had no right to sell site no.47 to the plaintiff. The defendants went to the extent of denying the identity of Madhavan PIllai (PW2). Be it noted, the plaintiffs suit O.S.No.424 of 1995 was only for permanent injunction in which the plaintiff is only required to prove that he is in lawful possession of the suit property. The High Court based upon the general power of attorney and the evidence of PW2 held in favour of plaintiff that he is in possession of site no.47. These findings of fact cannot be said to be perverse warranting interference.7. Contention of appellants/defendants is that site no.47 is not covered under the sale deed in favour of Madhavan Pillai (21.04.1975). Further contention of appellants is that merely on the basis of registered power of attorney, title and ownership of immovable property (site no.47) could not have been transferred to the plaintiff. We refrain from going into the merits of this contention for two reasons. Firstly, since the present suit and further appeal thereon emanates from the suit pertaining to permanent injunction where the touchstone upon which the suit has to be decided is "lawful possession" and not "ownership". Secondly, appellants/defendants have filed separate suit in O.S.No.5327 of 1995 against Madhavan Pillai and the respondents, for a declaration that appellants are the owners of B Schedule property thereon (which includes site no.47) and other reliefs. As seen from the additional documents filed before us, the said suit has been dismissed on 17.12.2016 against which an appeal is said to have been filed and pending. Therefore, we deem it appropriate, not to express any opinion on the question of title and ownership of respondent/plaintiff on the basis of registered general power of attorney.8. The present appeal arises out of the suit filed by plaintiff/respondent for permanent injunction and the courts below rightly decided the same on the question of possession. Based on the general power of attorney and the evidence of PWs 1 and 2, the High Court rightly held that the plaintiff is in possession and we do not find any reason warranting interference.
### Response:
0
### Explanation:
8. The present appeal arises out of the suit filed by plaintiff/respondent for permanent injunction and the courts below rightly decided the same on the question of possession. Based on the general power of attorney and the evidence of PWs 1 and 2, the High Court rightly held that the plaintiff is in possession and we do not find any reason warranting interference.
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THE PEERLESS GEN.FIN AND INVESTMENT COMPANY LIMITED Vs. COMMNR. OF INCOME TAX | on similar facts held that the deposits were capital receipts and not revenue receipts (vide paragraphs 67 & 68 of the aforesaid judgment). That case also pertains to a finance company which used to collect deposits, and credited part of its deposits to the profit and loss account, as in the present case. Hence, the ratio of the said decision, in our opinion, applies to this case also.It is well settled in income-tax law that book keeping entries are not decisive or determinative of the true nature of the entries as held by the Supreme Court in CIT vs. India Discount Co. Ltd. [1970] 75 ITR 191 and in Godhra Electricity Co. Ltd v. CIT [1997] 225 ITR 746 (SC) . It has been held in those decisions that the court has to see the true nature of the receipts and not go only by the entry in the books of account.We agree with the Tribunal that these deposits are really capital receipts and not revenue receipts. In Chowringhee Sales Bureau P. Ltd. V. CIT [1973] 87 ITR 542 (SC) which was followed in Sinclair Murray and Co. P. Ltd. V. CIT [1974] 97 ITR 615 , the Supreme Court observed (page 619):?It is the true nature and quality of the receipt and not the head under which it is entered in the account books that would prove decisive. If a receipt is a trading receipt, the fact that it is not so shown in the account books of the assessee would not prevent the assessing authority from treating it as trading receipt. It has been held by the Supreme court that the primary liability and onus is on the Department to prove that a certain receipt is liable to be taxed vide Parimisetti Seetharamamma v. CIT [1965] 57 ITR 532 (SC). Sri Chopra then relied on the decision of the Supreme Court in CIT v. Lakshmi Vilas Bank Ltd. [1996] 220 ITR 305. In our opinion that decision is also distinguishable because in that case the deposit was forfeited and the result of the transaction was that the bank became full owner of the security and the amount lying in deposit with it became its own money. In the present case there is no such finding that the deposit was forfeited or that at the end of the transaction the security deposit became the property of the assessee or that changed from a capital receipt to a revenue receipt. Hence, that decision is clearly distinguishable.? This Court, on 21.07.2015, in appeal against the said judgment held as under: "After reading of the decision of the High Court, we find that the High Court has rightly relied upon the judgment of this Court in ?Peerless General Finance & Investment Co. Ltd. & Anr. v. Reserve Bank of India? (1992) 2 SCC 343. Since the case is squarely covered by the judgment, we do not find any merit in these appeals and petitions which are accordingly, dismissed.? It is also correct to state that there can be no estoppel against a settled position in law [See Commissioner of Income-Tax, Bombay vs. C. Parakh & Co. (India) Ltd. 29 ITR 661 at 665 and Commissioner of Income-Tax, Madras vs. V.MR.P. Firm, Muar (1965) 56 ITR 67. 11. Shri Arijit Prasad, learned senior counsel, appearing on behalf of the Revenue, however, strongly relied upon the observations in Ram Janki Devi and another v. M/s. Juggilal Kamlapat, (1971) 1 SCC 477. In particular, he relied upon paragraph 12 of the judgment which reads as follows:- ?The case of a deposit is something more than a mere loan of money. It will depend on the facts of each case whether the transaction is clothed with the character of a deposit of money. The surrounding circumstances, the relationship and character of the transaction and the manner in which parties treated the transaction will throw light on the true form of the transaction.? 12. This judgment has no direct relevance to the facts of the present case. The vexed question in that case was as to whether a particular transaction in question was a loan or a deposit. It was in that context that paragraph 12 laid down that whether a loan of money could be called a deposit, would depend upon the facts of each case, having regard to the surrounding circumstances etc. In the present case, there is no such question raised by Revenue. The question raised is completely different, and as has been held by us above, the character of the transaction being clearly a capital receipt in the hands of the assessee cannot possibly be taxed as income in the assessee?s hands. 13. Shri Prasad then relied upon the judgment of this Court in Poona Electric Supply Co. Ltd., Bombay v. Commissioner of Income-tax, Bombay City I, Bombay, AIR 1966 SC 30 . In particular, he relied upon a quotation from a Bombay High Court judgment which was approved by this Court, as follows: - ?The principle of real income is not to be subordinated as to amount virtually to a negation of it when a surrender or concession or rebate in respect of managing agency commission is made, agreed to or given on grounds of commercial expediency, simply because it takes place some time after the close of an accounting year. In examining any transaction and situation of this nature the court would have more regard to the reality and specialty of the situation rather than the purely theoretical or doctrinaire aspect of it. It will lay greater emphasis on the business aspect of the matter viewed as a whole when that can be done without disregarding statutory language.? The ?theoretical? aspect of the present transaction is the fact that the assessee treated subscription receipts as income. The reality of the situation, however, is that the business aspect of the matter, when viewed as a whole, leads inevitably to the conclusion that the receipts in question were capital receipts and not income. | 1[ds]8. What is clear, even on general principle, on the facts of this case, is that subscriptions were received in the years in question from the public at large under a collective investment scheme, and these subscriptions were never at any point of time forfeited. Indeed, the supplementary affidavit filed before this Court states this as a fact, being based on an interim order of the High Court dated 03.09.1979 which obtained during the assessment years in question. This being the case, and surrendered certificates not being the subject-matter of the appeal before us, it is clear that even on general principles, deposits by way of amounts pursuant to these investment schemes made by subscribers which have never been forfeited can only be stated to be capital receipts.While it is true that there was no direct focus of the Court on whether subscriptions so received are capital or revenue in nature, we may still advert to the fact that this Court has also, on general principles, held that such subscriptions would be capital receipts, and if they were treated to be income, this would violate the Companies Act. It is, therefore, incorrect to state, as has been stated by the High Court, that the decision in Peerless General Finance and Investment Co. Limited (supra) must be read as not having laid down any absolute proposition of law that all receipts of subscription at the hands of the assessee for these years must be treated as capital receipts. We reiterate that though the Court?s focus was not directly on this, yet, a pronouncement by this Court, even if it cannot be strictly called the ratio decidendi of the judgment, would certainly be binding on the High Court. Even otherwise, as we have stated, it is clear that on general principles also such subscription cannot possibly be treated as income. Mr. Ganesh is right in stating that in cases of this nature it would not be possible to go only by the treatment of such subscriptions in the hands of accounts of the assessee itself.We agree with the Tribunal that these deposits are really capital receipts and not revenue receipts.is also correct to state that there can be no estoppel against a settled position in law [See Commissioner of Income-Tax, Bombay vs. C. Parakh & Co. (India) Ltd. 29 ITR 661 at 665 and Commissioner of Income-Tax, Madras vs. V.MR.P. Firm, Muar (1965) 56 ITR 67. This judgment has no direct relevance to the facts of the present case. The vexed question in that case was as to whether a particular transaction in question was a loan or a deposit. It was in that context that paragraph 12 laid down that whether a loan of money could be called a deposit, would depend upon the facts of each case, having regard to the surrounding circumstances etc. In the present case, there is no such question raised by Revenue. The question raised is completely different, and as has been held by us above, the character of the transaction being clearly a capital receipt in the hands of the assessee cannot possibly be taxed as income in the assessee?s?theoretical? aspect of the present transaction is the fact that the assessee treated subscription receipts as income. The reality of the situation, however, is that the business aspect of the matter, when viewed as a whole, leads inevitably to the conclusion that the receipts in question were capital receipts and not income. | 1 | 4,237 | 648 | ### 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:
on similar facts held that the deposits were capital receipts and not revenue receipts (vide paragraphs 67 & 68 of the aforesaid judgment). That case also pertains to a finance company which used to collect deposits, and credited part of its deposits to the profit and loss account, as in the present case. Hence, the ratio of the said decision, in our opinion, applies to this case also.It is well settled in income-tax law that book keeping entries are not decisive or determinative of the true nature of the entries as held by the Supreme Court in CIT vs. India Discount Co. Ltd. [1970] 75 ITR 191 and in Godhra Electricity Co. Ltd v. CIT [1997] 225 ITR 746 (SC) . It has been held in those decisions that the court has to see the true nature of the receipts and not go only by the entry in the books of account.We agree with the Tribunal that these deposits are really capital receipts and not revenue receipts. In Chowringhee Sales Bureau P. Ltd. V. CIT [1973] 87 ITR 542 (SC) which was followed in Sinclair Murray and Co. P. Ltd. V. CIT [1974] 97 ITR 615 , the Supreme Court observed (page 619):?It is the true nature and quality of the receipt and not the head under which it is entered in the account books that would prove decisive. If a receipt is a trading receipt, the fact that it is not so shown in the account books of the assessee would not prevent the assessing authority from treating it as trading receipt. It has been held by the Supreme court that the primary liability and onus is on the Department to prove that a certain receipt is liable to be taxed vide Parimisetti Seetharamamma v. CIT [1965] 57 ITR 532 (SC). Sri Chopra then relied on the decision of the Supreme Court in CIT v. Lakshmi Vilas Bank Ltd. [1996] 220 ITR 305. In our opinion that decision is also distinguishable because in that case the deposit was forfeited and the result of the transaction was that the bank became full owner of the security and the amount lying in deposit with it became its own money. In the present case there is no such finding that the deposit was forfeited or that at the end of the transaction the security deposit became the property of the assessee or that changed from a capital receipt to a revenue receipt. Hence, that decision is clearly distinguishable.? This Court, on 21.07.2015, in appeal against the said judgment held as under: "After reading of the decision of the High Court, we find that the High Court has rightly relied upon the judgment of this Court in ?Peerless General Finance & Investment Co. Ltd. & Anr. v. Reserve Bank of India? (1992) 2 SCC 343. Since the case is squarely covered by the judgment, we do not find any merit in these appeals and petitions which are accordingly, dismissed.? It is also correct to state that there can be no estoppel against a settled position in law [See Commissioner of Income-Tax, Bombay vs. C. Parakh & Co. (India) Ltd. 29 ITR 661 at 665 and Commissioner of Income-Tax, Madras vs. V.MR.P. Firm, Muar (1965) 56 ITR 67. 11. Shri Arijit Prasad, learned senior counsel, appearing on behalf of the Revenue, however, strongly relied upon the observations in Ram Janki Devi and another v. M/s. Juggilal Kamlapat, (1971) 1 SCC 477. In particular, he relied upon paragraph 12 of the judgment which reads as follows:- ?The case of a deposit is something more than a mere loan of money. It will depend on the facts of each case whether the transaction is clothed with the character of a deposit of money. The surrounding circumstances, the relationship and character of the transaction and the manner in which parties treated the transaction will throw light on the true form of the transaction.? 12. This judgment has no direct relevance to the facts of the present case. The vexed question in that case was as to whether a particular transaction in question was a loan or a deposit. It was in that context that paragraph 12 laid down that whether a loan of money could be called a deposit, would depend upon the facts of each case, having regard to the surrounding circumstances etc. In the present case, there is no such question raised by Revenue. The question raised is completely different, and as has been held by us above, the character of the transaction being clearly a capital receipt in the hands of the assessee cannot possibly be taxed as income in the assessee?s hands. 13. Shri Prasad then relied upon the judgment of this Court in Poona Electric Supply Co. Ltd., Bombay v. Commissioner of Income-tax, Bombay City I, Bombay, AIR 1966 SC 30 . In particular, he relied upon a quotation from a Bombay High Court judgment which was approved by this Court, as follows: - ?The principle of real income is not to be subordinated as to amount virtually to a negation of it when a surrender or concession or rebate in respect of managing agency commission is made, agreed to or given on grounds of commercial expediency, simply because it takes place some time after the close of an accounting year. In examining any transaction and situation of this nature the court would have more regard to the reality and specialty of the situation rather than the purely theoretical or doctrinaire aspect of it. It will lay greater emphasis on the business aspect of the matter viewed as a whole when that can be done without disregarding statutory language.? The ?theoretical? aspect of the present transaction is the fact that the assessee treated subscription receipts as income. The reality of the situation, however, is that the business aspect of the matter, when viewed as a whole, leads inevitably to the conclusion that the receipts in question were capital receipts and not income.
### Response:
1
### Explanation:
8. What is clear, even on general principle, on the facts of this case, is that subscriptions were received in the years in question from the public at large under a collective investment scheme, and these subscriptions were never at any point of time forfeited. Indeed, the supplementary affidavit filed before this Court states this as a fact, being based on an interim order of the High Court dated 03.09.1979 which obtained during the assessment years in question. This being the case, and surrendered certificates not being the subject-matter of the appeal before us, it is clear that even on general principles, deposits by way of amounts pursuant to these investment schemes made by subscribers which have never been forfeited can only be stated to be capital receipts.While it is true that there was no direct focus of the Court on whether subscriptions so received are capital or revenue in nature, we may still advert to the fact that this Court has also, on general principles, held that such subscriptions would be capital receipts, and if they were treated to be income, this would violate the Companies Act. It is, therefore, incorrect to state, as has been stated by the High Court, that the decision in Peerless General Finance and Investment Co. Limited (supra) must be read as not having laid down any absolute proposition of law that all receipts of subscription at the hands of the assessee for these years must be treated as capital receipts. We reiterate that though the Court?s focus was not directly on this, yet, a pronouncement by this Court, even if it cannot be strictly called the ratio decidendi of the judgment, would certainly be binding on the High Court. Even otherwise, as we have stated, it is clear that on general principles also such subscription cannot possibly be treated as income. Mr. Ganesh is right in stating that in cases of this nature it would not be possible to go only by the treatment of such subscriptions in the hands of accounts of the assessee itself.We agree with the Tribunal that these deposits are really capital receipts and not revenue receipts.is also correct to state that there can be no estoppel against a settled position in law [See Commissioner of Income-Tax, Bombay vs. C. Parakh & Co. (India) Ltd. 29 ITR 661 at 665 and Commissioner of Income-Tax, Madras vs. V.MR.P. Firm, Muar (1965) 56 ITR 67. This judgment has no direct relevance to the facts of the present case. The vexed question in that case was as to whether a particular transaction in question was a loan or a deposit. It was in that context that paragraph 12 laid down that whether a loan of money could be called a deposit, would depend upon the facts of each case, having regard to the surrounding circumstances etc. In the present case, there is no such question raised by Revenue. The question raised is completely different, and as has been held by us above, the character of the transaction being clearly a capital receipt in the hands of the assessee cannot possibly be taxed as income in the assessee?s?theoretical? aspect of the present transaction is the fact that the assessee treated subscription receipts as income. The reality of the situation, however, is that the business aspect of the matter, when viewed as a whole, leads inevitably to the conclusion that the receipts in question were capital receipts and not income.
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General Officer Commanding & Another Vs. CBI & Another | Central Govt. Such matter is being governed by the provisions of Section 475 Cr.P.C. read with the provisions of the J & K Criminal Courts and court-martial (Adjustment of Jurisdiction) Rules, 1983. Rule 6 of the said Rules, 1983, provides that in case the accused has been handed over to the Army authorities to be tried by a court-martial, the proceedings of the criminal court shall remain stayed. Rule 7 thereof, further provides that when an accused has been delivered by the criminal court to the Army authorities, the authority concerned shall inform the criminal court whether the accused has been tried by a court-martial or other effectual proceedings have been taken or ordered to be taken against him. If the Magistrate is informed that the accused has not been tried or other effectual proceedings have not been taken, the Magistrate shall report the circumstances to the State Government which may, in consultation with the Central Government, take appropriate steps to ensure that the accused person is dealt with in accordance with law. 59. Constitution Bench of this Court in Som Datt Datta v. Union of India & Ors., AIR 1969 SC 414 , held that option as to whether the accused be tried by a criminal court or court-martial could be exercised after the police has completed the investigation and submitted the chargesheet. Therefore, for making such an option, the Army Authorities do not have to wait till the criminal court takes cognizance of the offence or frames the charges, which commences the trial. 60. In Delhi Special Police Establishment, New Delhi v. Lt. Col. S.K. Loraiya, AIR 1972 SC 2548 , a similar view has been reiterated by this Court observing that relevant Rules require that an option be given as to whether the accused be tried by a court-martial or by ordinary criminal court. The Magistrate has to give notice to the Commanding Officer and is not to make any order of conviction or acquittal or frame charges or commit the accused until the expiry of 7 days from the service of notice. 61. In Balbir Singh & Anr. v. State of Punjab, (1995) 1 SCC 90 , this Court dealt with the provisions of the Air Force Act, 1950; provisions of Cr.P.C. and criminal court and court-martial (Adjustment of Jurisdiction) Rules, 1952 and reiterated the same view relying upon its earlier judgment in Ram Sarup v. Union of India & Anr., AIR 1965 SC 247 , wherein it has been held that there could be variety of circumstances which may influence the justification as to whether the offender be tried by a court-martial or by criminal court, and therefore, it becomes inevitable that the discretion to make such a choice be left to the Military Officers. Military Officer is to be guided by considerations of the exigencies of the service, maintenance of discipline in the Army, speedier trial, the nature of the offence and the persons against whom the offence is committed. 62. Thus, the law on the issue is clear that under Section 125 of the Army Act, the stage of making option to try an accused by a court- martial and not by the criminal court is after filing of the chargesheet and before taking cognizance or framing of the charges. 63. A question has further been raised by learned counsel for the appellant that the Act 1990 is a special Act and Section 7 thereof, provides full protection to the persons who are subject to the Army Act from any kind of suit, prosecution and legal proceedings unless the sanction of the Central Government is obtained . Thus, in such a fact- situation, even if the Commanding Officer exercises his discretion and opts that the accused would be tried by the court-martial, the proceedings of court-martial cannot be taken unless the Central Government accords sanction. 64. Learned counsel for the CBI and interveners have opposed the submission contending that in case the accused are tried in the court- martial, sanction is not required at all. The provisions of the Act 1990 would apply in consonance with the provisions of the Army Act. Section 7 of the Act 1990 does not contain non-obstante clause. Therefore, once the option is made that accused is to be tried by a court-martial, further proceedings would be in accordance with the provisions of Section 70 of the Army Act and for that purpose, sanction of the Central Government is not required. The court-martial has been defined under Section 3(VII) of the Army Act which is definitely different from the suit and prosecution as explained hereinabove, and has not been referred to in the Act 1990. 65. Undoubtedly, the court-martial proceedings are akin to criminal prosecution and this fact has been dealt with elaborately by this Court in Union of India & Ors. v. Major A. Hussain, AIR 1998 SC 577 . However, once the matter stands transferred to the Army for conducting a court-martial, the court-martial has to be as per the provisions of the Army Act. The Army Act does not provide for sanction of the Central Government. Thus, we do not find any force in the contention raised by the appellant and the same is rejected. 66. Sum up:i) The conjoint reading of the relevant statutory provisions and rules make it clear that the term “institution” contained in Section 7 of the Act 1990 means taking cognizance of the offence and not mere presentation of the chargesheet by the investigating agency.ii) The competent Army Authority has to exercise his discretion to opt as to whether the trial would be by a court-martial or criminal court after filing of the chargesheet and not after the cognizance of the offence is taken by the court. iii) Facts of this case require sanction of the Central Government to proceed with the criminal prosecution/trial.iv) In case option is made to try the accused by a court-martial, sanction of the Central Government is not required.67. In view of the above, the | 1[ds]66. Sum up:i) The conjoint reading of the relevant statutory provisions and rules make it clear that the termcontained in Section 7 of the Act 1990 means taking cognizance of the offence and not mere presentation of the chargesheet by the investigating agency.ii) The competent Army Authority has to exercise his discretion to opt as to whether the trial would be by a court-martial or criminal court after filing of the chargesheet and not after the cognizance of the offence is taken by theFacts of this case require sanction of the Central Government to proceed with the criminal prosecution/trial.iv) In case option is made to try the accused by a court-martial, sanction of the Central Government is not required. | 1 | 14,325 | 131 | ### 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:
Central Govt. Such matter is being governed by the provisions of Section 475 Cr.P.C. read with the provisions of the J & K Criminal Courts and court-martial (Adjustment of Jurisdiction) Rules, 1983. Rule 6 of the said Rules, 1983, provides that in case the accused has been handed over to the Army authorities to be tried by a court-martial, the proceedings of the criminal court shall remain stayed. Rule 7 thereof, further provides that when an accused has been delivered by the criminal court to the Army authorities, the authority concerned shall inform the criminal court whether the accused has been tried by a court-martial or other effectual proceedings have been taken or ordered to be taken against him. If the Magistrate is informed that the accused has not been tried or other effectual proceedings have not been taken, the Magistrate shall report the circumstances to the State Government which may, in consultation with the Central Government, take appropriate steps to ensure that the accused person is dealt with in accordance with law. 59. Constitution Bench of this Court in Som Datt Datta v. Union of India & Ors., AIR 1969 SC 414 , held that option as to whether the accused be tried by a criminal court or court-martial could be exercised after the police has completed the investigation and submitted the chargesheet. Therefore, for making such an option, the Army Authorities do not have to wait till the criminal court takes cognizance of the offence or frames the charges, which commences the trial. 60. In Delhi Special Police Establishment, New Delhi v. Lt. Col. S.K. Loraiya, AIR 1972 SC 2548 , a similar view has been reiterated by this Court observing that relevant Rules require that an option be given as to whether the accused be tried by a court-martial or by ordinary criminal court. The Magistrate has to give notice to the Commanding Officer and is not to make any order of conviction or acquittal or frame charges or commit the accused until the expiry of 7 days from the service of notice. 61. In Balbir Singh & Anr. v. State of Punjab, (1995) 1 SCC 90 , this Court dealt with the provisions of the Air Force Act, 1950; provisions of Cr.P.C. and criminal court and court-martial (Adjustment of Jurisdiction) Rules, 1952 and reiterated the same view relying upon its earlier judgment in Ram Sarup v. Union of India & Anr., AIR 1965 SC 247 , wherein it has been held that there could be variety of circumstances which may influence the justification as to whether the offender be tried by a court-martial or by criminal court, and therefore, it becomes inevitable that the discretion to make such a choice be left to the Military Officers. Military Officer is to be guided by considerations of the exigencies of the service, maintenance of discipline in the Army, speedier trial, the nature of the offence and the persons against whom the offence is committed. 62. Thus, the law on the issue is clear that under Section 125 of the Army Act, the stage of making option to try an accused by a court- martial and not by the criminal court is after filing of the chargesheet and before taking cognizance or framing of the charges. 63. A question has further been raised by learned counsel for the appellant that the Act 1990 is a special Act and Section 7 thereof, provides full protection to the persons who are subject to the Army Act from any kind of suit, prosecution and legal proceedings unless the sanction of the Central Government is obtained . Thus, in such a fact- situation, even if the Commanding Officer exercises his discretion and opts that the accused would be tried by the court-martial, the proceedings of court-martial cannot be taken unless the Central Government accords sanction. 64. Learned counsel for the CBI and interveners have opposed the submission contending that in case the accused are tried in the court- martial, sanction is not required at all. The provisions of the Act 1990 would apply in consonance with the provisions of the Army Act. Section 7 of the Act 1990 does not contain non-obstante clause. Therefore, once the option is made that accused is to be tried by a court-martial, further proceedings would be in accordance with the provisions of Section 70 of the Army Act and for that purpose, sanction of the Central Government is not required. The court-martial has been defined under Section 3(VII) of the Army Act which is definitely different from the suit and prosecution as explained hereinabove, and has not been referred to in the Act 1990. 65. Undoubtedly, the court-martial proceedings are akin to criminal prosecution and this fact has been dealt with elaborately by this Court in Union of India & Ors. v. Major A. Hussain, AIR 1998 SC 577 . However, once the matter stands transferred to the Army for conducting a court-martial, the court-martial has to be as per the provisions of the Army Act. The Army Act does not provide for sanction of the Central Government. Thus, we do not find any force in the contention raised by the appellant and the same is rejected. 66. Sum up:i) The conjoint reading of the relevant statutory provisions and rules make it clear that the term “institution” contained in Section 7 of the Act 1990 means taking cognizance of the offence and not mere presentation of the chargesheet by the investigating agency.ii) The competent Army Authority has to exercise his discretion to opt as to whether the trial would be by a court-martial or criminal court after filing of the chargesheet and not after the cognizance of the offence is taken by the court. iii) Facts of this case require sanction of the Central Government to proceed with the criminal prosecution/trial.iv) In case option is made to try the accused by a court-martial, sanction of the Central Government is not required.67. In view of the above, the
### Response:
1
### Explanation:
66. Sum up:i) The conjoint reading of the relevant statutory provisions and rules make it clear that the termcontained in Section 7 of the Act 1990 means taking cognizance of the offence and not mere presentation of the chargesheet by the investigating agency.ii) The competent Army Authority has to exercise his discretion to opt as to whether the trial would be by a court-martial or criminal court after filing of the chargesheet and not after the cognizance of the offence is taken by theFacts of this case require sanction of the Central Government to proceed with the criminal prosecution/trial.iv) In case option is made to try the accused by a court-martial, sanction of the Central Government is not required.
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Bachharam Datta Patil And Another Vs. Vishwanath Pundalik Patil Andothers | lands were once Watan property and that once the property is impressed with the character of inam lands, they continue to bear that character, because the Government have not been authorised by any law to change their character. No precedent or statutory provisions directly supporting this wide proposition have been brought to our notice. But our attention was called to the provisions of S.15 which make it permissible for the Collector to commute the service and relieve the holder of the Watan and his heirs and successors in perpetuity of their liability to perform the service on such conditions as may be agreed upon. If we have been able correctly to appreciate the argument based upon S.15, it was sought to be made out that the service in respect of the Watan lands in question may have been commuted but even after the commutation of the service the Watan remained and the lands continued to ret in the character of Watan lands. This argument assumes that even upon the service being entirely dispensed with in perpetuity, the Watan character of the land continued. That is begging the question. Furthermore, cl. (1) S.15 contemplates commutation "upon such conditions, whether consistent with the provisions of this Act or not, as may be agreed upon by the Collector and such holder." Thus the conditions to be agreed upon between the holder of land which was once part of a Watan and the Government at the time of the commutation may be of so many varieties that in some cases the Watan character of the land may be maintained, whereas in others the conditions agreed between the parties may themselves contemplate the cessation of that character. In the present case, apart from the entries in the Record of Rights, we have no other evidence to indicate as to on what terms the service had been completely dispensed with in perpetuity and the full assessment levied upon those lands. It is not therefore clear upon the findings of the Court below that there were any such conditions attaching to the holding of the lands in question which could be consistent with the continuance of the original Watan tenure. It is possible to conceive of a case where the conditions agreed upon provide for the continuance of the Watan tenure, in spite of the fact that the holders have been excused the performance of the customary service. On the other hand, it may be that there were no conditions agreed between the parties continuing the Watan character of the land after dispensing with the service.5. On findings of the Courts below there was no hereditary office any more and therefore the question of remunerating any service with the usufruct of Watan property or otherwise did not arise. On the other hand, the provisions of Section 22 of the Act clearly predicate that a Watan may lapse in part or in whole or may be confiscated or otherwise lawfully resumed by Government and that in such cases it is lawful for Government to attach such land to a newly created Watan in favour of such persons as may be appointed by Government.That being so, it is impossible to contend that Government have not the power to destroy the Watan character of a Watan land. Such an argument completely ignores the legal position that an authority which has the power to create an office and to provide for its remuneration in cash or in kind has also the power to revoke the grant, and upon such revocation, if any, land has been assigned for remunerating the office so abolished it must revert to the source from which it came; that is to say, ryotwari land subject to land revenue assessment. That is what appears to have happened in the present case. The very description of the land as Japti Sanadi Inam land would mean that, that which was once the subject- matter of an inam grant by virtue of a sanad has been resumed or confiscated by Government and the land left in possession of the holder as ryotwari holding. As pointed out by the Courts below, there is no evidence as to the original character of the grant or as to how and when the grant was resumed and the land thus became subject to ordinary occupancy rights. But they have proceeded on the basis that it was the subject-matter of a Watan by sanad which has been subsequently resumed by Government as service was no more required and the necessity for the grant was no more there. They have only differed on the legal result of the resumption.6. A similar question arose for decision in the Bombay High Court in the case ofRamijyabi Muktum Saheb v. Gudusaheb, 54 Bom. L R 405: (A I R 1952 Bom. 387) (A) after the present case had been decided by that Court. In that case property which was originally Watan was continued with the holder thereof but without the obligation to render any service and with the full levy of assessment in respect of the land. The question arose whether such land continued to be Watan land with its special incidents as regards alienation, etc., or whether it was ordinary occupancy holding. A single Judge of that Court who heard the appeal in the first instance came to the conclusion that the land continued to be Watan land. On Letters Patent Appeal, the Division Bench after a very elaborate examination of the relevant rules and precedents came to the contrary conclusion and held that the land had ceased to have the character of the Watan and was subject to the ordinary law of land tenures in that State. We are in agreement with the conclusion reached by the Letters Patent Bench in that case, the facts of which were similar to those of the present case. Hence it must be held that there is neither authority nor principle in favour of the contention raised on behalf of the appellants. | 0[ds]It is not disputed that in the former case the plaintiff-appellants will be entitled to them also even as they have been adjudged to be entitled to the rest of the properties in dispute which were admittedly Watan lands. It is equally undisputed that if the Japti Sanadi Inam lands are no more Watan lands, this appeal mustthese definitions it is clear that in order that there may be a Watan it is necessary that there should be a hereditary office and Watan property which is assigned to the "Watandar" by way of remuneration for the performance of the duty appertaining to his office. But it has been argued on behalf of the appellants that it is common ground that the Sanadi Inam lands were once Watan property and that once the property is impressed with the character of inam lands, they continue to bear that character, because the Government have not been authorised by any law to change their character. No precedent or statutory provisions directly supporting this wide proposition have been brought to our notice. But our attention was called to the provisions of S.15 which make it permissible for the Collector to commute the service and relieve the holder of the Watan and his heirs and successors in perpetuity of their liability to perform the service on such conditions as may be agreedwe have been able correctly to appreciate the argument based upon S.15, it was sought to be made out that the service in respect of the Watan lands in question may have been commuted but even after the commutation of the service the Watan remained and the lands continued to ret in the character of Watan lands. This argument assumes that even upon the service being entirely dispensed with in perpetuity, the Watan character of the land continued. That is begging the question. Furthermore, cl. (1) S.15 contemplates commutation "upon such conditions, whether consistent with the provisions of this Act or not, as may be agreed upon by the Collector and such holder." Thus the conditions to be agreed upon between the holder of land which was once part of a Watan and the Government at the time of the commutation may be of so many varieties that in some cases the Watan character of the land may be maintained, whereas in others the conditions agreed between the parties may themselves contemplate the cessation of that character. In the present case, apart from the entries in the Record of Rights, we have no other evidence to indicate as to on what terms the service had been completely dispensed with in perpetuity and the full assessment levied upon thoseis not therefore clear upon the findings of the Court below that there were any such conditions attaching to the holding of the lands in question which could be consistent with the continuance of the original Watan tenure. It is possible to conceive of a case where the conditions agreed upon provide for the continuance of the Watan tenure, in spite of the fact that the holders have been excused the performance of the customary service. On the other hand, it may be that there were no conditions agreed between the parties continuing the Watan character of the land after dispensing with the service.5. On findings of the Courts below there was no hereditary office any more and therefore the question of remunerating any service with the usufruct of Watan property or otherwise did notbeing so, it is impossible to contend that Government have not the power to destroy the Watan character of a Watan land. Such an argument completely ignores the legal position that an authority which has the power to create an office and to provide for its remuneration in cash or in kind has also the power to revoke the grant, and upon such revocation, if any, land has been assigned for remunerating the office so abolished it must revert to the source from which it came; that is to say, ryotwari land subject to land revenueare in agreement with the conclusion reached by the Letters Patent Bench in that case, the facts of which were similar to those of the present case. Hence it must be held that there is neither authority nor principle in favour of the contention raised on behalf of the appellants. | 0 | 2,336 | 767 | ### Instruction:
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lands were once Watan property and that once the property is impressed with the character of inam lands, they continue to bear that character, because the Government have not been authorised by any law to change their character. No precedent or statutory provisions directly supporting this wide proposition have been brought to our notice. But our attention was called to the provisions of S.15 which make it permissible for the Collector to commute the service and relieve the holder of the Watan and his heirs and successors in perpetuity of their liability to perform the service on such conditions as may be agreed upon. If we have been able correctly to appreciate the argument based upon S.15, it was sought to be made out that the service in respect of the Watan lands in question may have been commuted but even after the commutation of the service the Watan remained and the lands continued to ret in the character of Watan lands. This argument assumes that even upon the service being entirely dispensed with in perpetuity, the Watan character of the land continued. That is begging the question. Furthermore, cl. (1) S.15 contemplates commutation "upon such conditions, whether consistent with the provisions of this Act or not, as may be agreed upon by the Collector and such holder." Thus the conditions to be agreed upon between the holder of land which was once part of a Watan and the Government at the time of the commutation may be of so many varieties that in some cases the Watan character of the land may be maintained, whereas in others the conditions agreed between the parties may themselves contemplate the cessation of that character. In the present case, apart from the entries in the Record of Rights, we have no other evidence to indicate as to on what terms the service had been completely dispensed with in perpetuity and the full assessment levied upon those lands. It is not therefore clear upon the findings of the Court below that there were any such conditions attaching to the holding of the lands in question which could be consistent with the continuance of the original Watan tenure. It is possible to conceive of a case where the conditions agreed upon provide for the continuance of the Watan tenure, in spite of the fact that the holders have been excused the performance of the customary service. On the other hand, it may be that there were no conditions agreed between the parties continuing the Watan character of the land after dispensing with the service.5. On findings of the Courts below there was no hereditary office any more and therefore the question of remunerating any service with the usufruct of Watan property or otherwise did not arise. On the other hand, the provisions of Section 22 of the Act clearly predicate that a Watan may lapse in part or in whole or may be confiscated or otherwise lawfully resumed by Government and that in such cases it is lawful for Government to attach such land to a newly created Watan in favour of such persons as may be appointed by Government.That being so, it is impossible to contend that Government have not the power to destroy the Watan character of a Watan land. Such an argument completely ignores the legal position that an authority which has the power to create an office and to provide for its remuneration in cash or in kind has also the power to revoke the grant, and upon such revocation, if any, land has been assigned for remunerating the office so abolished it must revert to the source from which it came; that is to say, ryotwari land subject to land revenue assessment. That is what appears to have happened in the present case. The very description of the land as Japti Sanadi Inam land would mean that, that which was once the subject- matter of an inam grant by virtue of a sanad has been resumed or confiscated by Government and the land left in possession of the holder as ryotwari holding. As pointed out by the Courts below, there is no evidence as to the original character of the grant or as to how and when the grant was resumed and the land thus became subject to ordinary occupancy rights. But they have proceeded on the basis that it was the subject-matter of a Watan by sanad which has been subsequently resumed by Government as service was no more required and the necessity for the grant was no more there. They have only differed on the legal result of the resumption.6. A similar question arose for decision in the Bombay High Court in the case ofRamijyabi Muktum Saheb v. Gudusaheb, 54 Bom. L R 405: (A I R 1952 Bom. 387) (A) after the present case had been decided by that Court. In that case property which was originally Watan was continued with the holder thereof but without the obligation to render any service and with the full levy of assessment in respect of the land. The question arose whether such land continued to be Watan land with its special incidents as regards alienation, etc., or whether it was ordinary occupancy holding. A single Judge of that Court who heard the appeal in the first instance came to the conclusion that the land continued to be Watan land. On Letters Patent Appeal, the Division Bench after a very elaborate examination of the relevant rules and precedents came to the contrary conclusion and held that the land had ceased to have the character of the Watan and was subject to the ordinary law of land tenures in that State. We are in agreement with the conclusion reached by the Letters Patent Bench in that case, the facts of which were similar to those of the present case. Hence it must be held that there is neither authority nor principle in favour of the contention raised on behalf of the appellants.
### Response:
0
### Explanation:
It is not disputed that in the former case the plaintiff-appellants will be entitled to them also even as they have been adjudged to be entitled to the rest of the properties in dispute which were admittedly Watan lands. It is equally undisputed that if the Japti Sanadi Inam lands are no more Watan lands, this appeal mustthese definitions it is clear that in order that there may be a Watan it is necessary that there should be a hereditary office and Watan property which is assigned to the "Watandar" by way of remuneration for the performance of the duty appertaining to his office. But it has been argued on behalf of the appellants that it is common ground that the Sanadi Inam lands were once Watan property and that once the property is impressed with the character of inam lands, they continue to bear that character, because the Government have not been authorised by any law to change their character. No precedent or statutory provisions directly supporting this wide proposition have been brought to our notice. But our attention was called to the provisions of S.15 which make it permissible for the Collector to commute the service and relieve the holder of the Watan and his heirs and successors in perpetuity of their liability to perform the service on such conditions as may be agreedwe have been able correctly to appreciate the argument based upon S.15, it was sought to be made out that the service in respect of the Watan lands in question may have been commuted but even after the commutation of the service the Watan remained and the lands continued to ret in the character of Watan lands. This argument assumes that even upon the service being entirely dispensed with in perpetuity, the Watan character of the land continued. That is begging the question. Furthermore, cl. (1) S.15 contemplates commutation "upon such conditions, whether consistent with the provisions of this Act or not, as may be agreed upon by the Collector and such holder." Thus the conditions to be agreed upon between the holder of land which was once part of a Watan and the Government at the time of the commutation may be of so many varieties that in some cases the Watan character of the land may be maintained, whereas in others the conditions agreed between the parties may themselves contemplate the cessation of that character. In the present case, apart from the entries in the Record of Rights, we have no other evidence to indicate as to on what terms the service had been completely dispensed with in perpetuity and the full assessment levied upon thoseis not therefore clear upon the findings of the Court below that there were any such conditions attaching to the holding of the lands in question which could be consistent with the continuance of the original Watan tenure. It is possible to conceive of a case where the conditions agreed upon provide for the continuance of the Watan tenure, in spite of the fact that the holders have been excused the performance of the customary service. On the other hand, it may be that there were no conditions agreed between the parties continuing the Watan character of the land after dispensing with the service.5. On findings of the Courts below there was no hereditary office any more and therefore the question of remunerating any service with the usufruct of Watan property or otherwise did notbeing so, it is impossible to contend that Government have not the power to destroy the Watan character of a Watan land. Such an argument completely ignores the legal position that an authority which has the power to create an office and to provide for its remuneration in cash or in kind has also the power to revoke the grant, and upon such revocation, if any, land has been assigned for remunerating the office so abolished it must revert to the source from which it came; that is to say, ryotwari land subject to land revenueare in agreement with the conclusion reached by the Letters Patent Bench in that case, the facts of which were similar to those of the present case. Hence it must be held that there is neither authority nor principle in favour of the contention raised on behalf of the appellants.
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Dharminder Singh @ Vijay Singh Vs. State | accused, namely, that they were last seen in the company of the deceased and within a span of about 18 hours thereafter the dead body of Krishan Kumar was recovered from Haridwar. Alongwith the vehicle the accused were apprehended in Purnia, Bihar. They have failed to account for the absence of the deceased; their presence in Bihar with the vehicle and the recovery of the dead body of Krishan Kumar at Haridwar. In these circumstances, according to the learned counsel for the State, there can be no doubt that it is the accused alone who are responsible for the death of deceased Krishan Kumar. 10. The prosecution case hinges on circumstantial evidence as no direct evidence of the commission of the crime is forthcoming. The test(s) that have to be applied by the court to hold a prosecution case to be proved beyond reasonable doubt on the basis of circumstantial evidence has been laid down in a plethora of judgments of this Court. In a recent pronouncement in the case of Vadlakonda Lenin Vs. State of A.P. [(2012) 12 SCC 260] the law has been summed up in paragraph 12 which may be usefully extracted hereinbelow:- ?12. The culpability of the appellant-accused, in the absence of any direct evidence, has to be judged on the basis of the circumstances enumerated above. The principles of law governing proof of a criminal charge by circumstantial evidence would hardly require any reiteration save and except that the circumstances on which the prosecution relies must be proved beyond all reasonable doubt and such circumstances must be capable of giving rise to an inference which is inconsistent with any other hypothesis except the guilt of the accused. It is only in such an event that the conviction of the accused, on the basis of the circumstantial evidence brought by the prosecution, would be permissible in law. In this regard a reference to the ?five golden principles? enunciated by this Court in Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116 ] may be recapitulated for which purpose para 153 of the judgment in the above case may be usefully extracted below: ?153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned ?must or should? and not ?may be? established. There is not only a grammatical but a legal distinction between ?may be proved? and ?must be or should be proved? as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra (1973 2 SCC 793 ) where the following observations were made: ?19. ? Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ?may be? and ?must be? is long and divides vague conjectures from sure conclusions.? (emphasis in original) (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.? 11. Due consideration of the evidence on record makes it abundantly clear that in the present case the prosecution has proved that on 26.8.2000 at about 4.30 p.m. the appellants and two other co-accused were in the van driven by deceased Krishan Kumar and that they had hired the said van to go to Haridwar. On the next morning at about 10.00 a.m. the dead body of Krishan Kumar (subsequently identified by PWs 11 and 12 on the basis of photographs taken before the cremation) was recovered from under a bridge at a place near Haridwar. The accused appellants were apprehended along with vehicle at Purnia in Bihar on 29.08.2000. They had failed to give any explanation for their presence in Purnia and also as to what had happened to Krishan Kumar who was driving the vehicle hired by them on 26.8.2000 to go to Haridwar. In view of the very close proximity of the time between the accused and the deceased being seen together (4.30 P.M. of 26.8.2000) and the recovery of the dead body (10 A.M. of 27.8.2000) it was necessary for the accused to offer a reasonable explanation as to what had happened to the deceased Krishan Kumar with whom they had gone to Haridwar in the previous evening. The accused could not have opted to remain silent. They were duty bound to give adequate and reasonable explanation as regards the events that had taken place at Haridwar and the circumstances in which they had parted company with the deceased. In their statement recorded under Section 313 CrPC the accused while admitting that they were arrested at Purnia in Bihar had given no explanation whatsoever as to what had happened at Haridwar and to Krishan Kumar and under what circumstances they had gone to Bihar without him.12. Applying the law consistently laid down by this Court including the principles noticed in Vadlakonda Lenin (supra) to the facts of the present case, we are left with no doubt whatsoever that the circumstances proved by the prosecution, in the absence of any reasonable explanation on the part of the accused, cannot give rise to any other conclusion except that it is the accused alone who had abducted deceased Krishan Kumar and had killed him at Haridwar. | 0[ds]11. Due consideration of the evidence on record makes it abundantly clear that in the present case the prosecution has proved that on 26.8.2000 at about 4.30 p.m. the appellants and two otherwere in the van driven by deceased Krishan Kumar and that they had hired the said van to go to Haridwar. On the next morning at about 10.00 a.m. the dead body of Krishan Kumar (subsequently identified by PWs 11 and 12 on the basis of photographs taken before the cremation) was recovered from under a bridge at a place near Haridwar. The accused appellants were apprehended along with vehicle at Purnia in Bihar on 29.08.2000. They had failed to give any explanation for their presence in Purnia and also as to what had happened to Krishan Kumar who was driving the vehicle hired by them on 26.8.2000 to go to Haridwar. In view of the very close proximity of the time between the accused and the deceased being seen together (4.30 P.M. of 26.8.2000) and the recovery of the dead body (10 A.M. of 27.8.2000) it was necessary for the accused to offer a reasonable explanation as to what had happened to the deceased Krishan Kumar with whom they had gone to Haridwar in the previous evening. The accused could not have opted to remain silent. They were duty bound to give adequate and reasonable explanation as regards the events that had taken place at Haridwar and the circumstances in which they had parted company with the deceased. In their statement recorded under Section 313 CrPC the accused while admitting that they were arrested at Purnia in Bihar had given no explanation whatsoever as to what had happened at Haridwar and to Krishan Kumar and under what circumstances they had gone to Bihar without him.12. Applying the law consistently laid down by this Court including the principles noticed in Vadlakonda Lenin (supra) to the facts of the present case, we are left with no doubt whatsoever that the circumstances proved by the prosecution, in the absence of any reasonable explanation on the part of the accused, cannot give rise to any other conclusion except that it is the accused alone who had abducted deceased Krishan Kumar and had killed him at Haridwar. | 0 | 3,165 | 401 | ### Instruction:
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accused, namely, that they were last seen in the company of the deceased and within a span of about 18 hours thereafter the dead body of Krishan Kumar was recovered from Haridwar. Alongwith the vehicle the accused were apprehended in Purnia, Bihar. They have failed to account for the absence of the deceased; their presence in Bihar with the vehicle and the recovery of the dead body of Krishan Kumar at Haridwar. In these circumstances, according to the learned counsel for the State, there can be no doubt that it is the accused alone who are responsible for the death of deceased Krishan Kumar. 10. The prosecution case hinges on circumstantial evidence as no direct evidence of the commission of the crime is forthcoming. The test(s) that have to be applied by the court to hold a prosecution case to be proved beyond reasonable doubt on the basis of circumstantial evidence has been laid down in a plethora of judgments of this Court. In a recent pronouncement in the case of Vadlakonda Lenin Vs. State of A.P. [(2012) 12 SCC 260] the law has been summed up in paragraph 12 which may be usefully extracted hereinbelow:- ?12. The culpability of the appellant-accused, in the absence of any direct evidence, has to be judged on the basis of the circumstances enumerated above. The principles of law governing proof of a criminal charge by circumstantial evidence would hardly require any reiteration save and except that the circumstances on which the prosecution relies must be proved beyond all reasonable doubt and such circumstances must be capable of giving rise to an inference which is inconsistent with any other hypothesis except the guilt of the accused. It is only in such an event that the conviction of the accused, on the basis of the circumstantial evidence brought by the prosecution, would be permissible in law. In this regard a reference to the ?five golden principles? enunciated by this Court in Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116 ] may be recapitulated for which purpose para 153 of the judgment in the above case may be usefully extracted below: ?153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned ?must or should? and not ?may be? established. There is not only a grammatical but a legal distinction between ?may be proved? and ?must be or should be proved? as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra (1973 2 SCC 793 ) where the following observations were made: ?19. ? Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ?may be? and ?must be? is long and divides vague conjectures from sure conclusions.? (emphasis in original) (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.? 11. Due consideration of the evidence on record makes it abundantly clear that in the present case the prosecution has proved that on 26.8.2000 at about 4.30 p.m. the appellants and two other co-accused were in the van driven by deceased Krishan Kumar and that they had hired the said van to go to Haridwar. On the next morning at about 10.00 a.m. the dead body of Krishan Kumar (subsequently identified by PWs 11 and 12 on the basis of photographs taken before the cremation) was recovered from under a bridge at a place near Haridwar. The accused appellants were apprehended along with vehicle at Purnia in Bihar on 29.08.2000. They had failed to give any explanation for their presence in Purnia and also as to what had happened to Krishan Kumar who was driving the vehicle hired by them on 26.8.2000 to go to Haridwar. In view of the very close proximity of the time between the accused and the deceased being seen together (4.30 P.M. of 26.8.2000) and the recovery of the dead body (10 A.M. of 27.8.2000) it was necessary for the accused to offer a reasonable explanation as to what had happened to the deceased Krishan Kumar with whom they had gone to Haridwar in the previous evening. The accused could not have opted to remain silent. They were duty bound to give adequate and reasonable explanation as regards the events that had taken place at Haridwar and the circumstances in which they had parted company with the deceased. In their statement recorded under Section 313 CrPC the accused while admitting that they were arrested at Purnia in Bihar had given no explanation whatsoever as to what had happened at Haridwar and to Krishan Kumar and under what circumstances they had gone to Bihar without him.12. Applying the law consistently laid down by this Court including the principles noticed in Vadlakonda Lenin (supra) to the facts of the present case, we are left with no doubt whatsoever that the circumstances proved by the prosecution, in the absence of any reasonable explanation on the part of the accused, cannot give rise to any other conclusion except that it is the accused alone who had abducted deceased Krishan Kumar and had killed him at Haridwar.
### Response:
0
### Explanation:
11. Due consideration of the evidence on record makes it abundantly clear that in the present case the prosecution has proved that on 26.8.2000 at about 4.30 p.m. the appellants and two otherwere in the van driven by deceased Krishan Kumar and that they had hired the said van to go to Haridwar. On the next morning at about 10.00 a.m. the dead body of Krishan Kumar (subsequently identified by PWs 11 and 12 on the basis of photographs taken before the cremation) was recovered from under a bridge at a place near Haridwar. The accused appellants were apprehended along with vehicle at Purnia in Bihar on 29.08.2000. They had failed to give any explanation for their presence in Purnia and also as to what had happened to Krishan Kumar who was driving the vehicle hired by them on 26.8.2000 to go to Haridwar. In view of the very close proximity of the time between the accused and the deceased being seen together (4.30 P.M. of 26.8.2000) and the recovery of the dead body (10 A.M. of 27.8.2000) it was necessary for the accused to offer a reasonable explanation as to what had happened to the deceased Krishan Kumar with whom they had gone to Haridwar in the previous evening. The accused could not have opted to remain silent. They were duty bound to give adequate and reasonable explanation as regards the events that had taken place at Haridwar and the circumstances in which they had parted company with the deceased. In their statement recorded under Section 313 CrPC the accused while admitting that they were arrested at Purnia in Bihar had given no explanation whatsoever as to what had happened at Haridwar and to Krishan Kumar and under what circumstances they had gone to Bihar without him.12. Applying the law consistently laid down by this Court including the principles noticed in Vadlakonda Lenin (supra) to the facts of the present case, we are left with no doubt whatsoever that the circumstances proved by the prosecution, in the absence of any reasonable explanation on the part of the accused, cannot give rise to any other conclusion except that it is the accused alone who had abducted deceased Krishan Kumar and had killed him at Haridwar.
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Mahant Salig Ram Vs. Musammat Maya Devi | as recorded in the Riwaj-i-am is opposed to the custom generally prevalent, the presumption will be considerably weakened. Likewise, where the Riwaj-i-am affects adversely the rights of the females who had no opportunity whatever of appearing before the Revenue authorities, the presumption will be weaker still and only a few instances would be sufficient to rebut it. [See Khan Beg v. Mt. Fateh Khatun ([1931] I.L.R. 13 Lah. 276, 296, 297), Jagat Singh v. Mst. Jiwan (A.I.R. 1935 Lah. 617)]. The principles laid down in these cases were approved of by the Judicial Committee in Mst. Subhanis case supra.10. Learned counsel appearing for the appellant contends that even if the presumption as to the correctness of the Riwaj-i-am be weak, the respondent has not cited a single instance of a daughter having excluded the collaterals from succession to the self-acquired property of her father and has, therefore, failed to discharge the onus that was thrown on her as a result of the production by the appellant of the Riwaj-i-am of 1913 and, consequently, the appellant must succeed. This argument overlooks the fact that in order to enable the appellant to displace the general custom recorded in Rattigans work and to shift the onus to the respondent the appellant must produce a Riwaj-i-am which is a reliable and trustworthy document. It has been held in Qamar-ud-Din v. Mt. Fateh Bano ([1943] I.L.R. 26 Lah. 110) that if the Riwaj-i-am produced is a reliable and a trustworthy document, has been carefully prepared and does not contain within its four corners contradictory statements of custom and in the opinion of the Settlement Officer is not a record of the wishes of the persons appearing before him as to what the custom should be, it would be a presumptive piece of evidence in proof of the special custom set up, which if left unrebutted by the daughters would lead to a result favourable to the collaterals. If, on the other hand, it is not a document of the kind indicated above then such a Riwaj-i-am will have no value at all as a presumptive piece of evidence. This principle has been followed by the East Punjab High Court in the later case of Mohammad Khalil v. Mohammad Bakhsh (A.I.R. 1949 E.P. 252). This being the position in law, we have to scrutinise and ascertain whether the Riwaj-i-am of the Gurdaspur district in so far as they purport to record the local custom as to the right of succession of daughters to the self acquired properties of their respective father are reliable and trustworthy documents.Twenty-two tribes including Brahmins were consulted by Mr. Kennaway who prepared the Riwaj-i-am of 1913. In paragraph 4 of the Preface Mr. Kennaway himself states that many of the questions related to matters on which there really existed no custom and the people had merely stated what the custom should be and not what it actually was. In Appendix C are collected 56 instances of mutuations in which the daughter inherited. In these there are four instances relating to Brahmins. Answer to question 16, as recorded in this Riwaj-i-am, has been discredited and shown to be incorrect in at least three cases, namely, Gurdit Singh v. Mt. Malan ([1924] I.L.R. 5 Lah. 364), Kesar Singh v. Achhar Singh (A.I.R. 1936 Lah. 68) and Buta Singh v. Mt. Harnamon (A.I.R. 1946 Lah. 306). The answer to question 16 as recorded in the 1913 Riwaj-i-am, it was pointed out, went much beyond the answer given to the same question in the Riwaj-i-ams of 1865 and 1893. The answer to question 17 of the 1913 Riwaj-i-am that no distinction is to be made between ancestral and self-acquired property has not been accepted as correct in not less than six cases, namely, Bawa Singh v. Mt. Partap (A.I.R. 1935 Lah. 288), Jagat Singh v. Mt. Jiwan (Ibid, 617), Kesar Singh v. Gurnam Singh (Ibid. 696), Najju v. Mt. Aimna Bibi (A.I.R. 1936 Lah. 493), Gurdit Singh v. Mt. Man Kaur (A.I.R. 1937 Lah. 90), and Labh v. Mt. Fateh Bibi (A.I.R. 1940 Lah. 436). The statements in a Riwaj-i-am the truth of which is doubted by the compiler himself in the preface and which stand contradicted by the instances collected and set out in Appendix C of the same Riwaj-i-am and which have been discredited in judicial proceedings and held to be incorrect cannot, in our opinion, be regarded as a reliable or trustworthy document and cannot displace the initial presumption of the general custom recorded in Rattigans book so as to shift the onus to the daughter who is the respondent.The appellant relies on the cases of Ramzan Shah v. Sohna Shah ([1889] 24 P.R. 191), Nanak Chand v. Basheshar Nath ([1908] 43 P.R. 15), Mt. Massan v. Sawan Mal (A.I.R. 1935 Lah. 453) and Kesar Singh v. Achhar Singh (A.I.R. 1936 Lah. 68). The first three cases are of no assistance to him although the second and third relate to Brahmins of Gurdaspur, for the properties in dispute in those cases were ancestral and the respondent does not now dispute the appellants right to succeed to her fathers ancestral properties. These cases, therefore, do not throw any light on the present case which is concerned with the question of succession to self-acquired property. Further, in the last case, the collaterals were beyond the fourth degree and it was enough for the Court to say that irrespective of whether the properties in dispute were ancestral or self-acquired the collaterals in that case could not succeed. It is also to be noted that the earlier decisions were not cited or considered in that case.11. In our opinion the appellant has failed to discharge the onus that was initially on him and that being the position no burden was cast on the respondent which she need have discharged by adducing evidence of particular instances. In these circumstance, the general custom recorded in Rattigans book must prevail and the decision of the High Court must be upheld. | 0[ds]The trial Court as well as the High Court took the view that the evidence as to the succession to the property of Harnam Singh was of no assistance to the appellant for the reason that the evidence was extremely sketchy, that it did not appear whether the properties left by Harnam Singh were ancestral or self-acquired or whether the properties left by him were of any substantial value at all as would have made it worth while for the daughter to claim the same in addition to the properties gifted to her by her father during his lifetime. Further, the fact that the daughter did not contest the succession of the collaterals to the properties left by Harnam Singh, even if they were self-acquired, might well have been the result, as held by the High Court, of some family arrangement. We find ourselves in agreement with the Courts below that the instance relied upon by the appellant is wholly insufficient to discharge the onus that was on him to displace the general custom recorded in paragraph 23(2) of Rattigans Digest of Customaryappellant contends that in any case he has fully discharged the onus that was on him by producing in evidence the Riwaj-i-am recording the custom of the district of Gurdaspur which was complied by Mr. Kennaway in 1913. Reference is also made to the earlier Riwaj-i-ams of the Gurdaspur District prepared in 1865 and 1893. Answer to question 16 as recorded in the Riwaj-i-am of 1913 shows that subject to certain exceptions, which are not material for our purpose, the general rule is that the daughters are excluded by the widow and male kindred of the deceased, however remote. This answer goes much beyond the answers to the same question as recorded in the Riwaj-i-ams of 1865 and 1893 for those answers limit the exclusion in favour of the male kindred up to certain specified degrees. The answer to question 17 of the 1913 Riwaj-i-am like those to question 17 of the 1865 and 1893 Riwaj-i-ams clearly indicates that except amongst the Gujjars of the Shakargarh tehsil all the remaining tribes consulted by the Revenue authorities recognised no distinction as to the rights of the daughters to inherit (i) the immovable or ancestral and (ii) the movable or self acquired property of their respective fathers. It is claimed that these answers quite adequately displace the general custom and shift the onus to the respondent to disprove the presumption arising on these Riwaj-i-ams by citing instances of succession contrary to theseour opinion the appellant has failed to discharge the onus that was initially on him and that being the position no burden was cast on the respondent which she need have discharged by adducing evidence of particular instances. In these circumstance, the general custom recorded in Rattigans book must prevail and the decision of the High Court must be upheld. | 0 | 3,210 | 511 | ### 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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as recorded in the Riwaj-i-am is opposed to the custom generally prevalent, the presumption will be considerably weakened. Likewise, where the Riwaj-i-am affects adversely the rights of the females who had no opportunity whatever of appearing before the Revenue authorities, the presumption will be weaker still and only a few instances would be sufficient to rebut it. [See Khan Beg v. Mt. Fateh Khatun ([1931] I.L.R. 13 Lah. 276, 296, 297), Jagat Singh v. Mst. Jiwan (A.I.R. 1935 Lah. 617)]. The principles laid down in these cases were approved of by the Judicial Committee in Mst. Subhanis case supra.10. Learned counsel appearing for the appellant contends that even if the presumption as to the correctness of the Riwaj-i-am be weak, the respondent has not cited a single instance of a daughter having excluded the collaterals from succession to the self-acquired property of her father and has, therefore, failed to discharge the onus that was thrown on her as a result of the production by the appellant of the Riwaj-i-am of 1913 and, consequently, the appellant must succeed. This argument overlooks the fact that in order to enable the appellant to displace the general custom recorded in Rattigans work and to shift the onus to the respondent the appellant must produce a Riwaj-i-am which is a reliable and trustworthy document. It has been held in Qamar-ud-Din v. Mt. Fateh Bano ([1943] I.L.R. 26 Lah. 110) that if the Riwaj-i-am produced is a reliable and a trustworthy document, has been carefully prepared and does not contain within its four corners contradictory statements of custom and in the opinion of the Settlement Officer is not a record of the wishes of the persons appearing before him as to what the custom should be, it would be a presumptive piece of evidence in proof of the special custom set up, which if left unrebutted by the daughters would lead to a result favourable to the collaterals. If, on the other hand, it is not a document of the kind indicated above then such a Riwaj-i-am will have no value at all as a presumptive piece of evidence. This principle has been followed by the East Punjab High Court in the later case of Mohammad Khalil v. Mohammad Bakhsh (A.I.R. 1949 E.P. 252). This being the position in law, we have to scrutinise and ascertain whether the Riwaj-i-am of the Gurdaspur district in so far as they purport to record the local custom as to the right of succession of daughters to the self acquired properties of their respective father are reliable and trustworthy documents.Twenty-two tribes including Brahmins were consulted by Mr. Kennaway who prepared the Riwaj-i-am of 1913. In paragraph 4 of the Preface Mr. Kennaway himself states that many of the questions related to matters on which there really existed no custom and the people had merely stated what the custom should be and not what it actually was. In Appendix C are collected 56 instances of mutuations in which the daughter inherited. In these there are four instances relating to Brahmins. Answer to question 16, as recorded in this Riwaj-i-am, has been discredited and shown to be incorrect in at least three cases, namely, Gurdit Singh v. Mt. Malan ([1924] I.L.R. 5 Lah. 364), Kesar Singh v. Achhar Singh (A.I.R. 1936 Lah. 68) and Buta Singh v. Mt. Harnamon (A.I.R. 1946 Lah. 306). The answer to question 16 as recorded in the 1913 Riwaj-i-am, it was pointed out, went much beyond the answer given to the same question in the Riwaj-i-ams of 1865 and 1893. The answer to question 17 of the 1913 Riwaj-i-am that no distinction is to be made between ancestral and self-acquired property has not been accepted as correct in not less than six cases, namely, Bawa Singh v. Mt. Partap (A.I.R. 1935 Lah. 288), Jagat Singh v. Mt. Jiwan (Ibid, 617), Kesar Singh v. Gurnam Singh (Ibid. 696), Najju v. Mt. Aimna Bibi (A.I.R. 1936 Lah. 493), Gurdit Singh v. Mt. Man Kaur (A.I.R. 1937 Lah. 90), and Labh v. Mt. Fateh Bibi (A.I.R. 1940 Lah. 436). The statements in a Riwaj-i-am the truth of which is doubted by the compiler himself in the preface and which stand contradicted by the instances collected and set out in Appendix C of the same Riwaj-i-am and which have been discredited in judicial proceedings and held to be incorrect cannot, in our opinion, be regarded as a reliable or trustworthy document and cannot displace the initial presumption of the general custom recorded in Rattigans book so as to shift the onus to the daughter who is the respondent.The appellant relies on the cases of Ramzan Shah v. Sohna Shah ([1889] 24 P.R. 191), Nanak Chand v. Basheshar Nath ([1908] 43 P.R. 15), Mt. Massan v. Sawan Mal (A.I.R. 1935 Lah. 453) and Kesar Singh v. Achhar Singh (A.I.R. 1936 Lah. 68). The first three cases are of no assistance to him although the second and third relate to Brahmins of Gurdaspur, for the properties in dispute in those cases were ancestral and the respondent does not now dispute the appellants right to succeed to her fathers ancestral properties. These cases, therefore, do not throw any light on the present case which is concerned with the question of succession to self-acquired property. Further, in the last case, the collaterals were beyond the fourth degree and it was enough for the Court to say that irrespective of whether the properties in dispute were ancestral or self-acquired the collaterals in that case could not succeed. It is also to be noted that the earlier decisions were not cited or considered in that case.11. In our opinion the appellant has failed to discharge the onus that was initially on him and that being the position no burden was cast on the respondent which she need have discharged by adducing evidence of particular instances. In these circumstance, the general custom recorded in Rattigans book must prevail and the decision of the High Court must be upheld.
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### Explanation:
The trial Court as well as the High Court took the view that the evidence as to the succession to the property of Harnam Singh was of no assistance to the appellant for the reason that the evidence was extremely sketchy, that it did not appear whether the properties left by Harnam Singh were ancestral or self-acquired or whether the properties left by him were of any substantial value at all as would have made it worth while for the daughter to claim the same in addition to the properties gifted to her by her father during his lifetime. Further, the fact that the daughter did not contest the succession of the collaterals to the properties left by Harnam Singh, even if they were self-acquired, might well have been the result, as held by the High Court, of some family arrangement. We find ourselves in agreement with the Courts below that the instance relied upon by the appellant is wholly insufficient to discharge the onus that was on him to displace the general custom recorded in paragraph 23(2) of Rattigans Digest of Customaryappellant contends that in any case he has fully discharged the onus that was on him by producing in evidence the Riwaj-i-am recording the custom of the district of Gurdaspur which was complied by Mr. Kennaway in 1913. Reference is also made to the earlier Riwaj-i-ams of the Gurdaspur District prepared in 1865 and 1893. Answer to question 16 as recorded in the Riwaj-i-am of 1913 shows that subject to certain exceptions, which are not material for our purpose, the general rule is that the daughters are excluded by the widow and male kindred of the deceased, however remote. This answer goes much beyond the answers to the same question as recorded in the Riwaj-i-ams of 1865 and 1893 for those answers limit the exclusion in favour of the male kindred up to certain specified degrees. The answer to question 17 of the 1913 Riwaj-i-am like those to question 17 of the 1865 and 1893 Riwaj-i-ams clearly indicates that except amongst the Gujjars of the Shakargarh tehsil all the remaining tribes consulted by the Revenue authorities recognised no distinction as to the rights of the daughters to inherit (i) the immovable or ancestral and (ii) the movable or self acquired property of their respective fathers. It is claimed that these answers quite adequately displace the general custom and shift the onus to the respondent to disprove the presumption arising on these Riwaj-i-ams by citing instances of succession contrary to theseour opinion the appellant has failed to discharge the onus that was initially on him and that being the position no burden was cast on the respondent which she need have discharged by adducing evidence of particular instances. In these circumstance, the general custom recorded in Rattigans book must prevail and the decision of the High Court must be upheld.
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Motichand Hirachand & Ors Vs. Bombay Municipal Corporation | the owner of the building cannot charge rent over and above that which is permissible under the provisions of the Rent Act, there is nothing in that Act which prohibits him from charging an amount from an advertiser in consideration of the privilege of displaying his advertisement. A hypothetical tenant therefore, would take into consideration such extra income arising from the special advantage attached to the building and would be prepared to pay over and above the actual rent something in respect of such an additional advantage. 6. Counsel for the appellants relied upon certain decisions which we may now examine. Taylor v. Overseers of Pendleton, (1887) 19 QBD 288 is a case where the question was whether the advertising agent was a tenant or a licensee. If he was a licensee it would be the owner who would be the occupier, if a tenant it would be the advertising agent who would be the occupier. Since under the English law it is the occupier and not the owner who is liable for rates it was held that the agent being the tenant was the occupier and it was he and not the owner who was liable to pay rates. In Wilson v. Tavener, 1901-1 Ch 578 the defendant agreed by an agreement to let the plaintiff erect a hoarding upon the forecourt of a cottage and to allow him the use of a gable end for a bill posting station at yearly rent. It was held that the agreement did not amount to tenancy from year to year but was a licence and a quarters notice terminating at the end of the year of the currency of the agreement was a reasonable notice. These decisions cannot be appropriately brought to aid by the appellants as under the English law it is the occupier who is liable for the tax and it is for that reason that the court had to determine in each case whether the agreement in question created a demise or a licence. But whether the advertiser was a lessee or a mere licensee, the income arising from advertisement hoarding has always been rated irrespective of the question as to who was liable to pay the tax. Reliance was placed both before the High Court and also before us on the decision in Corporation of Calcutta v. Anil Prokash Basu AIR 1958 Cal 423 . The building there was let out to the tenant at Rs. 64-14-0 per month. On the roof of it, however, the Calcutta Street Advertising Company had displayed a neon-sign board of Capstain cigarette for which the owner was paid Rs. 125 per month. The question was whether the Calcutta Corporation was right in treating this income as rent within the meaning of Section 127 (a) of the Calcutta Municipal Act, 1923 and take it into account while determining the annual letting value of the building. Section 127 (a) is as follows:-"For the purpose of assessing land and building to the consolidated rate the annual value of land and the annual value of any building erected for letting purposes or ordinarily let shall be deemed to be the gross annual rent at which the land or building might at the time of assessment reasonably be expected to let from year to year less in the case of a building an allowance of 10 per cent for the cost of repairs and for all other expenses necessary to maintain the building in a state to command such gross rent." The High Court held that the roof of the building on which the sign board was put up could not be said to have been demised, that the amount paid to the owner by the advertising agency was therefore not rent and that the use of the roof for putting up the sign board amounted to a licence and therefore could not be treated as rent for the purpose of assessing the annual value of the building The High Court relied on certain English decisions and also on its own earlier decisions for deciding whether the agreement between the owner and the advertising agency amounted to a lease or licence. Having held that the agreement amounted to a licence and not lease and the income was licence fee and not rent it rejected the contention of the Municipal Corporation that it was entitled to treat the amount of Rs. 125 a month as rent over and above the actual rent of the building. It may be observed that it was never argued before the High Court that the agreement whether the said amount was rent or licence fee, added to the beneficial value of the building, that though the roof on the terms of that agreement could not be said to have been demised, what had to be considered under Section 127 (a) for assessing the annual rent of the building was the rent which a hypothetical tenant was expected to pay and not the actual rent, and whether such hypothetical tenant would or would not take into consideration the extra income de rived from the use of the roof for the advertising hoarding over and above the actual rent while deciding what rent he can profitably offer for the building. Such a question not having been raised or decided this decision also cannot assist the appellants. 7. In our view if the building or a part of it yields an extra income over and above the actual rent derived from it such income on the terms of S. 154 (1) of the Act can legitimately be taken into consideration by the assessing authority while determining the annual rent on the ground that a hypothetical tenant would take such extra income into account while considering what rent he can afford to offer for such building. That being the correct position under S. 154 (1) of the Act, High Court was right in confirming the enhancement of the annual rent from Rs. 44,320 to Rs. 59.600. | 0[ds]The measure for purposes of rating is therefore the rent which hypothetical tenant, looking at the building as it is, would estimate that which he would offer as rent is not hypothetical but concrete. While estimating the rent which he would be prepared to pay he would naturally take into consideration all the advantages, together with the disadvantages attached to the property, that, is the maximum beneficial use to which he would be able to put the property.In doing so he is bound to take into consideration the tact of the property being situated at an unique place as the instant property undoubtedly is, viz., at the juncture of two of the most prominent roads with the additional advantage of Chowpatty Sea Face being opposite to it where in the evenings and on week-ends, it cannot be questioned, large crowds usually gather. Coupled with this would be the advantage that a neon-sign advertisement can be vividly seen if fixed on the top of the building by people pedestrians and those in vehicles, from fairly tong distances in all directions, especially as the advertisement happens to be a rotating one. There can therefore be no doubt that if a property possesses such an amenity, such amenity is bound to add to its beneficial value and the tenant who desires to take it on lease is bound to take into consideration while making up his mind to the rent which he can profitably offer as to how much income he would be able to derive from exploiting" such an amenity. The measure of the hypothetical rent which such a tenant would offer would thus be the extent of the beneficial use to which he would be able to put the property on its being demised to him4. That being so it seems to us that the question whether an agreement under which such a tenant would be able to exploit the advantageous situation in which the property is situate amounts to a lease or license is totally irrelevant for the purpose of assessing the rateable value. Equally irrelevant is the question whether the income arising from such an agreement is rent or licence fee. To consider such income as irrelevant in the process of rating on the ground that it does not amount to rent but to licence fee is to misconstrue the true measure of the rent expected from the prospective tenantThe tenant would not only take into consideration the actual rent derived from the property but also such other income which he would be able to extract from the situation of the property by exploiting as best as he can the beneficial use to which the property is capable of being put. Therefore, the mere fact that the income from the agreement is not rent but licence fee and therefore Cannot be added to the actual rent fetched by the property does not justify on any principle of rating or any construction of section 154 of the Act, disregard of it while estimating the rent which the property would be expected to fetch5. It is true that the rating was so far made including the year in question on the basis of the actual rent derived from the property. That appears to have been done because of the restrictions under the Bombay Rent Act by reason of which the property cannot be leased at rent higher than the standard rent allowed under the provisions of that Act. Since no hypothetical tenant would pay rent higher than such standard rent the actual rent would ordinarily be the rent expected from a hypothetical tenant. It istrue, as observed earlier, that the hypothetical rent cannot be in view of the rent restrictions higher than the actual rent. But the income arising under the said agreement is not rent realised from letting out any part of the property to the Company but is in consideration of the exclusive privilege granted to it of displaying its neon signadvertisement.It ismanifest that the user thereunder of part of the terrace adds, to the beneficial value of the building. For such user the owner can legitimately expect something extra over and above the standard rent of the building. Though the owner of the building cannot charge rent over and above that which is permissible under the provisions of the Rent Act, there is nothing in that Act which prohibits him from charging an amount from an advertiser in consideration of the privilege of displaying hisadvertisement.A hypothetical tenant therefore, would take into consideration such extra income arising from the special advantage attached to the building and would be prepared to pay over and above the actual rent something in respect of such an additional advantageIt may be observed that it was never argued before the High Court that the agreement whether the said amount was rent or licence fee, added to the beneficial value of the building, that though the roof on the terms of that agreement could not be said to have been demised, what had to be considered under Section 127 (a) for assessing the annual rent of the building was the rent which a hypothetical tenant was expected to pay and not the actual rent, and whether such hypothetical tenant would or would not take into consideration the extra income de rived from the use of the roof for the advertising hoarding over and above the actual rent while deciding what rent he can profitably offer for the building. Such a question not having been raised or decided this decision also cannot assist the appellants7. In our view if the building or a part of it yields an extra income over and above the actual rent derived from it such income on the terms of S. 154 (1) of the Act can legitimately be taken into consideration by the assessing authority while determining the annual rent on the ground that a hypothetical tenant would take such extra income into account while considering what rent he can afford to offer for such building. That being the correct position under S. 154 (1) of the Act, High Court was right in confirming the enhancement of the annual rent from Rs. 44,320 to Rs. 59.600. | 0 | 3,521 | 1,098 | ### 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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the owner of the building cannot charge rent over and above that which is permissible under the provisions of the Rent Act, there is nothing in that Act which prohibits him from charging an amount from an advertiser in consideration of the privilege of displaying his advertisement. A hypothetical tenant therefore, would take into consideration such extra income arising from the special advantage attached to the building and would be prepared to pay over and above the actual rent something in respect of such an additional advantage. 6. Counsel for the appellants relied upon certain decisions which we may now examine. Taylor v. Overseers of Pendleton, (1887) 19 QBD 288 is a case where the question was whether the advertising agent was a tenant or a licensee. If he was a licensee it would be the owner who would be the occupier, if a tenant it would be the advertising agent who would be the occupier. Since under the English law it is the occupier and not the owner who is liable for rates it was held that the agent being the tenant was the occupier and it was he and not the owner who was liable to pay rates. In Wilson v. Tavener, 1901-1 Ch 578 the defendant agreed by an agreement to let the plaintiff erect a hoarding upon the forecourt of a cottage and to allow him the use of a gable end for a bill posting station at yearly rent. It was held that the agreement did not amount to tenancy from year to year but was a licence and a quarters notice terminating at the end of the year of the currency of the agreement was a reasonable notice. These decisions cannot be appropriately brought to aid by the appellants as under the English law it is the occupier who is liable for the tax and it is for that reason that the court had to determine in each case whether the agreement in question created a demise or a licence. But whether the advertiser was a lessee or a mere licensee, the income arising from advertisement hoarding has always been rated irrespective of the question as to who was liable to pay the tax. Reliance was placed both before the High Court and also before us on the decision in Corporation of Calcutta v. Anil Prokash Basu AIR 1958 Cal 423 . The building there was let out to the tenant at Rs. 64-14-0 per month. On the roof of it, however, the Calcutta Street Advertising Company had displayed a neon-sign board of Capstain cigarette for which the owner was paid Rs. 125 per month. The question was whether the Calcutta Corporation was right in treating this income as rent within the meaning of Section 127 (a) of the Calcutta Municipal Act, 1923 and take it into account while determining the annual letting value of the building. Section 127 (a) is as follows:-"For the purpose of assessing land and building to the consolidated rate the annual value of land and the annual value of any building erected for letting purposes or ordinarily let shall be deemed to be the gross annual rent at which the land or building might at the time of assessment reasonably be expected to let from year to year less in the case of a building an allowance of 10 per cent for the cost of repairs and for all other expenses necessary to maintain the building in a state to command such gross rent." The High Court held that the roof of the building on which the sign board was put up could not be said to have been demised, that the amount paid to the owner by the advertising agency was therefore not rent and that the use of the roof for putting up the sign board amounted to a licence and therefore could not be treated as rent for the purpose of assessing the annual value of the building The High Court relied on certain English decisions and also on its own earlier decisions for deciding whether the agreement between the owner and the advertising agency amounted to a lease or licence. Having held that the agreement amounted to a licence and not lease and the income was licence fee and not rent it rejected the contention of the Municipal Corporation that it was entitled to treat the amount of Rs. 125 a month as rent over and above the actual rent of the building. It may be observed that it was never argued before the High Court that the agreement whether the said amount was rent or licence fee, added to the beneficial value of the building, that though the roof on the terms of that agreement could not be said to have been demised, what had to be considered under Section 127 (a) for assessing the annual rent of the building was the rent which a hypothetical tenant was expected to pay and not the actual rent, and whether such hypothetical tenant would or would not take into consideration the extra income de rived from the use of the roof for the advertising hoarding over and above the actual rent while deciding what rent he can profitably offer for the building. Such a question not having been raised or decided this decision also cannot assist the appellants. 7. In our view if the building or a part of it yields an extra income over and above the actual rent derived from it such income on the terms of S. 154 (1) of the Act can legitimately be taken into consideration by the assessing authority while determining the annual rent on the ground that a hypothetical tenant would take such extra income into account while considering what rent he can afford to offer for such building. That being the correct position under S. 154 (1) of the Act, High Court was right in confirming the enhancement of the annual rent from Rs. 44,320 to Rs. 59.600.
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### Explanation:
the rent which he would be prepared to pay he would naturally take into consideration all the advantages, together with the disadvantages attached to the property, that, is the maximum beneficial use to which he would be able to put the property.In doing so he is bound to take into consideration the tact of the property being situated at an unique place as the instant property undoubtedly is, viz., at the juncture of two of the most prominent roads with the additional advantage of Chowpatty Sea Face being opposite to it where in the evenings and on week-ends, it cannot be questioned, large crowds usually gather. Coupled with this would be the advantage that a neon-sign advertisement can be vividly seen if fixed on the top of the building by people pedestrians and those in vehicles, from fairly tong distances in all directions, especially as the advertisement happens to be a rotating one. There can therefore be no doubt that if a property possesses such an amenity, such amenity is bound to add to its beneficial value and the tenant who desires to take it on lease is bound to take into consideration while making up his mind to the rent which he can profitably offer as to how much income he would be able to derive from exploiting" such an amenity. The measure of the hypothetical rent which such a tenant would offer would thus be the extent of the beneficial use to which he would be able to put the property on its being demised to him4. That being so it seems to us that the question whether an agreement under which such a tenant would be able to exploit the advantageous situation in which the property is situate amounts to a lease or license is totally irrelevant for the purpose of assessing the rateable value. Equally irrelevant is the question whether the income arising from such an agreement is rent or licence fee. To consider such income as irrelevant in the process of rating on the ground that it does not amount to rent but to licence fee is to misconstrue the true measure of the rent expected from the prospective tenantThe tenant would not only take into consideration the actual rent derived from the property but also such other income which he would be able to extract from the situation of the property by exploiting as best as he can the beneficial use to which the property is capable of being put. Therefore, the mere fact that the income from the agreement is not rent but licence fee and therefore Cannot be added to the actual rent fetched by the property does not justify on any principle of rating or any construction of section 154 of the Act, disregard of it while estimating the rent which the property would be expected to fetch5. It is true that the rating was so far made including the year in question on the basis of the actual rent derived from the property. That appears to have been done because of the restrictions under the Bombay Rent Act by reason of which the property cannot be leased at rent higher than the standard rent allowed under the provisions of that Act. Since no hypothetical tenant would pay rent higher than such standard rent the actual rent would ordinarily be the rent expected from a hypothetical tenant. It istrue, as observed earlier, that the hypothetical rent cannot be in view of the rent restrictions higher than the actual rent. But the income arising under the said agreement is not rent realised from letting out any part of the property to the Company but is in consideration of the exclusive privilege granted to it of displaying its neon signadvertisement.It ismanifest that the user thereunder of part of the terrace adds, to the beneficial value of the building. For such user the owner can legitimately expect something extra over and above the standard rent of the building. Though the owner of the building cannot charge rent over and above that which is permissible under the provisions of the Rent Act, there is nothing in that Act which prohibits him from charging an amount from an advertiser in consideration of the privilege of displaying hisadvertisement.A hypothetical tenant therefore, would take into consideration such extra income arising from the special advantage attached to the building and would be prepared to pay over and above the actual rent something in respect of such an additional advantageIt may be observed that it was never argued before the High Court that the agreement whether the said amount was rent or licence fee, added to the beneficial value of the building, that though the roof on the terms of that agreement could not be said to have been demised, what had to be considered under Section 127 (a) for assessing the annual rent of the building was the rent which a hypothetical tenant was expected to pay and not the actual rent, and whether such hypothetical tenant would or would not take into consideration the extra income de rived from the use of the roof for the advertising hoarding over and above the actual rent while deciding what rent he can profitably offer for the building. Such a question not having been raised or decided this decision also cannot assist the appellants7. In our view if the building or a part of it yields an extra income over and above the actual rent derived from it such income on the terms of S. 154 (1) of the Act can legitimately be taken into consideration by the assessing authority while determining the annual rent on the ground that a hypothetical tenant would take such extra income into account while considering what rent he can afford to offer for such building. That being the correct position under S. 154 (1) of the Act, High Court was right in confirming the enhancement of the annual rent from Rs. 44,320 to Rs. 59.600.
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Commnr.,Central Excise & Customs, Indore Vs. M/S. Parenteral Drugs (I) Ltd | 1. Delay condoned. 2. In this batch of Civil Appeals, the main issue which arose for determination before the Adjudicating Authority was whether Intravenous Fluids having a therapeutic value stood covered under Exemption Notification No.3/2001. 3. In the lead matter - M/s. Parenteral Drugs (I) Ltd. - the respondents were engaged in the manufacture of various types of Intravenous Fluids. They were availing the benefits of Notification No.6/2000, dated 1.3.2000. The said Notification was amended by Notification No.36/2000, dated 4.5.2000, whereby Entry No.47-A was added thereby exempting "Intravenous Fluids" from payment of excise duty. However, from 1.3.2001, the earlier notifications were replaced by Notification No.3/2001 which defined "Intravenous Fluids" as those which are used for sugar, electrolyte or fluid replenishment. In other words, open-ended exemption stood restricted by the above three qualifications. 4. Accordingly, show cause notices were issued in which it was alleged that the respondents were engaged in the manufacture of intravenous infusions of various kinds which becides the fluids included certain medicines having anti-bacterial, antibiotic and antimicrobial properties. It was alleged in the show cause notice that by addition of the following items to the Intravenous Fluids, the product attained therapeutic value and, consequently, it fell outside Notification No.3/2001 which defined IV Fluids as those used for sugar, electrolyte or fluid replenishment. 5. The items added to the fluids are as follows:(a) Ciprofloxacin I.P.(b) Metronidazole I.P.(c) PDZOLE-D (d) Ciprodex(e) Tinipidi Isotonic Infusion, and(f) Mannitol I.P. 6. The most important aspect to be noted is that in the 2001-2002 Budget, an explanation was inserted in Notification No.36/2000, clarifying that only such IV fluids which were used for sugar, electrolyte or fluid replenishment, were exempt from duty and not other IV fluids. This provision in the Budget was relied upon by the Department in the show cause notice(s) to deny the benefit of exemption claimed by the respondents under Notification No.3/2001. Unfortunately, despite detailed analysis of the notification in question by the Commissioner, the Tribunal has not examined this aspect and, therefore, the matter needs to be remitted to the Tribunal to give its finding as to what is the effect of the 2001-2002 Budget which restricts the definition of IV Fluids in terms of the above three qualifications. 7. There is one more aspect which the Tribunal is required to consider. In the labels of the respondent-Company, there is a warning stating that IV fluid manufactured by the assessee is Schedule-H Drug. What is argued on behalf of the assessee(s) is that because of addition to the IV Fluid of one of the above-mentioned six items, the product manufactured is required to be sold as a Schedule-H drug. On the other hand, the Department has placed reliance on the Drugs and Cosmetics Rules, 1945 read with Schedule-H to indicate that when IV Fluid has dominant therapeutic value, it will not come within the exemption because it has to be treated as a Schedule-H drug. We do wish to express any opinion on this point. Suffice it to state that on the above two questions/issues, the matter needs to be remitted to the Tribunal for consideration in accordance with law. 8. We may add that exemption notifications have to be read strictly. We may also add that the burden is on the assessee to prove that the item falls within the four corners of the exemption notification. 9. Before concluding, we may state that if on the second issue, regarding Schedule-H Drug, as spelt out hereinabove, if the Tribunal feels that the matter requires further evidence, it may either itself decide that point after giving opportunity to the parties or it may remit the matter to the Adjudicating Authority for its decision on factual aspect in accordance with law. 10. | 1[ds]s of thethere is a warning stating that IV fluid manufactured by the assessee isDrug. What is argued on behalf of the assessee(s) is that because of addition to the IV Fluid of one of thesix items, the product manufactured is required to be sold as adrug. On the other hand, the Department has placed reliance on the Drugs and Cosmetics Rules, 1945 read withto indicate that when IV Fluid has dominant therapeutic value, it will not come within the exemption because it has to be treated as adrug. We do wish to express any opinion on this point. Suffice it to state that on the above two questions/issues, the matter needs to be remitted to the Tribunal for consideration in accordance withmay add that exemption notifications have to be read strictly. We may also add that the burden is on the assessee to prove that the item falls within the fourre concluding, we may state that if on the second issue, regardingDrug, as spelt out hereinabove, if the Tribunal feels that the matter requires further evidence, it may either itself decide that point after giving opportunity to the parties or it may remit the matter to the Adjudicating Authority for its decision on factual aspect in accordance with law. | 1 | 720 | 233 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
### Input:
1. Delay condoned. 2. In this batch of Civil Appeals, the main issue which arose for determination before the Adjudicating Authority was whether Intravenous Fluids having a therapeutic value stood covered under Exemption Notification No.3/2001. 3. In the lead matter - M/s. Parenteral Drugs (I) Ltd. - the respondents were engaged in the manufacture of various types of Intravenous Fluids. They were availing the benefits of Notification No.6/2000, dated 1.3.2000. The said Notification was amended by Notification No.36/2000, dated 4.5.2000, whereby Entry No.47-A was added thereby exempting "Intravenous Fluids" from payment of excise duty. However, from 1.3.2001, the earlier notifications were replaced by Notification No.3/2001 which defined "Intravenous Fluids" as those which are used for sugar, electrolyte or fluid replenishment. In other words, open-ended exemption stood restricted by the above three qualifications. 4. Accordingly, show cause notices were issued in which it was alleged that the respondents were engaged in the manufacture of intravenous infusions of various kinds which becides the fluids included certain medicines having anti-bacterial, antibiotic and antimicrobial properties. It was alleged in the show cause notice that by addition of the following items to the Intravenous Fluids, the product attained therapeutic value and, consequently, it fell outside Notification No.3/2001 which defined IV Fluids as those used for sugar, electrolyte or fluid replenishment. 5. The items added to the fluids are as follows:(a) Ciprofloxacin I.P.(b) Metronidazole I.P.(c) PDZOLE-D (d) Ciprodex(e) Tinipidi Isotonic Infusion, and(f) Mannitol I.P. 6. The most important aspect to be noted is that in the 2001-2002 Budget, an explanation was inserted in Notification No.36/2000, clarifying that only such IV fluids which were used for sugar, electrolyte or fluid replenishment, were exempt from duty and not other IV fluids. This provision in the Budget was relied upon by the Department in the show cause notice(s) to deny the benefit of exemption claimed by the respondents under Notification No.3/2001. Unfortunately, despite detailed analysis of the notification in question by the Commissioner, the Tribunal has not examined this aspect and, therefore, the matter needs to be remitted to the Tribunal to give its finding as to what is the effect of the 2001-2002 Budget which restricts the definition of IV Fluids in terms of the above three qualifications. 7. There is one more aspect which the Tribunal is required to consider. In the labels of the respondent-Company, there is a warning stating that IV fluid manufactured by the assessee is Schedule-H Drug. What is argued on behalf of the assessee(s) is that because of addition to the IV Fluid of one of the above-mentioned six items, the product manufactured is required to be sold as a Schedule-H drug. On the other hand, the Department has placed reliance on the Drugs and Cosmetics Rules, 1945 read with Schedule-H to indicate that when IV Fluid has dominant therapeutic value, it will not come within the exemption because it has to be treated as a Schedule-H drug. We do wish to express any opinion on this point. Suffice it to state that on the above two questions/issues, the matter needs to be remitted to the Tribunal for consideration in accordance with law. 8. We may add that exemption notifications have to be read strictly. We may also add that the burden is on the assessee to prove that the item falls within the four corners of the exemption notification. 9. Before concluding, we may state that if on the second issue, regarding Schedule-H Drug, as spelt out hereinabove, if the Tribunal feels that the matter requires further evidence, it may either itself decide that point after giving opportunity to the parties or it may remit the matter to the Adjudicating Authority for its decision on factual aspect in accordance with law. 10.
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1
### Explanation:
s of thethere is a warning stating that IV fluid manufactured by the assessee isDrug. What is argued on behalf of the assessee(s) is that because of addition to the IV Fluid of one of thesix items, the product manufactured is required to be sold as adrug. On the other hand, the Department has placed reliance on the Drugs and Cosmetics Rules, 1945 read withto indicate that when IV Fluid has dominant therapeutic value, it will not come within the exemption because it has to be treated as adrug. We do wish to express any opinion on this point. Suffice it to state that on the above two questions/issues, the matter needs to be remitted to the Tribunal for consideration in accordance withmay add that exemption notifications have to be read strictly. We may also add that the burden is on the assessee to prove that the item falls within the fourre concluding, we may state that if on the second issue, regardingDrug, as spelt out hereinabove, if the Tribunal feels that the matter requires further evidence, it may either itself decide that point after giving opportunity to the parties or it may remit the matter to the Adjudicating Authority for its decision on factual aspect in accordance with law.
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DELHI DEVELOPMENT AUTHORITY Vs. GODFREY PHILLIPS (I) LTD. & ORS | of Mandamus shows that the purchaser is out of possession. Therefore, the condition in Indore Development Authority for lapsing of the acquisition is not satisfied. Therefore, as per the purchaser, the possession has been taken of the part of the land and compensation has been deposited in respect of the remaining land. Thus, the twin conditions as laid down by this Court are not satisfied. 42. Even otherwise, the stand of the appellant is that the possession of the entire land was taken on 14.7.1987 whereas possession of land measuring 12 Bigha 18 Biswa was handed over to it, whereas the possession of the remaining land measuring 15 Bigha 10 Biswa is with the Government of Delhi. Therefore, the purchaser is not entitled to any declaration of lapsing of acquisition proceedings inter alia on the ground that it has purchased the land after vesting of the land with the State and the possession has been taken of the land measuring 28 Bigha 8 Biswa and the compensation has also been deposited in respect of entire land, though the compensation in respect of land admeasuring 12 Bigha 18 Biswa was disbursed. The remaining amount of compensation was with the Land Acquisition Collector. 43. Still further, the purchaser had purchased the property after vesting of the land with the State. In fact, in Manav Dharam Trust, earlier three Judge Bench judgment in M. Venkatesh was not even referred to. The purchaser has no right to claim lapsing of acquisition proceedings in view of the recent larger Bench judgment of this Court reported as Shiv Kumar & Anr. v. Union of India & Ors. (2019) 10 SCC 229 wherein the judgment rendered by two-Judge Bench in Manav Dharam Trust was not found to be a good law. Hence, the purchaser has no right to claim a declaration sought for. It was held as under: 26. In Manav Dharam Trust [State (NCT of Delhi) v. Manav Dharam Trust, (2017) 6 SCC 751 : (2017) 3 SCC (Civ) 611] , even the provisions of the Act of 2013 have not been taken into consideration, which prohibits such transactions in particular provisions of Section 11, including the proviso to Section 24(2). Apart from that, it was not legally permissible to a Division Bench to ignore the decisions of the larger Bench comprising of three Judges and of coordinate Bench. They were not per incuriam and were relevant for deciding the issue of taking possession under the 1894 Act, at the instance of purchaser. In case it wanted to depart from the view taken earlier, it ought to have referred the matter to a larger Bench. It has been ignored that when a purchase is void, then no declaration can be sought on the ground that the land acquisition under the 2013 Act has lapsed due to illegality/irregularity of proceedings of taking possession under the 1894 Act. No declaration can be sought by a purchaser under Section 24 that acquisition has lapsed, effect of which would be to get back the land. They cannot seek declaration that acquisition made under the 1894 Act has lapsed by the challenge to the proceedings of taking possession under the 1894 Act. Such right was not available after the purchase in 2000 and no such right has been provided to the purchasers under the 2013 Act also. Granting a right to question acquisition would be against the public policy and the law which prohibits such transactions; it cannot be given effect to under the guise of subsequent legislation containing similar provisions. Subsequent legislation does not confer any new right to a person based on such void transaction; instead, it includes a provision prohibiting such transactions without permission of the Collector as provided in Section 11(4). 27. Thus, we have to follow the decisions including that of larger Bench mentioned above, laying down the law on the subject, which still holds the field and were wrongly distinguished. The binding value of the decisions of larger and coordinate Benches have been ignored while deciding Manav Dharam Trust case [State (NCT of Delhi) v. Manav Dharam Trust, (2017) 6 SCC 751 : (2017) 3 SCC (Civ) 611] , it was not open to it to take a different view. The decision in Manav Dharam Trust [State (NCT of Delhi) v. Manav Dharam Trust, (2017) 6 SCC 751 : (2017) 3 SCC (Civ) 611] is per incuriam in light of this decision of this Court in Mamleshwar Prasad v. Kanhaiya Lal [Mamleshwar Prasad v. Kanhaiya Lal, (1975) 2 SCC 232] , A.R. Antulay v. R.S. Nayak [A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602 : 1988 SCC (Cri) 372] , State of U.P. v. Synthetics and Chemicals Ltd. [State of U.P. v. Synthetics and Chemicals Ltd., (1991) 4 SCC 139] , B. Shama Rao v. State (UT of Pondicherry) [B. Shama Rao v. State (UT of Pondicherry), AIR 1967 SC 1480 ] , MCD v. Gurnam Kaur [MCD v. Gurnam Kaur, (1989) 1 SCC 101] , State of M.P. v. Narmada Bachao Andolan [State of M.P. v. Narmada Bachao Andolan, (2011) 7 SCC 639 : (2011) 3 SCC (Civ) 875 : AIR 2011 SC 1989 ] , Hyder Consulting (UK) Ltd. v. State of Orissa [Hyder Consulting (UK) Ltd. v. State of Orissa, (2015) 2 SCC 189 : (2015) 2 SCC (Civ) 38] and Sant Lal Gupta v. Modern Coop. Group Housing Society Ltd. [Sant Lal Gupta v. Modern Coop. Group Housing Society Ltd., (2010) 13 SCC 336 : (2010) 4 SCC (Civ) 904] 28. We hold that Division Bench in Manav Dharam Trust [State (NCT of Delhi) v. Manav Dharam Trust, (2017) 6 SCC 751 : (2017) 3 SCC (Civ) 611] does not lay down the law correctly. Given the several binding precedents which are available and the provisions of the 2013 Act, we cannot follow the decision in Manav Dharam Trust [State (NCT of Delhi) v. Manav Dharam Trust, (2017) 6 SCC 751 : (2017) 3 SCC (Civ) 611] and overrule it. | 1[ds]29. We do not find any merit in the arguments raised by the learned counsel for the purchaser. The writ petition was filed after the commencement of the 2013 Act on a short question that the acquisition proceedings stand lapsed. This Court in Indore Development Authority has held that twin conditions have to be satisfied before proceedings can be said to be lapsed i.e., possession not taken and/or compensation not paid. This Court examining the question of payment or deposit in the light of the Standing Order No. 28 issued in 1909 by the State of Punjab and as applicable to Delhi also, provided five modes of payment in Paras 74 and 75. It has been held as under:226.Thus, in our opinion, the word paid as used in Section 24(2) does not include within its meaning the word deposited, which has been used in the proviso to Section 24(2). Section 31 of the 1894 Act, deals with the deposit as envisaged in Section 31(2) on being prevented from making the payment even if the amount has been deposited in the treasury under the Rules framed under Section 55 or under the Standing Orders, that would carry the interest as envisaged under Section 34, but acquisition would not lapse on such deposit being made in the treasury. In case amount has been tendered and the landowner has refused to receive it, it cannot be said that the liability arising from non- payment of the amount is that of lapse of acquisition. Interest would follow in such a case also due to non-deposit of the amount. Equally, when the landowner does not accept the amount, but seeks a reference for higher compensation, there can be no question of such individual stating that he was not paid the amount (he was determined to be entitled to by the Collector). In such case, the landowner would be entitled to the compensation determined by the Reference Court.244. The proviso to Section 24(2) of the 2013 Act, intends that the Collector would have sufficient funds to deposit it with respect to the majority of landholdings. In case compensation has not been paid or deposited with respect to majority of landholdings, all the beneficiaries are entitled for higher compensation. In case money has not been deposited with the Land Acquisition Collector or in the treasury or in court with respect to majority of landholdings, the consequence has to follow of higher compensation as per the proviso to Section 24(2) of the 2013 Act. Even otherwise, if deposit in treasury is irregular, then the interest would follow as envisaged under Section 34 of the 1894 Act. Section 24(2) is attracted if acquisition proceeding is not completed within 5 years after the pronouncement of award…………………….. The 2013 Act applies only to the pending proceedings in which possession has not been taken or compensation has not paid and not to a case where proceedings have been concluded long back, Section 24(2) is not a tool to revive those proceedings and to question the validity of taking acquisition proceedings due to which possession in 1960s, 1970s, 1980s were taken, or to question the manner of deposit of amount in the treasury. The 2013 Act never intended revival of such claims. In case such landowners were interested in questioning the proceedings of taking possession or mode of deposit with the treasury, such a challenge was permissible within the time available with them to do so. They cannot wake from deep slumber and raise such claims in order to defeat the acquisition validly made. In our opinion, the law never contemplates—nor permits—misuse much less gross abuse of its provisions to reopen all the acquisitions made after 1984, and it is the duty of the court to examine the details of such claims. There are several litigations before us where landowners, having lost the challenge to the validity of acquisition proceedings and after having sought enhancement of the amount in the reference succeeding in it nevertheless are seeking relief arguing about lapse of acquisition after several rounds of litigation.247. The question which arises whether there is any difference between taking possession under the 1894 Act and the expression physical possession used in Section 24(2). As a matter of fact, what was contemplated under the 1894 Act, by taking the possession meant only physical possession of the land. Taking over the possession under the 2013 Act always amounted to taking over physical possession of the land. When the State Government acquires land and draws up a memorandum of taking possession, that amounts to taking the physical possession of the land. On the large chunk of property or otherwise which is acquired, the Government is not supposed to put some other person or the police force in possession to retain it and start cultivating it till the land is used by it for the purpose for which it has been acquired. The Government is not supposed to start residing or to physically occupy it once possession has been taken by drawing the inquest proceedings for obtaining possession thereof. Thereafter, if any further retaining of land or any re-entry is made on the land or someone starts cultivation on the open land or starts residing in the outhouse, etc. is deemed to be the trespasser on land which is in possession of the State. The possession of trespasser always inures for the benefit of the real owner that is the State Government in the case.30. It was held that under Section 16 of the Act, vesting of title in the Government is complete immediately upon taking of possession, and the acquired land becomes the property of the State under Sections 16 and 17 of the Act without any condition or limitation either as to title or possession. It was held that if once panchnama had been drawn of taking possession, thereafter re-entry or retaining the possession is that of the trespasser. This Court held as under:249. The concept of possession is complex one. It comprises the right to possess and to exclude others, essential is animus possidendi. Possession depends upon the character of the thing which is possessed. If the land is not capable of any use, mere non-user of it does not lead to the inference that the owner is not in possession. The established principle is that the possession follows title. Possession comprises of the control over the property. The element of possession is the physical control or the power over the object and intention or will to exercise the power. Corpus and animus are both necessary and have to co-exist. Possession of the acquired land is taken under the 1894 Act under Section 16 or 17, as the case may be. The Government has a right to acquire the property for public purpose. The stage under Section 16 comes for taking possession after issuance of notification under Section 4(1) and stage of Section 9(1). Under Section 16, vesting is after passing of the award on taking possession and under Section 17 before passing of the award.345. Section 24(2) is sought to be used as an umbrella so as to question the concluded proceedings in which possession has been taken, development has been made, and compensation has been deposited, but may be due to refusal, it has not been collected. The challenge to the acquisition proceedings cannot be made within the parameters of Section 24(2) once panchnama had been drawn of taking possession, thereafter re-entry or retaining the possession is that of the trespasser. The legality of the proceedings cannot be challenged belatedly, and the right to challenge cannot be revived by virtue of the provisions of Section 24(2). Section 24(2) only contemplates lethargy/inaction of the authorities to act for five years or more. It is very easy to lay a claim that physical possession was not taken, with respect to open land. Yet, once vesting takes place, possession is presumed to be that of the owner i.e. the State Government and land has been transferred to the beneficiaries, corporations, authorities, etc. for developmental purposes and third-party interests have intervened. Such challenges cannot be entertained at all under the purview of Section 24(2) as it is not what is remotely contemplated in Section 24(2) of the 2013 Act.31. This Court concluded as under:366.3. The word or used in Section 24(2) between possession and compensation has to be read as nor or as and. The deemed lapse of land acquisition proceedings under Section 24(2) of the 2013 Act takes place where due to inaction of authorities for five years or more prior to commencement of the said Act, the possession of land has not been taken nor compensation has been paid. In other words, in case possession has been taken, compensation has not been paid then there is no lapse. Similarly, if compensation has been paid, possession has not been taken then there is no lapse.366.4. The expression paid in the main part of Section 24(2) of the 2013 Act does not include a deposit of compensation in court. The consequence of non-deposit is provided in the proviso to Section 24(2) in case it has not been deposited with respect to majority of landholdings then all beneficiaries (landowners) as on the date of notification for land acquisition under Section 4 of the 1894 Act shall be entitled to compensation in accordance with the provisions of the 2013 Act. In case the obligation under Section 31 of the Land Acquisition Act, 1894 has not been fulfilled, interest under Section 34 of the said Act can be granted. Non- deposit of compensation (in court) does not result in the lapse of land acquisition proceedings. In case of non-deposit with respect to the majority of holdings for five years or more, compensation under the 2013 Act has to be paid to the landowners as on the date of notification for land acquisition under Section 4 of the 1894 Act.366.5. In case a person has been tendered the compensation as provided under Section 31(1) of the 1894 Act, it is not open to him to claim that acquisition has lapsed under Section 24(2) due to non-payment or non-deposit of compensation in court. The obligation to pay is complete by tendering the amount under Section 31(1). The landowners who had refused to accept compensation or who sought reference for higher compensation, cannot claim that the acquisition proceedings had lapsed under Section 24(2) of the 2013 Act.366.7. The mode of taking possession under the 1894 Act and as contemplated under Section 24(2) is by drawing of inquest report/memorandum. Once award has been passed on taking possession under Section 16 of the 1894 Act, the land vests in State there is no divesting provided under Section 24(2) of the 2013 Act, as once possession has been taken there is no lapse under Section 24(2).366.9. Section 24(2) of the 2013 Act does not give rise to new cause of action to question the legality of concluded proceedings of land acquisition. Section 24 applies to a proceeding pending on the date of enforcement of the 2013 Act i.e. 1-1-2014. It does not revive stale and time-barred claims and does not reopen concluded proceedings nor allow landowners to question the legality of mode of taking possession to reopen proceedings or mode of deposit of compensation in the treasury instead of court to invalidate acquisition.34. In another judgment reported as State of Haryana & Anr. v. Devander Sagar & Ors.(2016) 14 SCC 746, this Court has held that the acquisition proceedings cannot be quashed of one or two land owners. It is the duty of the land owners to challenge the acquisition proceedings at lease before award is pronounced and possession is taken. It was held as under:11. It would be pertinent to clarify that the quashing of the entire acquisition proceeding has to be explicitly expressed. This Court has in Shyam Nandan Prasad v. State of Bihar [Shyam Nandan Prasad v. State of Bihar, (1993) 4 SCC 255] , Delhi Admn. v. Gurdip Singh Uban [Delhi Admn. v. Gurdip Singh Uban, (1999) 7 SCC 44] , Delhi Admn. v. Gurdip Singh Uban [Delhi Admn. v. Gurdip Singh Uban, (2000) 7 SCC 296] and T.N. Housing Board v. S. Saraswathy [T.N. Housing Board v. S. Saraswathy, (2015) 8 SCC 723 : (2015) 4 SCC (Civ) 443] reiterated and restated the established and consistent view that quashing of acquisition proceedings at the instance of one or two landowners does not have the effect of nullifying the entire acquisition. In A.P. Industrial Infrastructure Corpn. Ltd. v. Chinthamaneni Narasimha Rao [A.P. Industrial Infrastructure Corpn. Ltd. v. Chinthamaneni Narasimha Rao, (2012) 12 SCC 797 : (2013) 2 SCC (Civ) 731] this Court has reiterated the established proposition that landowners who are aggrieved by the acquisition proceedings would have to lay a challenge to them at least before an award is pronounced and possession of the land is taken over by the Government. Numerous decisions of this Court have been discussed obviating the need to analyse all of them once again. However, generally speaking, the courts come to the succour of those who approach it. In some instances, equities are equalised by allowing subsequent slothful petitioners, belatedly and conveniently jumping on the bandwagons, to receive, at the highest, compensation granted to others sans interest.35. The original land owner had filed a writ petition before the Delhi High Court but such writ petition was dismissed on 02.12.1985. The Special Leave Petition was withdrawn on 12.09.1989 even though the reservation was conveyed by the learned counsel appearing for the appellant. Such withdrawal was after the judgment of the High Court in Balbir Singh case. The original land owners have made a conscious decision not to continue with the Special Leave Petitions. Thus, all the objections which were available to the original land owner including the purchaser up to that stage cannot be permitted to be raised again.36. In Balak Ram-II, the acquisition proceedings were quashed since the objections filed by the land owners were not heard or decided in accordance with law. Thus, Balak Ram-II is a judgment in personam and not in rem, as the grievance of the writ petitioners was specific to them. The judgment of the High Court in Balbir Singh is based upon the fact that in Balak Ram-II, the entire notification under Section 6 of the Act stands quashed. Such aspect has not found favor in Abhey Ram and Gurdip Singh Uban-I and II. Otherwise also, non-hearing of objections filed would be limited to those land owners who have filed objections. The predecessor-in-interest of the purchaser has not filed any objections under Section 5A of the Act, therefore, the judgment in Balak Ram-II cannot come to the aid of land owners who have never preferred any objections.37. Therefore, the judgment in Balbir Singh does not confer any right on the other land owners who have not disputed the acquisition proceedings on the ground of lack of effective hearing of objections under Section 5-A of the Act. Since the original land owner never filed any objections under Section 5-A of the Act, the purchaser cannot seek the relief which was not available even to the original land owner.38. The purchaser has purchased the property knowing fully well that the vendor has not disputed the acquisition proceedings. But on the basis of an order passed in Balbir Singh, it was conveyed and accepted by the purchaser, that the acquisition stands quashed and original land owner was in possession of the land. Since Sudan Singh, affirming the order in Balbir Singh has not been approved by this Court in the three judgments referred hereinabove (Abhey Ram, Gurdip Singh Uban-I and Gurdip Singh Uban-II), no right would accrue to the original land owner or the purchaser. The High Court in the impugned order has not noticed any of the three judgments of this Court in Abhey Ram, Gurdip Singh Uban-I and Gurdip Singh Uban-II nullifying the effect of Balbir Singh and instead ordered the purchaser to deposit twice of the amount paid to the original land owner. The condition of payment of compensation in Balbir Singh by the land owners does not survive in view of the fact that such judgment has not been approved by this Court.39. In the present case, as per the purchaser itself, the possession of Part A land comprising in Khasra No. 384 (4-6), 385 (4-6) and 390 (4-6) total measuring 12 Bigha and 18 Biswa was taken by the Appellant and the compensation was paid. The argument is that in terms of the impugned orders of the High Court, the purchaser had deposited Rs.16,61,774/-, therefore, the acquisition stand lapsed. Such deposit is in turn based on the order of the High Court in Balbir Singh. The deposit by the purchaser, either in terms of the impugned order or the order passed in Balbir Singh, is wholly inconsequential. The amount of compensation was paid on behalf of the appellant. Therefore, the compensation of the acquired land paid by the appellant cannot lead to lapsing of the acquisition in terms of Indore Development Authority. The purchaser in its written submissions had made no reference to the later judgments of this Court referred to above. The deposit in terms of the order of the High Court will not lead to lapsing of the acquisition proceedings, such orders being absolutely being illegal. Thus, in respect of Part A land, the purchaser cannot take shelter of the order, which had no legal value and stands nullified. Even otherwise, there could not be any direction to deposit the amount now after more than 25 years. The right which has been lost due to passage of time cannot be revived by virtue of deposit of the amount subsequent to orders of the High Court.40. In respect of Part B land, comprising of Khasra Nos. 376 (4-6), 377 (4-16), 381 Min (1-2), 383 (4-16), 386/1 Min (0-4) and 386/2 Min (0- 6) total 15 Bigha 10 Biswa, the stand of the appellant in the counter affidavit filed before the High Court was that the physical possession of the acquired land falling in khasra no. 384(4-16), 385(4-06) & 390(4-06) in village Shayoorpur had been handed over to the respondent no. 2-Delhi Development Authority on 14.07.87 by the LAC/Land & Building Department, Govt. of National Capital Territory of Delhi, however physical possession of khasra no 386/1 Min. (0-04), 386/2 Min(0-06), 376(4-16), 377 (4-16), 381 Min (1-02), 383(4-16) has not been handed over to the respondent no. 2-Delhi Development Authority by the LAC/Land & Building Department, Govt. of National Capital Territory of Delhi. Still further, the purchaser in its IA had asserted that the lands of which possession has not been taken but compensation amount was placed in RD with LAC, bear Kh. No. 376(4-6), 377(4-16), 381 min. (1-2), 383 (4-16), 386/1 min. (0-4), 386/2 min. (0-6) total measuring 15 Bigha and 10 Biswa of Village Sayoorpur, Delhi. Thus, we find that possession was in fact taken of the entire acquired land and compensation was deposited. If the appellant had not been able to utilize the land on account an order of stay of dispossession in various writ petitions filed, that would not be a material fact to return a finding that the purchaser continues to be in possession. As reiterated above, after the panchnama had been prepared, the possession of the land owners would be that of a trespasser.41. The purchaser had in fact filed a Writ of Mandamus for delivering the possession of the entire acquired land. Such claim of Mandamus shows that the purchaser is out of possession. Therefore, the condition in Indore Development Authority for lapsing of the acquisition is not satisfied. Therefore, as per the purchaser, the possession has been taken of the part of the land and compensation has been deposited in respect of the remaining land. Thus, the twin conditions as laid down by this Court are not satisfied.42. Even otherwise, the stand of the appellant is that the possession of the entire land was taken on 14.7.1987 whereas possession of land measuring 12 Bigha 18 Biswa was handed over to it, whereas the possession of the remaining land measuring 15 Bigha 10 Biswa is with the Government of Delhi.Therefore, the purchaser is not entitled to any declaration of lapsing of acquisition proceedings inter alia on the ground that it has purchased the land after vesting of the land with the State and the possession has been taken of the land measuring 28 Bigha 8 Biswa and the compensation has also been deposited in respect of entire land, though the compensation in respect of land admeasuring 12 Bigha 18 Biswa was disbursed. The remaining amount of compensation was with the Land Acquisition Collector.43. Still further, the purchaser had purchased the property after vesting of the land with the State. In fact, in Manav Dharam Trust, earlier three Judge Bench judgment in M. Venkatesh was not even referred to. The purchaser has no right to claim lapsing of acquisition proceedings in view of the recent larger Bench judgment of this Court reported as Shiv Kumar & Anr. v. Union of India & Ors. (2019) 10 SCC 229 wherein the judgment rendered by two-Judge Bench in Manav Dharam Trust was not found to be a good law. Hence, the purchaser has no right to claim a declaration sought for. It was held as under:26. In Manav Dharam Trust [State (NCT of Delhi) v. Manav Dharam Trust, (2017) 6 SCC 751 : (2017) 3 SCC (Civ) 611] , even the provisions of the Act of 2013 have not been taken into consideration, which prohibits such transactions in particular provisions of Section 11, including the proviso to Section 24(2). Apart from that, it was not legally permissible to a Division Bench to ignore the decisions of the larger Bench comprising of three Judges and of coordinate Bench. They were not per incuriam and were relevant for deciding the issue of taking possession under the 1894 Act, at the instance of purchaser. In case it wanted to depart from the view taken earlier, it ought to have referred the matter to a larger Bench. It has been ignored that when a purchase is void, then no declaration can be sought on the ground that the land acquisition under the 2013 Act has lapsed due to illegality/irregularity of proceedings of taking possession under the 1894 Act. No declaration can be sought by a purchaser under Section 24 that acquisition has lapsed, effect of which would be to get back the land. They cannot seek declaration that acquisition made under the 1894 Act has lapsed by the challenge to the proceedings of taking possession under the 1894 Act. Such right was not available after the purchase in 2000 and no such right has been provided to the purchasers under the 2013 Act also. Granting a right to question acquisition would be against the public policy and the law which prohibits such transactions; it cannot be given effect to under the guise of subsequent legislation containing similar provisions. Subsequent legislation does not confer any new right to a person based on such void transaction; instead, it includes a provision prohibiting such transactions without permission of the Collector as provided in Section 11(4).27. Thus, we have to follow the decisions including that of larger Bench mentioned above, laying down the law on the subject, which still holds the field and were wrongly distinguished. The binding value of the decisions of larger and coordinate Benches have been ignored while deciding Manav Dharam Trust case [State (NCT of Delhi) v. Manav Dharam Trust, (2017) 6 SCC 751 : (2017) 3 SCC (Civ) 611] , it was not open to it to take a different view. The decision in Manav Dharam Trust [State (NCT of Delhi) v. Manav Dharam Trust, (2017) 6 SCC 751 : (2017) 3 SCC (Civ) 611] is per incuriam in light of this decision of this Court in Mamleshwar Prasad v. Kanhaiya Lal [Mamleshwar Prasad v. Kanhaiya Lal, (1975) 2 SCC 232] , A.R. Antulay v. R.S. Nayak [A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602 : 1988 SCC (Cri) 372] , State of U.P. v. Synthetics and Chemicals Ltd. [State of U.P. v. Synthetics and Chemicals Ltd., (1991) 4 SCC 139] , B. Shama Rao v. State (UT of Pondicherry) [B. Shama Rao v. State (UT of Pondicherry), AIR 1967 SC 1480 ] , MCD v. Gurnam Kaur [MCD v. Gurnam Kaur, (1989) 1 SCC 101] , State of M.P. v. Narmada Bachao Andolan [State of M.P. v. Narmada Bachao Andolan, (2011) 7 SCC 639 : (2011) 3 SCC (Civ) 875 : AIR 2011 SC 1989 ] , Hyder Consulting (UK) Ltd. v. State of Orissa [Hyder Consulting (UK) Ltd. v. State of Orissa, (2015) 2 SCC 189 : (2015) 2 SCC (Civ) 38] and Sant Lal Gupta v. Modern Coop. Group Housing Society Ltd. [Sant Lal Gupta v. Modern Coop. Group Housing Society Ltd., (2010) 13 SCC 336 : (2010) 4 SCC (Civ) 904]28. We hold that Division Bench in Manav Dharam Trust [State (NCT of Delhi) v. Manav Dharam Trust, (2017) 6 SCC 751 : (2017) 3 SCC (Civ) 611] does not lay down the law correctly. Given the several binding precedents which are available and the provisions of the 2013 Act, we cannot follow the decision in Manav Dharam Trust [State (NCT of Delhi) v. Manav Dharam Trust, (2017) 6 SCC 751 : (2017) 3 SCC (Civ) 611] and overrule it. | 1 | 12,379 | 4,912 | ### 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 Mandamus shows that the purchaser is out of possession. Therefore, the condition in Indore Development Authority for lapsing of the acquisition is not satisfied. Therefore, as per the purchaser, the possession has been taken of the part of the land and compensation has been deposited in respect of the remaining land. Thus, the twin conditions as laid down by this Court are not satisfied. 42. Even otherwise, the stand of the appellant is that the possession of the entire land was taken on 14.7.1987 whereas possession of land measuring 12 Bigha 18 Biswa was handed over to it, whereas the possession of the remaining land measuring 15 Bigha 10 Biswa is with the Government of Delhi. Therefore, the purchaser is not entitled to any declaration of lapsing of acquisition proceedings inter alia on the ground that it has purchased the land after vesting of the land with the State and the possession has been taken of the land measuring 28 Bigha 8 Biswa and the compensation has also been deposited in respect of entire land, though the compensation in respect of land admeasuring 12 Bigha 18 Biswa was disbursed. The remaining amount of compensation was with the Land Acquisition Collector. 43. Still further, the purchaser had purchased the property after vesting of the land with the State. In fact, in Manav Dharam Trust, earlier three Judge Bench judgment in M. Venkatesh was not even referred to. The purchaser has no right to claim lapsing of acquisition proceedings in view of the recent larger Bench judgment of this Court reported as Shiv Kumar & Anr. v. Union of India & Ors. (2019) 10 SCC 229 wherein the judgment rendered by two-Judge Bench in Manav Dharam Trust was not found to be a good law. Hence, the purchaser has no right to claim a declaration sought for. It was held as under: 26. In Manav Dharam Trust [State (NCT of Delhi) v. Manav Dharam Trust, (2017) 6 SCC 751 : (2017) 3 SCC (Civ) 611] , even the provisions of the Act of 2013 have not been taken into consideration, which prohibits such transactions in particular provisions of Section 11, including the proviso to Section 24(2). Apart from that, it was not legally permissible to a Division Bench to ignore the decisions of the larger Bench comprising of three Judges and of coordinate Bench. They were not per incuriam and were relevant for deciding the issue of taking possession under the 1894 Act, at the instance of purchaser. In case it wanted to depart from the view taken earlier, it ought to have referred the matter to a larger Bench. It has been ignored that when a purchase is void, then no declaration can be sought on the ground that the land acquisition under the 2013 Act has lapsed due to illegality/irregularity of proceedings of taking possession under the 1894 Act. No declaration can be sought by a purchaser under Section 24 that acquisition has lapsed, effect of which would be to get back the land. They cannot seek declaration that acquisition made under the 1894 Act has lapsed by the challenge to the proceedings of taking possession under the 1894 Act. Such right was not available after the purchase in 2000 and no such right has been provided to the purchasers under the 2013 Act also. Granting a right to question acquisition would be against the public policy and the law which prohibits such transactions; it cannot be given effect to under the guise of subsequent legislation containing similar provisions. Subsequent legislation does not confer any new right to a person based on such void transaction; instead, it includes a provision prohibiting such transactions without permission of the Collector as provided in Section 11(4). 27. Thus, we have to follow the decisions including that of larger Bench mentioned above, laying down the law on the subject, which still holds the field and were wrongly distinguished. The binding value of the decisions of larger and coordinate Benches have been ignored while deciding Manav Dharam Trust case [State (NCT of Delhi) v. Manav Dharam Trust, (2017) 6 SCC 751 : (2017) 3 SCC (Civ) 611] , it was not open to it to take a different view. The decision in Manav Dharam Trust [State (NCT of Delhi) v. Manav Dharam Trust, (2017) 6 SCC 751 : (2017) 3 SCC (Civ) 611] is per incuriam in light of this decision of this Court in Mamleshwar Prasad v. Kanhaiya Lal [Mamleshwar Prasad v. Kanhaiya Lal, (1975) 2 SCC 232] , A.R. Antulay v. R.S. Nayak [A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602 : 1988 SCC (Cri) 372] , State of U.P. v. Synthetics and Chemicals Ltd. [State of U.P. v. Synthetics and Chemicals Ltd., (1991) 4 SCC 139] , B. Shama Rao v. State (UT of Pondicherry) [B. Shama Rao v. State (UT of Pondicherry), AIR 1967 SC 1480 ] , MCD v. Gurnam Kaur [MCD v. Gurnam Kaur, (1989) 1 SCC 101] , State of M.P. v. Narmada Bachao Andolan [State of M.P. v. Narmada Bachao Andolan, (2011) 7 SCC 639 : (2011) 3 SCC (Civ) 875 : AIR 2011 SC 1989 ] , Hyder Consulting (UK) Ltd. v. State of Orissa [Hyder Consulting (UK) Ltd. v. State of Orissa, (2015) 2 SCC 189 : (2015) 2 SCC (Civ) 38] and Sant Lal Gupta v. Modern Coop. Group Housing Society Ltd. [Sant Lal Gupta v. Modern Coop. Group Housing Society Ltd., (2010) 13 SCC 336 : (2010) 4 SCC (Civ) 904] 28. We hold that Division Bench in Manav Dharam Trust [State (NCT of Delhi) v. Manav Dharam Trust, (2017) 6 SCC 751 : (2017) 3 SCC (Civ) 611] does not lay down the law correctly. Given the several binding precedents which are available and the provisions of the 2013 Act, we cannot follow the decision in Manav Dharam Trust [State (NCT of Delhi) v. Manav Dharam Trust, (2017) 6 SCC 751 : (2017) 3 SCC (Civ) 611] and overrule it.
### Response:
1
### Explanation:
out of possession. Therefore, the condition in Indore Development Authority for lapsing of the acquisition is not satisfied. Therefore, as per the purchaser, the possession has been taken of the part of the land and compensation has been deposited in respect of the remaining land. Thus, the twin conditions as laid down by this Court are not satisfied.42. Even otherwise, the stand of the appellant is that the possession of the entire land was taken on 14.7.1987 whereas possession of land measuring 12 Bigha 18 Biswa was handed over to it, whereas the possession of the remaining land measuring 15 Bigha 10 Biswa is with the Government of Delhi.Therefore, the purchaser is not entitled to any declaration of lapsing of acquisition proceedings inter alia on the ground that it has purchased the land after vesting of the land with the State and the possession has been taken of the land measuring 28 Bigha 8 Biswa and the compensation has also been deposited in respect of entire land, though the compensation in respect of land admeasuring 12 Bigha 18 Biswa was disbursed. The remaining amount of compensation was with the Land Acquisition Collector.43. Still further, the purchaser had purchased the property after vesting of the land with the State. In fact, in Manav Dharam Trust, earlier three Judge Bench judgment in M. Venkatesh was not even referred to. The purchaser has no right to claim lapsing of acquisition proceedings in view of the recent larger Bench judgment of this Court reported as Shiv Kumar & Anr. v. Union of India & Ors. (2019) 10 SCC 229 wherein the judgment rendered by two-Judge Bench in Manav Dharam Trust was not found to be a good law. Hence, the purchaser has no right to claim a declaration sought for. It was held as under:26. In Manav Dharam Trust [State (NCT of Delhi) v. Manav Dharam Trust, (2017) 6 SCC 751 : (2017) 3 SCC (Civ) 611] , even the provisions of the Act of 2013 have not been taken into consideration, which prohibits such transactions in particular provisions of Section 11, including the proviso to Section 24(2). Apart from that, it was not legally permissible to a Division Bench to ignore the decisions of the larger Bench comprising of three Judges and of coordinate Bench. They were not per incuriam and were relevant for deciding the issue of taking possession under the 1894 Act, at the instance of purchaser. In case it wanted to depart from the view taken earlier, it ought to have referred the matter to a larger Bench. It has been ignored that when a purchase is void, then no declaration can be sought on the ground that the land acquisition under the 2013 Act has lapsed due to illegality/irregularity of proceedings of taking possession under the 1894 Act. No declaration can be sought by a purchaser under Section 24 that acquisition has lapsed, effect of which would be to get back the land. They cannot seek declaration that acquisition made under the 1894 Act has lapsed by the challenge to the proceedings of taking possession under the 1894 Act. Such right was not available after the purchase in 2000 and no such right has been provided to the purchasers under the 2013 Act also. Granting a right to question acquisition would be against the public policy and the law which prohibits such transactions; it cannot be given effect to under the guise of subsequent legislation containing similar provisions. Subsequent legislation does not confer any new right to a person based on such void transaction; instead, it includes a provision prohibiting such transactions without permission of the Collector as provided in Section 11(4).27. Thus, we have to follow the decisions including that of larger Bench mentioned above, laying down the law on the subject, which still holds the field and were wrongly distinguished. The binding value of the decisions of larger and coordinate Benches have been ignored while deciding Manav Dharam Trust case [State (NCT of Delhi) v. Manav Dharam Trust, (2017) 6 SCC 751 : (2017) 3 SCC (Civ) 611] , it was not open to it to take a different view. The decision in Manav Dharam Trust [State (NCT of Delhi) v. Manav Dharam Trust, (2017) 6 SCC 751 : (2017) 3 SCC (Civ) 611] is per incuriam in light of this decision of this Court in Mamleshwar Prasad v. Kanhaiya Lal [Mamleshwar Prasad v. Kanhaiya Lal, (1975) 2 SCC 232] , A.R. Antulay v. R.S. Nayak [A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602 : 1988 SCC (Cri) 372] , State of U.P. v. Synthetics and Chemicals Ltd. [State of U.P. v. Synthetics and Chemicals Ltd., (1991) 4 SCC 139] , B. Shama Rao v. State (UT of Pondicherry) [B. Shama Rao v. State (UT of Pondicherry), AIR 1967 SC 1480 ] , MCD v. Gurnam Kaur [MCD v. Gurnam Kaur, (1989) 1 SCC 101] , State of M.P. v. Narmada Bachao Andolan [State of M.P. v. Narmada Bachao Andolan, (2011) 7 SCC 639 : (2011) 3 SCC (Civ) 875 : AIR 2011 SC 1989 ] , Hyder Consulting (UK) Ltd. v. State of Orissa [Hyder Consulting (UK) Ltd. v. State of Orissa, (2015) 2 SCC 189 : (2015) 2 SCC (Civ) 38] and Sant Lal Gupta v. Modern Coop. Group Housing Society Ltd. [Sant Lal Gupta v. Modern Coop. Group Housing Society Ltd., (2010) 13 SCC 336 : (2010) 4 SCC (Civ) 904]28. We hold that Division Bench in Manav Dharam Trust [State (NCT of Delhi) v. Manav Dharam Trust, (2017) 6 SCC 751 : (2017) 3 SCC (Civ) 611] does not lay down the law correctly. Given the several binding precedents which are available and the provisions of the 2013 Act, we cannot follow the decision in Manav Dharam Trust [State (NCT of Delhi) v. Manav Dharam Trust, (2017) 6 SCC 751 : (2017) 3 SCC (Civ) 611] and overrule it.
|
National Organic Chemical Inds. Ltd Vs. Miheer H. Mafatlal | shares in favour of the appellant was in breach of the injunction order of the City Civil Court.3. Against the said order, the 1st respondent herein and MIL filed original appeal (OJ No. 16 of 1994) and cross appeal before the Division Bench of the said High Court. Even in the said appeal the appellant was not made a party. The Appellate Bench dismissed the challenge of the 1st respondent for the grant of approval to the Amalgamation Scheme but confirmed the findings of the Trial Court that the allotment of the shares in favour of appellant by the MIL was in contravention of the injunction order. The approval of the scheme of amalgamation has since become final.4. In this appeal the appellant who is directly affected by the findings of the Learned Company Judge as well as the Appellate Court after obtaining permission to file S.L.P. and leave to appeal is challenging the said finding before us. 5. Learned Senior Counsel appearing for the appellant herein raised the following contentions for our consideration:- 1. In a Section 391-394 petition, the Company Court could have only decided the question as to grant of sanction or reject the Scheme of Amalgamation placed before it.2. The Company Court could not have gone into the question of title of individual shareholders in a proceedings under Sections 391-394.3. In any event, in the present case, as a Scheme was approved by well over 75% in value of the shareholders in the General Body Meeting even after excluding the Shareholding of the Appellant the issue of validity of allotment of shares to the Appellant did not arise. Hence, the Company Court could not have gone into the question of title of appellants share in MIL.4. Under the Companies Act a person could assail the allotment of shares only by a petition for rectification under Section 155 of the Companies Act as it stood at the relevant time and no such petition having been filed at that time, a challenge to the allotment of share in favour of the appellant had become time barred by December, 1990. Hence, it was not open to the Company Court to go into the validity of the issuance of the shares by the MIL in favour of the appellant. 6. At this stage, we must notice in spite of service of notice through publication in newspapers, the respondent has not chosen to appear and contest the case. We are also told that so far as the allegation of violation of the injunction granted by the City Civil Court is concerned, the same is being adjudicated in the said Court by initiating contempt proceedings by the concerned parties and it is still pending. 7. Learned Counsel for the appellant in this appeal apart from the above recorded arguments, contends that the appellant will be seriously affected by the findings recorded by the Company Court as well as by the Appellate Court in regard to the violation of the injunction order which in turn affects the title of the appellant over the shares held by it in MIL. He submitted that the appellant has not been made a party either to the suit, the Company Petition or in appeal and in spite of the same, adverse order has been passed affecting its right. He also contends that the Company Court had no jurisdiction whatsoever to have gone into the question of validity of the transaction between the appellant MIL in an Amalgamation Proceedings where the scope of enquiry is only to examine whether the statutorily required members of the Company have approved the Scheme or not. It was pointed out from the findings of the courts below that the Scheme has been approved by more than 75% of the members of the MIL even excluding the voting strength of the appellant. 8. Having heard the learned Counsel for the appellant in this appeal and the connected appeals we are satisfied that the courts below in the impugned order have gone far beyond their jurisdiction by giving findings as to the validity of shares acquired by the appellant. Before the Company Court this issue did not arise at all consequently, even before the Appellate Court this question did not arise. The question whether the transfer of shares by the MIL to the appellant was in contravention of the interim order of the injunction granted by the City Civil Court or not, is a matter to be decided by the City Civil Court in the pending proceedings before it and it could not have been decided in an alien proceedings before the Company Court. There was no statutory need to have decided this issue while dealing with the application for approval of the Scheme under Section 391 of the Companies Act, indeed, that issue did not arise before the Company Court. That apart basic principles of natural justice are violated by the courts below in deciding an issue against the appellant in proceedings to which the appellant was not even party. By this finding, the appellants right to hold shares in the MIL gets affected and even the question of violation of the terms of injunction on facts of this case, was not a matter before these forums. Therefore, we are of the considered opinion that the findings given by the Company Court as affirmed by the Appellate Court as to the violation of the injunction order also as to the validity of the transfer and the title of the appellant over the shares held by it in the MIL being findings which are made beyond the jurisdiction of the courts below, we have no hesitation in setting aside these findings. This issue as to the violation of injunction order or any other issue pertaining to the validity of title of the shares transferred in favour of the appellant by MIL is a matter if at all, to be decided by the City Civil Court in the pending suits if it arises for consideration. | 1[ds]8. Having heard the learned Counsel for the appellant in this appeal and the connected appeals we are satisfied that the courts below in the impugned order have gone far beyond their jurisdiction by giving findings as to the validity of shares acquired by the appellant. Before the Company Court this issue did not arise at all consequently, even before the Appellate Court this question did not arise. The question whether the transfer of shares by the MIL to the appellant was in contravention of the interim order of the injunction granted by the City Civil Court or not, is a matter to be decided by the City Civil Court in the pending proceedings before it and it could not have been decided in an alien proceedings before the Company Court. There was no statutory need to have decided this issue while dealing with the application for approval of the Scheme under Section 391 of the Companies Act, indeed, that issue did not arise before the Company Court. That apart basic principles of natural justice are violated by the courts below in deciding an issue against the appellant in proceedings to which the appellant was not even party. By this finding, the appellants right to hold shares in the MIL gets affected and even the question of violation of the terms of injunction on facts of this case, was not a matter before these forums. Therefore, we are of the considered opinion that the findings given by the Company Court as affirmed by the Appellate Court as to the violation of the injunction order also as to the validity of the transfer and the title of the appellant over the shares held by it in the MIL being findings which are made beyond the jurisdiction of the courts below, we have no hesitation in setting aside these findings. This issue as to the violation of injunction order or any other issue pertaining to the validity of title of the shares transferred in favour of the appellant by MIL is a matter if at all, to be decided by the City Civil Court in the pending suits if it arises for consideration. | 1 | 1,630 | 383 | ### 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:
shares in favour of the appellant was in breach of the injunction order of the City Civil Court.3. Against the said order, the 1st respondent herein and MIL filed original appeal (OJ No. 16 of 1994) and cross appeal before the Division Bench of the said High Court. Even in the said appeal the appellant was not made a party. The Appellate Bench dismissed the challenge of the 1st respondent for the grant of approval to the Amalgamation Scheme but confirmed the findings of the Trial Court that the allotment of the shares in favour of appellant by the MIL was in contravention of the injunction order. The approval of the scheme of amalgamation has since become final.4. In this appeal the appellant who is directly affected by the findings of the Learned Company Judge as well as the Appellate Court after obtaining permission to file S.L.P. and leave to appeal is challenging the said finding before us. 5. Learned Senior Counsel appearing for the appellant herein raised the following contentions for our consideration:- 1. In a Section 391-394 petition, the Company Court could have only decided the question as to grant of sanction or reject the Scheme of Amalgamation placed before it.2. The Company Court could not have gone into the question of title of individual shareholders in a proceedings under Sections 391-394.3. In any event, in the present case, as a Scheme was approved by well over 75% in value of the shareholders in the General Body Meeting even after excluding the Shareholding of the Appellant the issue of validity of allotment of shares to the Appellant did not arise. Hence, the Company Court could not have gone into the question of title of appellants share in MIL.4. Under the Companies Act a person could assail the allotment of shares only by a petition for rectification under Section 155 of the Companies Act as it stood at the relevant time and no such petition having been filed at that time, a challenge to the allotment of share in favour of the appellant had become time barred by December, 1990. Hence, it was not open to the Company Court to go into the validity of the issuance of the shares by the MIL in favour of the appellant. 6. At this stage, we must notice in spite of service of notice through publication in newspapers, the respondent has not chosen to appear and contest the case. We are also told that so far as the allegation of violation of the injunction granted by the City Civil Court is concerned, the same is being adjudicated in the said Court by initiating contempt proceedings by the concerned parties and it is still pending. 7. Learned Counsel for the appellant in this appeal apart from the above recorded arguments, contends that the appellant will be seriously affected by the findings recorded by the Company Court as well as by the Appellate Court in regard to the violation of the injunction order which in turn affects the title of the appellant over the shares held by it in MIL. He submitted that the appellant has not been made a party either to the suit, the Company Petition or in appeal and in spite of the same, adverse order has been passed affecting its right. He also contends that the Company Court had no jurisdiction whatsoever to have gone into the question of validity of the transaction between the appellant MIL in an Amalgamation Proceedings where the scope of enquiry is only to examine whether the statutorily required members of the Company have approved the Scheme or not. It was pointed out from the findings of the courts below that the Scheme has been approved by more than 75% of the members of the MIL even excluding the voting strength of the appellant. 8. Having heard the learned Counsel for the appellant in this appeal and the connected appeals we are satisfied that the courts below in the impugned order have gone far beyond their jurisdiction by giving findings as to the validity of shares acquired by the appellant. Before the Company Court this issue did not arise at all consequently, even before the Appellate Court this question did not arise. The question whether the transfer of shares by the MIL to the appellant was in contravention of the interim order of the injunction granted by the City Civil Court or not, is a matter to be decided by the City Civil Court in the pending proceedings before it and it could not have been decided in an alien proceedings before the Company Court. There was no statutory need to have decided this issue while dealing with the application for approval of the Scheme under Section 391 of the Companies Act, indeed, that issue did not arise before the Company Court. That apart basic principles of natural justice are violated by the courts below in deciding an issue against the appellant in proceedings to which the appellant was not even party. By this finding, the appellants right to hold shares in the MIL gets affected and even the question of violation of the terms of injunction on facts of this case, was not a matter before these forums. Therefore, we are of the considered opinion that the findings given by the Company Court as affirmed by the Appellate Court as to the violation of the injunction order also as to the validity of the transfer and the title of the appellant over the shares held by it in the MIL being findings which are made beyond the jurisdiction of the courts below, we have no hesitation in setting aside these findings. This issue as to the violation of injunction order or any other issue pertaining to the validity of title of the shares transferred in favour of the appellant by MIL is a matter if at all, to be decided by the City Civil Court in the pending suits if it arises for consideration.
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8. Having heard the learned Counsel for the appellant in this appeal and the connected appeals we are satisfied that the courts below in the impugned order have gone far beyond their jurisdiction by giving findings as to the validity of shares acquired by the appellant. Before the Company Court this issue did not arise at all consequently, even before the Appellate Court this question did not arise. The question whether the transfer of shares by the MIL to the appellant was in contravention of the interim order of the injunction granted by the City Civil Court or not, is a matter to be decided by the City Civil Court in the pending proceedings before it and it could not have been decided in an alien proceedings before the Company Court. There was no statutory need to have decided this issue while dealing with the application for approval of the Scheme under Section 391 of the Companies Act, indeed, that issue did not arise before the Company Court. That apart basic principles of natural justice are violated by the courts below in deciding an issue against the appellant in proceedings to which the appellant was not even party. By this finding, the appellants right to hold shares in the MIL gets affected and even the question of violation of the terms of injunction on facts of this case, was not a matter before these forums. Therefore, we are of the considered opinion that the findings given by the Company Court as affirmed by the Appellate Court as to the violation of the injunction order also as to the validity of the transfer and the title of the appellant over the shares held by it in the MIL being findings which are made beyond the jurisdiction of the courts below, we have no hesitation in setting aside these findings. This issue as to the violation of injunction order or any other issue pertaining to the validity of title of the shares transferred in favour of the appellant by MIL is a matter if at all, to be decided by the City Civil Court in the pending suits if it arises for consideration.
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The Check Post Officer & Ors Vs. K. P. Abdulla Bros | in charge of the check post or barrier, or the officer empowered as aforesaid, shall have power to seize and confiscate any goods which are under transport by any vehicle or boat and are not covered by, (i) a bill of sale or delivery note, (ii) a Goods Vehicle Record, a Trip Sheet or a Log Book as the case may be; and (iii) such other documents as may be prescribed under Sections 43 and 44; Provided that before ordering confiscation the officer shall give the person affected an opportunity of being heard and make an inquiry in the prescribed manner; Provided further that the officer ordering the confiscation shall give the person affected option to pay in lieu of confiscation - (a) in cases where the goods are taxable under this Act, in addition to the tax recoverable, a sum of money not exceeding one thousand rupees, or double the amount of tax recoverable, whichever is greater; and (b) in other cases, a Sum of money not exceeding one thousand rupees. By sub-section (2) the driver or any person in charge of the vehicle is required to stop the vehicle and to allow the officer in charge of the check post or barrier to examine the contents in the vehicle, and to inspect all records relating to the goods carried in the vehicle. The officer in charge of the check post or barrier is invested with power by sub-sec. (3) to seize and confiscate any goods which are carried and are not covered by the documents specified there in. The officer is required when orderings confiscation to give the person affected option to pay penalty in lieu of confiscation. 4. Entry 54 of List II of the Seventh Schedule to the Constitution authorises the State Legislature to legislate in respect of taxes on the sale or purchase of goods. A legislative entry does not merely enunciate powers: it specifies a field of legislation and the widest import and significance should be attached to it. Power to legislate on a specified topic includes power to legislate in respect of matters which may fairly and reasonably be said to be comprehended therein: see The United Provinces v. Mst. Atiqa Begum, 1940 FCR 110 = (AIR 1941 FC 16), Navinchandra Mafatlal v. The Commissioner of Income-tax, Bombay City, (1955) 1 SCR 829 = (AIR 1955 SC 58 ) and Balaji v. Income tax Officer, Special Investigation Circle, (1962) 2 SCR 983 = (AIR 1962 SC 123 ). A taxing entry therefore, confers power upon the Legislature to legislate for matters ancillary or incidental including provision for preventing evasion of tax.Sub-ss. (l) and (2) of S. 42 are intended to set up machinery for preventing evasion of sales tax. But, in our judgment the power to confiscate goods carried in a vehicle cannot be said to be fairly and reasonably comprehended in the power to legislate in respect of taxes on sale or purchase of goods. By sub-section (3) the officer in charge of the check post or barrier has the power to seize and confiscate any goods which are being carried in any vehicle if they are not covered by the documents specified in the three sub-clauses. Subsection (3) assumes that all goods carried in a vehicle near a check post are goods which have been sold within the State of Madras and in respect of which liability to pay sales tax has arisen, and authorises the check post officer, unless the specified documents are produced at the check post or the barrier, to seize and confiscate the goods and to give an option to the person affected to pay penalty in lieu of confiscation. A provision so enacted on the assumption that goods carried in a vehicle from one State to another must be presumed to be transported after sale within the State is unwarranted. In any event power conferred by sub-section (3) to seize and confiscate and to levy penalty in respect of all goods which are carried in a vehicle whether the goods are sold or not is not incidental or ancillary to the power to levy sales tax. A person carrying his own goods even as personal luggage from one State to another or for consumption, because he is unable to produce the documents specified in clauses (i), (ii) and (iii) of sub-section (3) of Section 42, stands in danger of having his goods forfeited. Power under sub-section (3) of Section 42 cannot be said to be ancillary or incidental to the power to legislate for levy of sales tax. 5. The High Court was of the view that the question which fell to be determined was concluded by the judgment of this Court in The Commissioner of Commercial Taxes v. R. S. Jhaver, (1968) 1 SCR 148 = (AIR 1968 SC 59 ). That case arose under Section 41 (2) of the Madras General Sales Tax Act 1 of 1959, and this Court struck down the power conferred under the Madras General Sales Tax Act, 1959, upon the officer of the Government to seize such accounts, registers, records or other documents of the dealer as he may consider necessary, if he had reason to suspect that any dealer has attempted to evade payment of any tax, fee or other amount. This Court held that tax and penalty cannot be levied before the first sale in the State, and on that account authority conferred to levy tax and penalty before the sale and to confiscate the goods for non-payment was outside the legislative competence of the State. That case may have no direct bearing in this case. 6. In the present case, however, the power to confiscate the goods and to levy penalty in lieu of confiscation, when in respect of the goods found in a vehicle the driver of the vehicle is not carrying with him the documents specified therein, is not a provision which is ancillary or incidental to the power to tax sale of goods. | 0[ds]5. The High Court was of the view that the question which fell to be determined was concluded by the judgment of this Court in The Commissioner of Commercial Taxes v. R. S. Jhaver, (1968) 1 SCR 148 = (AIR 1968 SC 59 ). That case arose under Section 41 (2) of the Madras General Sales Tax Act 1 of 1959, and this Court struck down the power conferred under the Madras General Sales Tax Act, 1959, upon the officer of the Government to seize such accounts, registers, records or other documents of the dealer as he may consider necessary, if he had reason to suspect that any dealer has attempted to evade payment of any tax, fee or other amount. This Court held that tax and penalty cannot be levied before the first sale in the State, and on that account authority conferred to levy tax and penalty before the sale and to confiscate the goods for non-payment was outside the legislative competence of the State. That case may have no direct bearing in this case6. In the present case, however, the power to confiscate the goods and to levy penalty in lieu of confiscation, when in respect of the goods found in a vehicle the driver of the vehicle is not carrying with him the documents specified therein, is not a provision which is ancillary or incidental to the power to tax sale of goods. | 0 | 1,670 | 266 | ### 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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in charge of the check post or barrier, or the officer empowered as aforesaid, shall have power to seize and confiscate any goods which are under transport by any vehicle or boat and are not covered by, (i) a bill of sale or delivery note, (ii) a Goods Vehicle Record, a Trip Sheet or a Log Book as the case may be; and (iii) such other documents as may be prescribed under Sections 43 and 44; Provided that before ordering confiscation the officer shall give the person affected an opportunity of being heard and make an inquiry in the prescribed manner; Provided further that the officer ordering the confiscation shall give the person affected option to pay in lieu of confiscation - (a) in cases where the goods are taxable under this Act, in addition to the tax recoverable, a sum of money not exceeding one thousand rupees, or double the amount of tax recoverable, whichever is greater; and (b) in other cases, a Sum of money not exceeding one thousand rupees. By sub-section (2) the driver or any person in charge of the vehicle is required to stop the vehicle and to allow the officer in charge of the check post or barrier to examine the contents in the vehicle, and to inspect all records relating to the goods carried in the vehicle. The officer in charge of the check post or barrier is invested with power by sub-sec. (3) to seize and confiscate any goods which are carried and are not covered by the documents specified there in. The officer is required when orderings confiscation to give the person affected option to pay penalty in lieu of confiscation. 4. Entry 54 of List II of the Seventh Schedule to the Constitution authorises the State Legislature to legislate in respect of taxes on the sale or purchase of goods. A legislative entry does not merely enunciate powers: it specifies a field of legislation and the widest import and significance should be attached to it. Power to legislate on a specified topic includes power to legislate in respect of matters which may fairly and reasonably be said to be comprehended therein: see The United Provinces v. Mst. Atiqa Begum, 1940 FCR 110 = (AIR 1941 FC 16), Navinchandra Mafatlal v. The Commissioner of Income-tax, Bombay City, (1955) 1 SCR 829 = (AIR 1955 SC 58 ) and Balaji v. Income tax Officer, Special Investigation Circle, (1962) 2 SCR 983 = (AIR 1962 SC 123 ). A taxing entry therefore, confers power upon the Legislature to legislate for matters ancillary or incidental including provision for preventing evasion of tax.Sub-ss. (l) and (2) of S. 42 are intended to set up machinery for preventing evasion of sales tax. But, in our judgment the power to confiscate goods carried in a vehicle cannot be said to be fairly and reasonably comprehended in the power to legislate in respect of taxes on sale or purchase of goods. By sub-section (3) the officer in charge of the check post or barrier has the power to seize and confiscate any goods which are being carried in any vehicle if they are not covered by the documents specified in the three sub-clauses. Subsection (3) assumes that all goods carried in a vehicle near a check post are goods which have been sold within the State of Madras and in respect of which liability to pay sales tax has arisen, and authorises the check post officer, unless the specified documents are produced at the check post or the barrier, to seize and confiscate the goods and to give an option to the person affected to pay penalty in lieu of confiscation. A provision so enacted on the assumption that goods carried in a vehicle from one State to another must be presumed to be transported after sale within the State is unwarranted. In any event power conferred by sub-section (3) to seize and confiscate and to levy penalty in respect of all goods which are carried in a vehicle whether the goods are sold or not is not incidental or ancillary to the power to levy sales tax. A person carrying his own goods even as personal luggage from one State to another or for consumption, because he is unable to produce the documents specified in clauses (i), (ii) and (iii) of sub-section (3) of Section 42, stands in danger of having his goods forfeited. Power under sub-section (3) of Section 42 cannot be said to be ancillary or incidental to the power to legislate for levy of sales tax. 5. The High Court was of the view that the question which fell to be determined was concluded by the judgment of this Court in The Commissioner of Commercial Taxes v. R. S. Jhaver, (1968) 1 SCR 148 = (AIR 1968 SC 59 ). That case arose under Section 41 (2) of the Madras General Sales Tax Act 1 of 1959, and this Court struck down the power conferred under the Madras General Sales Tax Act, 1959, upon the officer of the Government to seize such accounts, registers, records or other documents of the dealer as he may consider necessary, if he had reason to suspect that any dealer has attempted to evade payment of any tax, fee or other amount. This Court held that tax and penalty cannot be levied before the first sale in the State, and on that account authority conferred to levy tax and penalty before the sale and to confiscate the goods for non-payment was outside the legislative competence of the State. That case may have no direct bearing in this case. 6. In the present case, however, the power to confiscate the goods and to levy penalty in lieu of confiscation, when in respect of the goods found in a vehicle the driver of the vehicle is not carrying with him the documents specified therein, is not a provision which is ancillary or incidental to the power to tax sale of goods.
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5. The High Court was of the view that the question which fell to be determined was concluded by the judgment of this Court in The Commissioner of Commercial Taxes v. R. S. Jhaver, (1968) 1 SCR 148 = (AIR 1968 SC 59 ). That case arose under Section 41 (2) of the Madras General Sales Tax Act 1 of 1959, and this Court struck down the power conferred under the Madras General Sales Tax Act, 1959, upon the officer of the Government to seize such accounts, registers, records or other documents of the dealer as he may consider necessary, if he had reason to suspect that any dealer has attempted to evade payment of any tax, fee or other amount. This Court held that tax and penalty cannot be levied before the first sale in the State, and on that account authority conferred to levy tax and penalty before the sale and to confiscate the goods for non-payment was outside the legislative competence of the State. That case may have no direct bearing in this case6. In the present case, however, the power to confiscate the goods and to levy penalty in lieu of confiscation, when in respect of the goods found in a vehicle the driver of the vehicle is not carrying with him the documents specified therein, is not a provision which is ancillary or incidental to the power to tax sale of goods.
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Union of India Vs. Shri Harbhajan Singh Dhillon | or purpose of the Act, in so far as it does not plainly appear from its terms and its probable effect, is that of an incorporeal entity, namely, the Legislature and, generally speaking, the speeches of individuals would have little evidential weight".77. Although it is not necessary to decide the question whether the impugned Act falls within entry 86 List I read with entry 97 List I, or entry 97 List I alone, as some of our brethren are of the view that the original Wealth Tax Act fell under entry 86 List I, we might express our opinion on that point. It seems to us that there is a distinction between a true net wealth tax and a tax which can be levied under entry 86 List I. While legislating in respect of entry 86 List I it is not incumbent on Parliament to provide for deduction of debits in ascertaining the capital value of assets. Similarly, it is not incumbent on State Legislatures to provide for deduction of debits while legislating in respect of entry 49 List II. For example the State Legislature need not, while levying tax under entry 49 List II, provide for deduction of debits owed by the owner of the property. It seems to us that the other part of entry, i.e. "tax on the capital of companies." in entry 86 List I also seems to indicate that this entry is not strictly concerned with taxation of net wealth because capital of a company is in one sense a liability of the company and not its asset. Even if it is regarded as an asset, there is nothing in the entry to compel Parliament to provide for deduction of debits. It would also be noticed that entry 86. List I deals only with individuals and companies but net wealth tax can be levied not only on individuals but on other entities and associations also it is true that under entry 86 List I aggregation is necessary because it is a tax on the capital value of assets of an individual but it does not follow from this that Parliament is obliged to provide for deduction of debits in order to determine the capital value of assets of an individual or a company. Therefore, it seems to us that the whole of the impugned Act clearly falls within entry 97 List I. We may mention that this Court has never held that the original Wealth Tax Act fell under entry 86 List I. It was only assumed that the original Wealth Tax Act fell within entry 86 List I and on that assumption this entry was analysed and contrasted with entry 49 List II. Be that as it may, we are clearly of the opinion that no part of the impugned legislation falls within entry 86 List I.78. However, assuming that the Wealth Tax Act, as originally enacted, is held to be legislation under entry 86 List I, there is nothing in the Constitution to prevent Parliament from combining its powers under entry 86 List I with its powers under entry 97 List I. There is no principle that we know of which debars Parliament from relying on the powers under specified entries 1 to 96. List I and supplement them with the powers under entry 97 List I and Art 248, and for that matter powers under entries in the Concurrent List.79. In 1940 FCR 188 (203) = (AIR 1941 FC 47), Gwyer, C.J., while dealing with the validity of the Madras Agriculturists Relief Act 1938, observed:"That the provisions of the Act in their application to the decree obtained by the appellant were within the competence of the Madras Legislature to enact does not seem to me open to doubt. They may be justified by reference to entry no.4 and no.15 of List III, perhaps also to entry no. 2 in List II; I do not say that there may not be others, but these will suffice".80. In State of Bombay v. Narothamdas Jethabhai, 1951 SCR 51 = (AIR 1951 SC 69 ), Patanjali Sastri and Das, JJ., as they then were, relied on both items 1 and 2 of List II of the Government of India Act, 1935, to uphold the Bombay City Civil Court Act, 1948.81. It was contended that the case of residuary powers was different but we are unable to see any difference in principle. Residuary power is as much a power as the power conferred under Art. 246 of the Constitution in respect of a specified item.82. In in re the Regulation and Control of Aeronautics in Canada, 1932 AC 54 at p. 77 the Privy Council upheld the validity of a Parliamentary statute after supplementing the powers under the specified items in S.91 with the residuary powers. It observed:"To sum up, having regard (a) to the terms of S.132; (b) to the terms of the Convention which covers almost every conceivable matter relating to aerial navigation; and (c) to the fact that further legislative powers in relation to serial navigation reside in the Parliament of Canada by virtue of S.91, items 2, 5, and 7, it would appear that substantially the whole field of legislation in regard to aerial navigation belongs to the Dominion. There may be a small portion of the field which is not by virtue of specific words in the British North America Act vested in the Dominion; but neither is it vested by, specific words in the Provinces. As to that small portion it appears to the Board that it must necessarily belong to the Dominion under its power to make laws for the peace order and good government of Canada. Further their Lordships are influenced by the facts that the subject of aerial navigation and the fulfilment of Canadian obligations under S.132 are matters of national interest and importance; and that aerial navigation is a class of subject which has attained such dimensions as to affect the body politic of the Dominion."(emphasis supplied).83. | 1[ds]Art. 246 with the three lists in the Seventh Schedule, it is quite clear that Parliament has exclusive power to make laws with respect to all the matters enumerated in List I and this notwithstanding anything in clauses (2) and (3) of Art. 246. The State Legislatures have exclusive powers to make laws with respect to any of the matters enumerated in List II, but this is subject to clauses (1) and (2) of Article 246. The object of this subjection is to make Parliamentary legislation on matters in List I and III paramount. Under cl. (4) of Art. 246 Parliament is competent also to legislate on a matter enumerated in State List for any part of the territory of India not included in a State. Article 248 gives the residuary powers of legislation to the UnionArt. 250 Parliament can legislate with respect to any matter in the State list if a proclamation of emergency is in operation. Under Art. 253 Parliament has power to make any law for the whole or part of the territory of India for the purpose of implementing any international treaty, agreement or convention.14. This scheme of distribution of legislative power has been derived from the Government of India Act 1935, but in one respect there is a great deal of difference, and it seems to us that this makes the scheme different insofar as the present controversy is concerned. Under the Government of India Act, the residuary powers were not given either to the Central Legislature or to the Provincial Legislatures. The reason for this was given in the Report of the Joint Committee on Indian Constitutional Reform, volume I para 56. The reason was that there was profound cleavage of opinion existing in India with regard to allocation of residuary legislative powers. The result was the enactment of S.104 of the Government of IndiaThere does not seem to be any dispute that the Constitution makers wanted to give residuary powers of legislation to the Union Parliament. Indeed, this is obvious from Art. 248 and entry 97 List I. But there is a serious dispute about the extent of the residuary power.17. It will be noticed that all the matters and taxes which have been excluded, except taxes on the capital value of agricultural land under entry 86 List I fall specifically within one of the entries in List II. While taxes on agricultural income have been excluded from entry 82 List I, they form entry 46 List II, duties of excise excluded in entry 84 List I have been included in entry 51 List II; agricultural land exempt in entry 87 has been incorporated as entry 48 List II; and similarly, agricultural land exempted from the incidence of duties in respect of succession to property has been made the subject matter of duties in respect of succession in entry 47 List II.18. It seems to us that from this scheme of distribution it cannot be legitimately inferred that taxes on the capital value of agricultural land were designedly excluded from entry 97 List I. In this connection it is well to remember that the first draft of the 3 lists was attached to the report of the Union Powers Committee dated July 5, 1947 (see Vol. V Constituent Assembly Debates, page 60) List I then consisted of 87 entries and there was no residuary entry. It was on August, 1947 that Mr. N. Gopalaswami Ayyangar moved that this report be taken into consideration. At that stage it was evident that in the case of Indian States the residuary subjects were to stay with the Indian States unless they were willing to cede them to the Centre.It seems to us that the function of Article 246 (1) read with Entries 1-96, List I, is to give positive power to Parliament to legislate in respect of these entries. Object is not to debar Parliament from legislating on a matter, even if other provisions of the Constitution enable it to do so. Accordingly we do not interpret the words "any other matter" occurring in Entry 97, List I to mean a topic mentioned by way of exclusion. These words really refer to the matters contained in each of the Entries 1 to 96. The words "any other matter" has to be used because Entry 97, List I follows Entries 1-96, List I. It is true that the field of legislation is demarcated by Entries 1-96, List 1, but demarcation does not mean that if Entry 97 List I confers additional powers, we should refuse to give effect to it. At any rate, whatever doubt there may be on the interpretation of Entry 97, List I is removed by the wide terms of Article 248. It is framed in the widest possible terms. On its terms the only question to be asked is: Is the matter sought to be legislated included in List II or in List III or is the tax sought to be levied mentioned in List II or in List III : No question has to be asked about List I. If the answer is in negative then it follows that Parliament has power to make laws with respect to that matter or tax.21. It must be remembered that the function of the lists is not to confer powers; they merely demarcate the legislative field.We are compelled to give full effect to Article 248 because we know of no principle of construction by which we can cut down the wide words of a substantive article like Article 248 by the wording of an entry in Schedule VII. If the argument of the respondent is accepted, Article 248 would have to be re-drafted ashas exclusive power to make any law with respect to any matter not mentioned in the Concurrent List or State List, provided it has not been mentioned by way of exclusion in any entry in Listsimply have not the power to add a proviso like this to Article 248.24. We must also mention that no material has been placed before us to show that it was ever in the mind of anybody, who had to deal with the making of the Constitution, that it was the intention to prohibit all the legislatures in this country from legislating on a particular topic.We do not think it is legitimate manner of interpretation. The debates show that notwithstanding that certain taxes were known to the members of the Constituent Assembly they were not mentioned in the final list. Yet it can hardly be argued that they would not fall within the residuary powers.Two points emerge from this. The Constituent Assembly knew how to prohibit Parliament from levying a tax (See proposed Article 198-A set out above.) Secondly they knew of certain taxes as taxes on the use of consumption of goods. The proposal to include them in the Provincial List was not accepted. Indeed, Shri T.T. Krishnamachari said this about thisAssembly Debates Vol. 7 p. 232"Sir, one other recommendation of the Export Committee is I am afraid, rather mischievous. That is, they have suggested in regard to sales tax - which is Item 58 in List 2 - that the definition should be enlarged so as to include Use Tax as well, going undoubtedly on the experience of the American State Use Tax which, I think, is a pernicious recommendation. I think, it finds a reflection in the mention of Sales Tax in Item 58 which ought not to be there".If Parliament were to levy a Use Tax, it could hardly be thrown out on the ground that it cannot be included in the residuary powers because the tax was known at the time of the framing of the Constitution. Indeed it does not seem to be a sound principle of interpretation to adopt to first ascertain whether a tax was known to the framers of the Constitution and include it in the residuary powers only if it was not known. This would be an impossible test to apply. Is the Court to ask members of the Constituents Assembly to give evidence or is the Court to presume that they know of all the possible taxes which were being levied throughout the world? In our view the only safe guide for the interpretation of an article or articles of an organic instrument like our Constitution is the language employed, interpreted not narrowly but fairly in the light of the broad and high purposes of the Constitution but without doing violence to the language. To interpret Article 248 in the way suggested by the respondent would in our opinion be to do violence to the language.32. We are, however, glad to find from the following extracts from the debates that our interpretation accords with what wasHonourable Dr. B. R. Ambedkar (Constituent Assembly Debates, Vol.9 pagesPresident, I propose to deal with the objection raised by my friend Sardar Hukam Singh. I do not think he has realised what is the purpose of entry 91 and I should therefore like to state very clearly what the purpose of entry 91 in List I is. It is really to define a limit or scope of List I and I think we could have dealt with this matter, viz. of the definition of and scope of Lists II and III by adding an entry such as 67 which would read:"Anything not included in List II or III shall be deemed to fall in List I". That is really the purpose of it. It could have been served in two different ways, either having an entry such as the one 91 included in List I or to have an entry such as the one which I have suggested - that anything not included in List II or III shall fall in List I". That is the purpose of it. But such an entry is necessary and there can be no question about it. Now I come to the other objection which has been repeated if not openly at least whispered as to why we are having these 91 entries in List I when as a matter of fact we have an article such as 223 which is called residuary article which is Parliament has exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or State List. Theoretically I quite accept the proposition that when anything which isnot included in List II or ListIII is by a specific article of the Constitution handed over to the Entry it is unnecessary to enumerate these categories which we have specified in List I. The reason why this is done is this. Many States people, and particularly the Indian States at the beginning of the labours of the Constituent Assembly, were very particular to know what are the legislative powers of the Centre. They wanted to know categorically and particularly; they were not going to be satisfied by saying that the Centre will have only residuary powers. Just to allay the fears of the Provinces and the fears of the Indian States, we had to particularise what is included in the symbolic phrase "Residuary powers". That is the reason why we had to undergo this labour notwithstanding the fact that we had Article 223.I may also say that there is nothing very ridiculous about this, so far as our Constitution is concerned, for the simple reason that it has been the practice of all federal constitutions to enumerate the powers of the Centre, even those federations which have got residuary powers given to the Centre. Take for instance the Canadian Constitution. Like the Indian Constituion, the Canadian Constitution also gives what are called residuary powers to the Canadian Parliament. Certain specified and enumerated powers are given to the Provinces. Notwithstanding this fact the Canadian Constitution. I think in Article 99, proceeds to enumerate certain categories and certain entries on which the Parliament of Canada can legislate. That again was done in order to allay the fears of the French Provinces which were going to be part and parcel of the Canadian Federation. Similarly also in the Government of India Act; the same scheme has been laid down there and Section 104 of the Government of India Act, 1935 is similar to Article 223 here. It also lays down the proposition that the Central Government will have residuary powers. Notwithstanding that, it had its List I. Therefore there is no reason, no ground to be over-critical about this matter. In doing this we have only followed as I said, the requirements of the various Provinces to know specifically what these residuary powers are, and also we have followed well-known conventions which have been followed in any other federal constitutions. I hope the House will not accept either the amendment of my Friend Sardar Hukam Singh nor take very seriously the utterings of my Friend Mr. Naziruddin Ahmad".It seems to us that this discussion clearly shows that it was realised that the old entry 91 would cover every matter which is not included in Lists II and III, and that entries were enumerated in List I following the precedent of the Canadian Constitution and also to inform the provinces and particularly the Indian States as to the legislative powers the Union was going toT.T. Krishnamachari (Constituent Assembly Debates, Vol.11,would in this connection deal with a point raised regarding the vesting of the residuary powers. I think more than one honourable Member mentioned that the fact that the residuary power is vested in the Centre in our Constitution, makes it a unitary Constitution. It was, I think, further emphasised by my honourable Friend Mr. Gupta in the course of his speech. He said: "The test is there. The residuary power is vested in the Centre. I am taking my Friend Mr. Gupta quite seriously, because he appears to be a careful student who has called out this particular point from some text book on federalism. I would like to tell honourable Members that it is not a very important matter in assessing whether a particular Constitution is based on a federal system from the point of view whether the residuary power is vested in the States or in the Central Government. Mr. K. C. Wheare who has written recently a book on Federalism has dealt with thisif you ask me why we have really kept the residuary power with the Centre and whether it means anything at all, I will say that it is because we have gone to much absolute length to enumerate the powers of the Centre and of the States and also the powers that are to be exercised by both of them in the concurrent field. In fact, to quote Professor Wheare again, who has made a superficial survey of the Government of India Act, the best point in the Government of India Act is the complete and exhaustive enumeration of powers of Schedule VII.To my mind there seems to be the possibility of one power that has not been enumerated, which might be exercised in the future by means of the use of the residuary power, namely the capital levy on agricultural land. This power has not been assigned either to the Centre or to the Units. It may be that following the scheme of Estate Duty and succession duty on urban and agricultural property, even if the Centre has to take over this power under the residuary power after some time. It would assign the proceeds of this levy to the provinces, because all things that are supposed to be associated with agriculture are assigned to the provinces.(emphasis supplied) I think the vesting of the residuary power is only a matter of academic significance today. To say that because residuary power is vested in the Centre and not in the provinces this is not a Federation would not be correct".The above speech of Mr. T. T. Krishnamachari shows that the members were aware that certain known taxes had not been included specifically in the three lists.38. It is, therefore, difficult to escape from the conclusion that in India there is no field of legislation which has not been allotted either to Parliament or to the Stateis true that there are some limitations in Part III of the Constitution on the legislatures in India but they are of a different character. They have nothing to do with legislative competence. If this is the true scope of residuary powers of Parliament, then we are unable to see why we should not, when dealing with a Central Act, enquire whether it is legislation in respect of any matter in List II for this is the only field regarding which there is a prohibition against Parliament. If a Central Act does not enter or invade these prohibited fields there is no point in trying to decide as to under which entry or entries of List I or List III a Central Act would rightly fit in.40. It was accepted that this test had been applied in Canada, but it was argued that the Canadian Constitution is completely different from the Indian Constitution. It is true that the wording of Ss. 91 and 92 of the Canadian Constitution is different and the Judicial Committee has interpreted these sections differently at different periods, but whatever the interpretation, it has always held that the lists are exhaustive. The scheme of distribution of Legislative powers between the Dominion and the Provinces is essentially the same as under our Constitution. In this matter it is best to quote the words of the Judicial Committee or some learned authors rather than interpret Ss. 91 and 92 ourselves.It is quite true, as Mr. Palkiwala points out, that one way of reading Ss. 91 and 92 of the Canadian Constitution is that S.91 gives general powers and then gives certain specific powers by way of illustration, and that apparently was the interpretation placed on the Act by the Privy Council before 1896 AC 348. But whatever the interpretation, the same test was applied by the Privy Council before 1896 in Russel v. The Queen, (1882) 7 AC 829 and after this case.48. The learned counsel referred to five cases of this court and the Federal Court to show that the Canadian cases should not be relied on as the Canadian Constitution was different. It is true that the Canadian Constitution is different in many respects and for some purposes it would be misleading to rely on the Canadian cases. In Chhotabhai Jethabhai Patel v. Union of India, (1962) Supp 2 SCR 1 = (AIR 1962 SC 1006 ) the question was the interpretation of Entry 84 List I (Duties of excise on tobacco....) and entry 60 List II (Taxes on professions, trades, calling and employments). This Court held that the Canadian cases which were cited before it did not afford any assistance because in Canada analogous problems are always concerned with questions of direct and indirect taxation. We agree that in the interpretation of entry 84 (duties of excise...) it would be misleading to rely on cases dealing with direct and indirect taxation.Be that as it may, we are unable to see how the adoption of this mode of enquiry will destroy the federal structure of our Constitution. The State Legislatures have full legislative authority to pass laws in respect of entries in List II, and subject to legislation by Parliament on matters in List III.59. It was also said that if this was the intention of the Constitution makers they need not have formulated List I at all. This is the point which was taken by Sardar Hukam Singh and others in the debates referred to above and was answered by Dr. Ambedkar. But apart from what has been stated by Dr. Ambedkar in his speech extracted above there is some merit and legal effect in having included specific items in List I for when there are three lists it is easier to construe List II in the light of Lists I and II. If there had been no List I, many items in List II would perhaps have been given much wider interpretation than can be given under the present scheme. Be that as it may, we have the three lists and a residuary power and therefore it seems to us that in this context; if a Central Act is, challenged, as being beyond the legislative competence of Parliament, it is enough to enquire if it is a law with respect to matters or taxes enumerated in List II. If it is not, no further questionthis matter we have three decisions of this Court and although these decisions were challenged we are of the opinion that they interpreted Entry 49 List II correctly.The requisites of a tax under entry 49, List II may be summarisedIt must be a tax on units, that is lands and buildings separately as units.(2) The tax cannot be a tax on totality, i.e. it is not a composite tax on the value of all lands and buildings.(3) The tax is not concerned with the division of interest in the building or land. In other words, it is not concerned whether one person owns or occupies it or two or more persons own or occupy it.In short, the tax under entry 49 List II is not a personal tax but a tax on property.67. It seems to us that this Court definitely held and we agree with the conclusion that the nature of the Wealth Tax imposed under the Wealth Tax Act, as originally stood, was different from that of a tax under entry 49, List II, and it did not fall under this entry.68. The distinction between a net wealth tax and tax on property is clearly brought out in the following extracts, and supports the conclusion arrived at by this Court.69. Readings on Taxation in Developing Countries by Fird and Oldman elucidates the concept of Wealth Tax as follows, at pageterm net wealth tax is usually defined as a tax annually imposed on the net value of all assets less liabilities of particular tax-payers - especially individuals. This definition distinguishes the net wealth tax from other types of taxation of net wealth, such as death duties and a capital levy; the former are imposed only at infrequent intervals - once a generation - while the latter is a one-time charge, usually with the primary purpose of redeeming a war-time national debt. The net wealth tax is really intended to tax the annual yields of capital rather than the principal itself as do death duties or a capital levy, even though it is levied on the value of the principal. Since it taxes net wealth, it also differs from property taxes imposed on the gross value of property - primarily real property - in a number of countries. The net wealth tax gives consideration to the taxpayers taxable capacity through the deduction of all outstanding liabilities and personal exemptions as well as through other devices, while the property tax generally does not take these factors into account. The net wealth tax is therefore deemed to be imposed on the person of the taxpayer, while the property tax often deemed to be imposed on an object - the property itself".In Harvard Law School World Tax Series - Taxation in Columbia - Net Wealth Tax is defined at page 451a general rule, all debts owed by taxpayers whether to residents or to non-residents, are deductible if their existence is established in conformity with the legal requirements. The usual test of deductibility, as applied by the Division of National Taxes, is whether or not there is an actual, enforceable legal obligation, the amount of which is fixed or computable as on 31 December of the tax year".According to Harvard Law School World Tax Series - Taxation in Sweden - this tax has been levied in Sweden since a long time. Now it is regulated by law enacted in 1947, "Taxable Wealth" has been defined at page 625 aswealth consists of the capital value of the taxpayers assets, as those are defined in the law, to the extent that this value exceeds the capital value of his debts.In Harvard Law School World Tax Series - Taxation in the Federal Republic of Germany - it is stated at page 152 that "the taxes on capital which are summarised in this chapter are the net worth tax, the real property tax, and the capital levy under the Equalization of Burdens Law". It is further statedof the taxes on capital are deemed to be imposed on the person of the taxpayers while other are deemed to be imposed on an object. Examples of the former are the net worth tax and the capital levy under the Equalization of Burdens Law, while the real property tax and the trade tax on business capital are classified in the latter category. The main importance of this distinction is that taxes in the first group presuppose a taxpayer with independent legal existence, that is, an individual or a legal entity (juridical person), while in the case of taxes in the second group, the taxable object itself is deemed liable for the tax, in addition to its owner, so that the taxpayer can be a partnership association of the civil law, or other combination of persons without separate legal existence. Taxes of the first type give consideration to the taxpayers ability to pay, while those of the second type consider merely the value of the taxable object, such as the capital of a business, in the case of the trade tax on business capital, or the assessed value of real property, in the case of the real property tax".In our view the High Court was right in holding that the impugned Act was not a law with respect to entry 49 List II, or did not impose a tax mentioned in entry 49, List II. If that is so, then the legislation is valid either under entry 86, List I, read with entry 97, List I or entry 97 List I standing by itself.74. Although we have held that the impugned Act does not impose a tax mentioned in entry 49 List II, we would like to caution that in case the real effect of a Central Act, whether called a Wealth Tax Act or not, is to impose a tax mentioned in entry 49 List II the tax may be held as encroaching upon the domain of State legislatures.Although it is not necessary to decide the question whether the impugned Act falls within entry 86 List I read with entry 97 List I, or entry 97 List I alone, as some of our brethren are of the view that the original Wealth Tax Act fell under entry 86 List I, we might express our opinion on that point. It seems to us that there is a distinction between a true net wealth tax and a tax which can be levied under entry 86 List I. While legislating in respect of entry 86 List I it is not incumbent on Parliament to provide for deduction of debits in ascertaining the capital value of assets. Similarly, it is not incumbent on State Legislatures to provide for deduction of debits while legislating in respect of entry 49 List II. For example the State Legislature need not, while levying tax under entry 49 List II, provide for deduction of debits owed by the owner of the property. It seems to us that the other part of entry, i.e. "tax on the capital of companies." in entry 86 List I also seems to indicate that this entry is not strictly concerned with taxation of net wealth because capital of a company is in one sense a liability of the company and not its asset. Even if it is regarded as an asset, there is nothing in the entry to compel Parliament to provide for deduction of debits. It would also be noticed that entry 86. List I deals only with individuals and companies but net wealth tax can be levied not only on individuals but on other entities and associations also it is true that under entry 86 List I aggregation is necessary because it is a tax on the capital value of assets of an individual but it does not follow from this that Parliament is obliged to provide for deduction of debits in order to determine the capital value of assets of an individual or a company. Therefore, it seems to us that the whole of the impugned Act clearly falls within entry 97 List I. We may mention that this Court has never held that the original Wealth Tax Act fell under entry 86 List I. It was only assumed that the original Wealth Tax Act fell within entry 86 List I and on that assumption this entry was analysed and contrasted with entry 49 List II. Be that as it may, we are clearly of the opinion that no part of the impugned legislation falls within entry 86 List I.78. However, assuming that the Wealth Tax Act, as originally enacted, is held to be legislation under entry 86 List I, there is nothing in the Constitution to prevent Parliament from combining its powers under entry 86 List I with its powers under entry 97 List I. There is no principle that we know of which debars Parliament from relying on the powers under specified entries 1 to 96. List I and supplement them with the powers under entry 97 List I and Art 248, and for that matter powers under entries in the Concurrent List.It was contended that the case of residuary powers was different but we are unable to see any difference in principle. Residuary power is as much a power as the power conferred under Art. 246 of the Constitution in respect of a specified item.82. In in re the Regulation and Control of Aeronautics in Canada, 1932 AC 54 at p. 77 the Privy Council upheld the validity of a Parliamentary statute after supplementing the powers under the specified items in S.91 with the residuary powers. Itsum up, having regard (a) to the terms of S.132; (b) to the terms of the Convention which covers almost every conceivable matter relating to aerial navigation; and (c) to the fact that further legislative powers in relation to serial navigation reside in the Parliament of Canada by virtue of S.91, items 2, 5, and 7, it would appear that substantially the whole field of legislation in regard to aerial navigation belongs to the Dominion. There may be a small portion of the field which is not by virtue of specific words in the British North America Act vested in the Dominion; but neither is it vested by, specific words in the Provinces. As to that small portion it appears to the Board that it must necessarily belong to the Dominion under its power to make laws for the peace order and good government of Canada. Further their Lordships are influenced by the facts that the subject of aerial navigation and the fulfilment of Canadian obligations under S.132 are matters of national interest and importance; and that aerial navigation is a class of subject which has attained such dimensions as to affect the body politic of the Dominion.It is, therefore, difficult to escape from the conclusion that in India there is no field of legislation which has not been allotted either to Parliament or to the Statelegislatures. In Attorney-General for Ontario v. Attorney-General for Canada, 1947 AC 127 at p.150 Lord Jowitt, L.C., recalled the following words of Lord Loreburn, L.C., in Attorney-General for Ontario v. Attorney-General for Canada, 1912 AC 571 at p.581 and reiteratedthere can be no doubt that under this organic instrument the powers distributed between the Dominion on the one hand, and the provinces on the other hand, cover the whole area of self-government within the whole area of Canada. It would be subversive of the entire scheme and policy of the Act to assume that any point of internal self-Government was withheld from Canada".The last sentence applies much more to the Constitution of a sovereign democratic republic. Itis true that there are some limitations in Part III of the Constitution on the legislatures in India but they are of a different character. They have nothing to do with legislative competence. If this is the true scope of residuary powers of Parliament, then we are unable to see why we should not, when dealing with a Central Act, enquire whether it is legislation in respect of any matter in List II for this is the only field regarding which there is a prohibition against Parliament. If a Central Act does not enter or invade these prohibited fields there is no point in trying to decide as to under which entry or entries of List I or List III a Central Act would rightly fit in.40. It was accepted that this test had been applied in Canada, but it was argued that the Canadian Constitution is completely different from the Indian Constitution. It is true that the wording of Ss. 91 and 92 of the Canadian Constitution is different and the Judicial Committee has interpreted these sections differently at different periods, but whatever the interpretation, it has always held that the lists are exhaustive. The scheme of distribution of Legislative powers between the Dominion and the Provinces is essentially the same as under our Constitution. | 1 | 15,101 | 6,048 | ### Instruction:
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or purpose of the Act, in so far as it does not plainly appear from its terms and its probable effect, is that of an incorporeal entity, namely, the Legislature and, generally speaking, the speeches of individuals would have little evidential weight".77. Although it is not necessary to decide the question whether the impugned Act falls within entry 86 List I read with entry 97 List I, or entry 97 List I alone, as some of our brethren are of the view that the original Wealth Tax Act fell under entry 86 List I, we might express our opinion on that point. It seems to us that there is a distinction between a true net wealth tax and a tax which can be levied under entry 86 List I. While legislating in respect of entry 86 List I it is not incumbent on Parliament to provide for deduction of debits in ascertaining the capital value of assets. Similarly, it is not incumbent on State Legislatures to provide for deduction of debits while legislating in respect of entry 49 List II. For example the State Legislature need not, while levying tax under entry 49 List II, provide for deduction of debits owed by the owner of the property. It seems to us that the other part of entry, i.e. "tax on the capital of companies." in entry 86 List I also seems to indicate that this entry is not strictly concerned with taxation of net wealth because capital of a company is in one sense a liability of the company and not its asset. Even if it is regarded as an asset, there is nothing in the entry to compel Parliament to provide for deduction of debits. It would also be noticed that entry 86. List I deals only with individuals and companies but net wealth tax can be levied not only on individuals but on other entities and associations also it is true that under entry 86 List I aggregation is necessary because it is a tax on the capital value of assets of an individual but it does not follow from this that Parliament is obliged to provide for deduction of debits in order to determine the capital value of assets of an individual or a company. Therefore, it seems to us that the whole of the impugned Act clearly falls within entry 97 List I. We may mention that this Court has never held that the original Wealth Tax Act fell under entry 86 List I. It was only assumed that the original Wealth Tax Act fell within entry 86 List I and on that assumption this entry was analysed and contrasted with entry 49 List II. Be that as it may, we are clearly of the opinion that no part of the impugned legislation falls within entry 86 List I.78. However, assuming that the Wealth Tax Act, as originally enacted, is held to be legislation under entry 86 List I, there is nothing in the Constitution to prevent Parliament from combining its powers under entry 86 List I with its powers under entry 97 List I. There is no principle that we know of which debars Parliament from relying on the powers under specified entries 1 to 96. List I and supplement them with the powers under entry 97 List I and Art 248, and for that matter powers under entries in the Concurrent List.79. In 1940 FCR 188 (203) = (AIR 1941 FC 47), Gwyer, C.J., while dealing with the validity of the Madras Agriculturists Relief Act 1938, observed:"That the provisions of the Act in their application to the decree obtained by the appellant were within the competence of the Madras Legislature to enact does not seem to me open to doubt. They may be justified by reference to entry no.4 and no.15 of List III, perhaps also to entry no. 2 in List II; I do not say that there may not be others, but these will suffice".80. In State of Bombay v. Narothamdas Jethabhai, 1951 SCR 51 = (AIR 1951 SC 69 ), Patanjali Sastri and Das, JJ., as they then were, relied on both items 1 and 2 of List II of the Government of India Act, 1935, to uphold the Bombay City Civil Court Act, 1948.81. It was contended that the case of residuary powers was different but we are unable to see any difference in principle. Residuary power is as much a power as the power conferred under Art. 246 of the Constitution in respect of a specified item.82. In in re the Regulation and Control of Aeronautics in Canada, 1932 AC 54 at p. 77 the Privy Council upheld the validity of a Parliamentary statute after supplementing the powers under the specified items in S.91 with the residuary powers. It observed:"To sum up, having regard (a) to the terms of S.132; (b) to the terms of the Convention which covers almost every conceivable matter relating to aerial navigation; and (c) to the fact that further legislative powers in relation to serial navigation reside in the Parliament of Canada by virtue of S.91, items 2, 5, and 7, it would appear that substantially the whole field of legislation in regard to aerial navigation belongs to the Dominion. There may be a small portion of the field which is not by virtue of specific words in the British North America Act vested in the Dominion; but neither is it vested by, specific words in the Provinces. As to that small portion it appears to the Board that it must necessarily belong to the Dominion under its power to make laws for the peace order and good government of Canada. Further their Lordships are influenced by the facts that the subject of aerial navigation and the fulfilment of Canadian obligations under S.132 are matters of national interest and importance; and that aerial navigation is a class of subject which has attained such dimensions as to affect the body politic of the Dominion."(emphasis supplied).83.
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entry, i.e. "tax on the capital of companies." in entry 86 List I also seems to indicate that this entry is not strictly concerned with taxation of net wealth because capital of a company is in one sense a liability of the company and not its asset. Even if it is regarded as an asset, there is nothing in the entry to compel Parliament to provide for deduction of debits. It would also be noticed that entry 86. List I deals only with individuals and companies but net wealth tax can be levied not only on individuals but on other entities and associations also it is true that under entry 86 List I aggregation is necessary because it is a tax on the capital value of assets of an individual but it does not follow from this that Parliament is obliged to provide for deduction of debits in order to determine the capital value of assets of an individual or a company. Therefore, it seems to us that the whole of the impugned Act clearly falls within entry 97 List I. We may mention that this Court has never held that the original Wealth Tax Act fell under entry 86 List I. It was only assumed that the original Wealth Tax Act fell within entry 86 List I and on that assumption this entry was analysed and contrasted with entry 49 List II. Be that as it may, we are clearly of the opinion that no part of the impugned legislation falls within entry 86 List I.78. However, assuming that the Wealth Tax Act, as originally enacted, is held to be legislation under entry 86 List I, there is nothing in the Constitution to prevent Parliament from combining its powers under entry 86 List I with its powers under entry 97 List I. There is no principle that we know of which debars Parliament from relying on the powers under specified entries 1 to 96. List I and supplement them with the powers under entry 97 List I and Art 248, and for that matter powers under entries in the Concurrent List.It was contended that the case of residuary powers was different but we are unable to see any difference in principle. Residuary power is as much a power as the power conferred under Art. 246 of the Constitution in respect of a specified item.82. In in re the Regulation and Control of Aeronautics in Canada, 1932 AC 54 at p. 77 the Privy Council upheld the validity of a Parliamentary statute after supplementing the powers under the specified items in S.91 with the residuary powers. Itsum up, having regard (a) to the terms of S.132; (b) to the terms of the Convention which covers almost every conceivable matter relating to aerial navigation; and (c) to the fact that further legislative powers in relation to serial navigation reside in the Parliament of Canada by virtue of S.91, items 2, 5, and 7, it would appear that substantially the whole field of legislation in regard to aerial navigation belongs to the Dominion. There may be a small portion of the field which is not by virtue of specific words in the British North America Act vested in the Dominion; but neither is it vested by, specific words in the Provinces. As to that small portion it appears to the Board that it must necessarily belong to the Dominion under its power to make laws for the peace order and good government of Canada. Further their Lordships are influenced by the facts that the subject of aerial navigation and the fulfilment of Canadian obligations under S.132 are matters of national interest and importance; and that aerial navigation is a class of subject which has attained such dimensions as to affect the body politic of the Dominion.It is, therefore, difficult to escape from the conclusion that in India there is no field of legislation which has not been allotted either to Parliament or to the Statelegislatures. In Attorney-General for Ontario v. Attorney-General for Canada, 1947 AC 127 at p.150 Lord Jowitt, L.C., recalled the following words of Lord Loreburn, L.C., in Attorney-General for Ontario v. Attorney-General for Canada, 1912 AC 571 at p.581 and reiteratedthere can be no doubt that under this organic instrument the powers distributed between the Dominion on the one hand, and the provinces on the other hand, cover the whole area of self-government within the whole area of Canada. It would be subversive of the entire scheme and policy of the Act to assume that any point of internal self-Government was withheld from Canada".The last sentence applies much more to the Constitution of a sovereign democratic republic. Itis true that there are some limitations in Part III of the Constitution on the legislatures in India but they are of a different character. They have nothing to do with legislative competence. If this is the true scope of residuary powers of Parliament, then we are unable to see why we should not, when dealing with a Central Act, enquire whether it is legislation in respect of any matter in List II for this is the only field regarding which there is a prohibition against Parliament. If a Central Act does not enter or invade these prohibited fields there is no point in trying to decide as to under which entry or entries of List I or List III a Central Act would rightly fit in.40. It was accepted that this test had been applied in Canada, but it was argued that the Canadian Constitution is completely different from the Indian Constitution. It is true that the wording of Ss. 91 and 92 of the Canadian Constitution is different and the Judicial Committee has interpreted these sections differently at different periods, but whatever the interpretation, it has always held that the lists are exhaustive. The scheme of distribution of Legislative powers between the Dominion and the Provinces is essentially the same as under our Constitution.
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AIR COMMODORE NAVEEN JAIN Vs. UNION OF INDIA | illegal and unsustainable. 22. The promotion has to be affected in terms of statutory rules and in absence thereof, as per the executive instructions. The policy provides equal opportunities to the officers falling within the zone of consideration and subsequent promotion. Such policy is not discriminatory in terms of Article 14 or denies lack of equal opportunity in terms of Article 16. The promotion to the post of Air Vice Marshal is governed by the policy of Air Force which is applicable to all officers falling in the zone of consideration. Therefore, the Promotion Policy cannot be said to be illegal, arbitrary and irrational warranting interference in exercise of power of judicial review. 23. Apart from the policy, we also find that the appellant is estopped to challenge the policy after participating in the selection process on the basis of such policy. It has been so held by this Court in Madan Lal & Ors. v. State of J & K & Ors. (1995) 3 SCC 486 :?10. Therefore, the result of the interview test on merits cannot be successfully challenged by a candidate who takes a chance to get selected at the said interview and who ultimately finds himself to be unsuccessful. It is also to be kept in view that in this petition we cannot sit as a court of appeal and try to reassess the relative merits of the candidates concerned who had been assessed at the oral interview nor can the petitioners successfully urge before us that they were given less marks though their performance was better. It is for the Interview Committee which amongst others consisted of a sitting High Court Judge to judge the relative merits of the candidates who were orally interviewed, in the light of the guidelines laid down by the relevant rules governing such interviews. Therefore, the assessment on merits as made by such an expert committee cannot be brought in challenge only on the ground that the assessment was not proper or justified as that would be the function of an appellate body and we are certainly not acting as a court of appeal over the assessment made by such an expert committee.?24. In a judgment reported as Ashok Kumar v. State of Bihar (2017) 4 SCC 357(2017) 4 SCC 357 , a three Judge Bench held that the appellants were estopped from turning around and challenging the selection once they were declared unsuccessful. The Court held as under:-"17. In Ramesh Chandra Shah v. Anil Joshi [Ramesh Chandra Shah v. Anil Joshi, (2013) 11 SCC 309 : (2011) 3 SCC (L&S) 129] , candidates who were competing for the post of Physiotherapist in the State of Uttarakhand participated in a written examination held in pursuance of an advertisement. This Court held that if they had cleared the test, the respondents would not have raised any objection to the selection process or to the method- ology adopted. Having taken a chance of selection, it was held that the respondents were disentitled to seek relief under Article 226 and would be deemed to have waived their right to challenge the advertisement or the procedure of selection. This Court held that: (SCC p. 318, para 18) ?18. It is settled law that a person who consciously takes part in the process of selection cannot, thereafter, turn around and question the method of selection and its outcome.? 18. In Chandigarh Admn. v. Jasmine Kaur [Chandigarh Admn. v. Jasmine Kaur, (2014) 10 SCC 521 : 6 SCEC 745] , it was held that a candidate who takes a calculated risk or chance by subjecting himself or herself to the selection process cannot turn around and complain that the process of selection was unfair after knowing of his or her non-selection. In Pradeep Kumar Rai v. Dinesh Kumar Pandey [Pradeep Kumar Rai v. Dinesh Kumar Pandey, (2015) 11 SCC 493 : (2015) 3 SCC (L&S) 274], this Court held that: (SCC p. 500, para 17) ?17. Moreover, we would concur with the Division Bench on one more point that the appellants had participated in the process of interview and not challenged it till the results were declared. There was a gap of almost four months between the interview and declaration of result. However, the appellants did not challenge it at that time. This, it appears that only when the appellants found themselves to be unsuccessful, they challenged the interview. This cannot be allowed. The candidates cannot approbate and reprobate at the same time. Either the candidates should not have participated in the interview and challenged the procedure or they should have challenged immediately after the interviews were conducted.? This principle has been reiterated in a recent judgment in Madras Institute of Development Studies v. K. Sivasubramaniyan [Madras Institute of Development Studies v. K. Sivasubramaniyan, (2016) 1 SCC 454 : (2016) 1 SCC (L&S) 164 : 7 SCEC 462] . 19. In the present case, regard must be had to the fact that the appellants were clearly on notice, when the fresh selection process took place that written examination would carry ninety marks and the interview, ten marks. The appellants participated in the selection process. Moreover, two other considerations weigh in balance. The High Court noted in the impugned judgment [Anurag Verma v. State of Bihar, 2011 SCC OnLine Pat 1289.] that the interpretation of Rule 6 was not free from vagueness. There was, in other words, no glaring or patent illegality in the process adopted by the High Court. There was an element of vagueness about whether Rule 6 which dealt with promotion merely incorporated the requirement of an examination provided in Rule 5 for direct recruitment to Class III posts or whether the marks and qualifying marks were also incorporated. Moreover, no prejudice was established to have been caused to the appellants by the 90:10 allocation.?25. In view thereof, we do not find that the policy circulated on February 20, 2008 suffers from any illegality which was rightly not interfered with by the learned Tribunal. | 0[ds]10. The Policy dated February 20, 2008 does not use the expression that the promotion is based either on the principle of ?merit-cum- seniority? or ?seniority-cum-merit?.In view of the principles governing the right of promotion as delineated above, we find that the grievance of the appellant is in respect of lost chances of promotion inasmuch as he attained the age of superannuation before the vacancy arose. Clauses 17 and 22 are categorical that the select list of officers will be prepared from merit list and rearranged in order of seniority. Thus, the final list of the candidates falling within the zone of consideration in terms of clause 11 and who are eligible in terms of clause 13 is determined first by preparing the merit list on the basis of AR marks and Board marks. Thereafter, the names of the officers found meritorious are to be rearranged in order of seniority as per clauses 17 and 22 of the Promotion Policy. Thus, it ensures that the candidates falling within the zone of consideration are short listed for promotion but ultimate promotion from amongst the selected candidates is on the basis of seniority. Such policy per se cannot be said to be illegal, arbitrary and discriminatory so as to attract the violation of either Article 14 or Article 16 of the Constitution.In Major General Manoj Luthra, the Promotion Policy has not been struck down by this Court but in the facts of that case, in view of superannuation of the officer, the benefit was ordered to be conferred to the respondent. Such is not a binding precedent as the merit of the policy has not been examined.The promotion to the post of Air Vice Marshal is regulated by Circular dated February 20, 2008, therefore, the promotion can be claimed only in terms of eligibility and the norms fixed therein. Mere fact that the appellant could not be promoted on account of non-availability of vacancies before his superannuation is not a ground on which the Promotion Policy can be struck down. The Promotion Policy can be struck down only if the policy has no reasonable nexus with the objective to be achieved and is discriminatory. The lack of vacancy is not a ground on the basis of which promotion policy can be struck down. Since the Promotion Policy is in two stages as in Rajendra Kumar Srivastava i.e. to shortlist the candidates on the basis of eligibility criteria and on the basis of the marks obtained in the Annual Confidential Report and the marks given by the Board, therefore, the applicability of principle of seniority cannot be said to be arbitrary or irrational which may make the policy illegal and unsustainable.The promotion has to be affected in terms of statutory rules and in absence thereof, as per the executive instructions. The policy provides equal opportunities to the officers falling within the zone of consideration and subsequent promotion. Such policy is not discriminatory in terms of Article 14 or denies lack of equal opportunity in terms of Article 16. The promotion to the post of Air Vice Marshal is governed by the policy of Air Force which is applicable to all officers falling in the zone of consideration. Therefore, the Promotion Policy cannot be said to be illegal, arbitrary and irrational warranting interference in exercise of power of judicial review.Apart from the policy, we also find that the appellant is estopped to challenge the policy after participating in the selection process on the basis of such policy.In view thereof, we do not find that the policy circulated on February 20, 2008 suffers from any illegality which was rightly not interfered with by the learnedthe entire policy is required to be examined as to what is the criteria for promotion rather than using the expression either ?merit-cum-seniority? or ?seniority-cum-merit?. | 0 | 6,254 | 687 | ### Instruction:
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illegal and unsustainable. 22. The promotion has to be affected in terms of statutory rules and in absence thereof, as per the executive instructions. The policy provides equal opportunities to the officers falling within the zone of consideration and subsequent promotion. Such policy is not discriminatory in terms of Article 14 or denies lack of equal opportunity in terms of Article 16. The promotion to the post of Air Vice Marshal is governed by the policy of Air Force which is applicable to all officers falling in the zone of consideration. Therefore, the Promotion Policy cannot be said to be illegal, arbitrary and irrational warranting interference in exercise of power of judicial review. 23. Apart from the policy, we also find that the appellant is estopped to challenge the policy after participating in the selection process on the basis of such policy. It has been so held by this Court in Madan Lal & Ors. v. State of J & K & Ors. (1995) 3 SCC 486 :?10. Therefore, the result of the interview test on merits cannot be successfully challenged by a candidate who takes a chance to get selected at the said interview and who ultimately finds himself to be unsuccessful. It is also to be kept in view that in this petition we cannot sit as a court of appeal and try to reassess the relative merits of the candidates concerned who had been assessed at the oral interview nor can the petitioners successfully urge before us that they were given less marks though their performance was better. It is for the Interview Committee which amongst others consisted of a sitting High Court Judge to judge the relative merits of the candidates who were orally interviewed, in the light of the guidelines laid down by the relevant rules governing such interviews. Therefore, the assessment on merits as made by such an expert committee cannot be brought in challenge only on the ground that the assessment was not proper or justified as that would be the function of an appellate body and we are certainly not acting as a court of appeal over the assessment made by such an expert committee.?24. In a judgment reported as Ashok Kumar v. State of Bihar (2017) 4 SCC 357(2017) 4 SCC 357 , a three Judge Bench held that the appellants were estopped from turning around and challenging the selection once they were declared unsuccessful. The Court held as under:-"17. In Ramesh Chandra Shah v. Anil Joshi [Ramesh Chandra Shah v. Anil Joshi, (2013) 11 SCC 309 : (2011) 3 SCC (L&S) 129] , candidates who were competing for the post of Physiotherapist in the State of Uttarakhand participated in a written examination held in pursuance of an advertisement. This Court held that if they had cleared the test, the respondents would not have raised any objection to the selection process or to the method- ology adopted. Having taken a chance of selection, it was held that the respondents were disentitled to seek relief under Article 226 and would be deemed to have waived their right to challenge the advertisement or the procedure of selection. This Court held that: (SCC p. 318, para 18) ?18. It is settled law that a person who consciously takes part in the process of selection cannot, thereafter, turn around and question the method of selection and its outcome.? 18. In Chandigarh Admn. v. Jasmine Kaur [Chandigarh Admn. v. Jasmine Kaur, (2014) 10 SCC 521 : 6 SCEC 745] , it was held that a candidate who takes a calculated risk or chance by subjecting himself or herself to the selection process cannot turn around and complain that the process of selection was unfair after knowing of his or her non-selection. In Pradeep Kumar Rai v. Dinesh Kumar Pandey [Pradeep Kumar Rai v. Dinesh Kumar Pandey, (2015) 11 SCC 493 : (2015) 3 SCC (L&S) 274], this Court held that: (SCC p. 500, para 17) ?17. Moreover, we would concur with the Division Bench on one more point that the appellants had participated in the process of interview and not challenged it till the results were declared. There was a gap of almost four months between the interview and declaration of result. However, the appellants did not challenge it at that time. This, it appears that only when the appellants found themselves to be unsuccessful, they challenged the interview. This cannot be allowed. The candidates cannot approbate and reprobate at the same time. Either the candidates should not have participated in the interview and challenged the procedure or they should have challenged immediately after the interviews were conducted.? This principle has been reiterated in a recent judgment in Madras Institute of Development Studies v. K. Sivasubramaniyan [Madras Institute of Development Studies v. K. Sivasubramaniyan, (2016) 1 SCC 454 : (2016) 1 SCC (L&S) 164 : 7 SCEC 462] . 19. In the present case, regard must be had to the fact that the appellants were clearly on notice, when the fresh selection process took place that written examination would carry ninety marks and the interview, ten marks. The appellants participated in the selection process. Moreover, two other considerations weigh in balance. The High Court noted in the impugned judgment [Anurag Verma v. State of Bihar, 2011 SCC OnLine Pat 1289.] that the interpretation of Rule 6 was not free from vagueness. There was, in other words, no glaring or patent illegality in the process adopted by the High Court. There was an element of vagueness about whether Rule 6 which dealt with promotion merely incorporated the requirement of an examination provided in Rule 5 for direct recruitment to Class III posts or whether the marks and qualifying marks were also incorporated. Moreover, no prejudice was established to have been caused to the appellants by the 90:10 allocation.?25. In view thereof, we do not find that the policy circulated on February 20, 2008 suffers from any illegality which was rightly not interfered with by the learned Tribunal.
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10. The Policy dated February 20, 2008 does not use the expression that the promotion is based either on the principle of ?merit-cum- seniority? or ?seniority-cum-merit?.In view of the principles governing the right of promotion as delineated above, we find that the grievance of the appellant is in respect of lost chances of promotion inasmuch as he attained the age of superannuation before the vacancy arose. Clauses 17 and 22 are categorical that the select list of officers will be prepared from merit list and rearranged in order of seniority. Thus, the final list of the candidates falling within the zone of consideration in terms of clause 11 and who are eligible in terms of clause 13 is determined first by preparing the merit list on the basis of AR marks and Board marks. Thereafter, the names of the officers found meritorious are to be rearranged in order of seniority as per clauses 17 and 22 of the Promotion Policy. Thus, it ensures that the candidates falling within the zone of consideration are short listed for promotion but ultimate promotion from amongst the selected candidates is on the basis of seniority. Such policy per se cannot be said to be illegal, arbitrary and discriminatory so as to attract the violation of either Article 14 or Article 16 of the Constitution.In Major General Manoj Luthra, the Promotion Policy has not been struck down by this Court but in the facts of that case, in view of superannuation of the officer, the benefit was ordered to be conferred to the respondent. Such is not a binding precedent as the merit of the policy has not been examined.The promotion to the post of Air Vice Marshal is regulated by Circular dated February 20, 2008, therefore, the promotion can be claimed only in terms of eligibility and the norms fixed therein. Mere fact that the appellant could not be promoted on account of non-availability of vacancies before his superannuation is not a ground on which the Promotion Policy can be struck down. The Promotion Policy can be struck down only if the policy has no reasonable nexus with the objective to be achieved and is discriminatory. The lack of vacancy is not a ground on the basis of which promotion policy can be struck down. Since the Promotion Policy is in two stages as in Rajendra Kumar Srivastava i.e. to shortlist the candidates on the basis of eligibility criteria and on the basis of the marks obtained in the Annual Confidential Report and the marks given by the Board, therefore, the applicability of principle of seniority cannot be said to be arbitrary or irrational which may make the policy illegal and unsustainable.The promotion has to be affected in terms of statutory rules and in absence thereof, as per the executive instructions. The policy provides equal opportunities to the officers falling within the zone of consideration and subsequent promotion. Such policy is not discriminatory in terms of Article 14 or denies lack of equal opportunity in terms of Article 16. The promotion to the post of Air Vice Marshal is governed by the policy of Air Force which is applicable to all officers falling in the zone of consideration. Therefore, the Promotion Policy cannot be said to be illegal, arbitrary and irrational warranting interference in exercise of power of judicial review.Apart from the policy, we also find that the appellant is estopped to challenge the policy after participating in the selection process on the basis of such policy.In view thereof, we do not find that the policy circulated on February 20, 2008 suffers from any illegality which was rightly not interfered with by the learnedthe entire policy is required to be examined as to what is the criteria for promotion rather than using the expression either ?merit-cum-seniority? or ?seniority-cum-merit?.
|
Andhra Scientific Co., Ltd Vs. A . Seshagiri Rao & Another | he should be a witness. While going through the evidence and perusing the records I decided that the General Manager should depose as a witness". Quite apart from the incongruity, therefore, of the person who was at the initial stage presiding over the enquiry stepping into the witness-box at the later stage, we have here the serious position that Ramanatha Babu who was clearly in charge of the prosecution and was active in securing proper evidence to establish the charges took over the inquiry and gave the decision in the case. It is true, as stressed by the learned Attorney-General that the ultimate decision was not by the General Manager and so inform, what happened here is different from what happened in State of Uttar Pradesh v. Muhammad Nooh. 1958 SCR 595 : (AIR 1958 SC 86 ), where the District Superintendent of Police, presided over the enquiry except when he himself was examined as a witness, and also gave the decision, in an inquiry against a police constable. In substance, however, there is hardly any difference. One can see that in the facts of this case the General Manager and Ramanatha Babu formed practically one entity, with two bodies. At one stage, the first acts as a judge; at a later stage, he steps down as a witness, and the second becomes a judge.There is the further fact here that the person who gave the actual decision had actively been procuring the evidence, with the avowed motive of securing a conclusion against the workman. These being the facts, the manner in which the inquiry was conducted in this case can hardly he said to have insured fairplay which rules of natural justice require. The conclusion of the High Court that no proper enquiry had been held in the present case, and so the Labour Court was justified in considering on the evidence whether the workman was guilty of any of the charges is, therefore, correct.10. This brings us to the main contention urged in appeal that once. the Labour Court found that two of the allegations mentioned in the charge had been proved it had no jurisdiction to consider the question whether the order of dismissal made by the management was excessive. It is settled law that where the conclusion reached by the management as regards the guilt of the accused of the misconduct urged against him remain undisturbed the Industrial Tribunals will not ordinarily interfere with the punishment imposed.11. There can be no doubt, however, that when the acts in respect of which the workman is ultimately found guilty do not amount to misconduct at all under the Standing Orders of the employer the Tribunal not only can hut should consider the question what punishment should be inflicted on the altered finding of guilt. The Labour Court held that charges other than la and 8 had not been made out, and the charges 1a and 8 had only been partially made out. Charge la alleged that the items in the stores were never arranged properly and were never labelled. Charge 8 also related to the want of proper arrangement of the articles kept in the Stores Department. It appears that on finding that the stores were being kept in a confused manner the managing agents held an inspection in September 1955 and at the request of the Stores Manager Shri Seshagiri Rao, gave him time upto October 17, 1955, for arranging the items in order and fixing up labels, and the work was not completed even though the time was extended more than once. In view of this the Labour Court found that charges under 1a and 8 had been established. The reason why the Labour Court said that the charges were only partially established appears to be its finding that though the work of arranging; and labelling was not completed the major portion of it was done. We do not think, therefore, that that the High Court was right in proceeding on the basis that these two charges should be deemed to have been not proved at all". Proceeding, however, on the basis that these two charges, viz., 1a and 8 had been proved It is important to notice that the acts alleged in these charges do not constitute misconduct under the "Industrial Employment Standing Orders Rule" which govern the workmen. Rule 19 of this rule specified in 14 clauses- (a) to (n) acts or omissions which shall be treated as misconduct. The learned Attorney-General tried to convince us that the acts alleged in charges 1a and 8 come within Cl. (a) or Cl. (1) of R. 19. Under Cl. (a) wilful insubordination or disobedience of any lawful or reasonable order of a superior amounts to misconduct. There was no charge however. of any willful insubordination or disobedience but only of negligence. The acts of which the workman has been found guilty do rot amount to willful insubordination and disobedience. Nor do these acts amount to habitual negligence of work, which under Cl. (1), amounts to misconduct. Before a person can be said to be guilty of habitual negligence it has to be shown that he has been guilty of negligence on several occasions so as to show that this is his habit. The negligence charged here of which the workman was found guilty was in connection with one single matter, viz., the proper arrangement and labelling of stores and was alleged to have been committed on one single occasion. The fact that the negligence continued over several months does not make it habitual negligence.12. It is quite clear, therefore, that even on the assumption that the two charges, viz., charges 1a and 8 have been proved the workman was not guilty of any misconduct. That being the position the order of dismissal passed against him on the basis that he was guilty of "misconduct" could not be allowed to stand and the Labour Court had to consider for itself what punishment, if any, should be imposed. | 0[ds]7. What functions were actually being performed by the employee is a question of fact and the High Court has rightly pointed out that when the Labour Court has on a consideration of the evidence come to a conclusion as regards these functions and has on the basis thereof held that the employee comes within the definition of workman in S. 2 (s) of the Act the High Court would not interfere under Art. 226 except in cases where there is clear error on the face of the record.The learned Judges also pointed out that according to the evidence of the General Manager himself Seshagiri Rao could not make any appointment in his department could not suspend or dismiss any employee under him could not grant leave independently without the General Managers sanction that he was not consulted when retrenchment in the Stores Department took place and that he never imposed any fine on any employee. They pointed out further that in the staff regulations and the various memoranda issued from time to time by the Company the work of the Stores Manager had been divested of all elements that make for control or command. But even assuming that the functions assigned to and exercised by him as Stores Manager were not entirely lacking in the elements of initiative, command and control they also held as pointed out above that these functions were essentially supervisory in character. The learnedwas unable to lay his finger on any infirmity in this finding. The contention that the High Court erred in refusing to interfere with tin conclusion reached by the Labour Court that Shri Seshagiri Rao was a "Workman" at the relevant time cannot therefore succeed.9. Equally untenable, in our opinion, is the ground that the High Court should have held that the inquiry held by the management was not vitiated by violation of rules of natural justice. The sole purpose of rules of procedure which are referred to as rules of natural justice is to ensureus, therefore, see what happened in this case during the inquiry. The inquiry was commenced by the General Manager himself and when five witnesses had been examined, Ramanatha Babu took over the enquiry and examined the General Manager as a witness. This gentleman has been frank in disclosing the reasons for this unusual conduct. "I did not decide," he says in his evidence, "as to who should be witnesses when the inquiry began. General Manager came as a witness in the inquiry I wanted General Manager to be a witness towards the end. So I took up the inquiry myself. I did not know at the beginning that the General Manager should be a witness. It was at last I decided that he should be a witness. While going through the evidence and perusing the records I decided that the General Manager should depose as a witness". Quite apart from the incongruity, therefore, of the person who was at the initial stage presiding over the enquiry stepping into theat the later stage, we have here the serious position that Ramanatha Babu who was clearly in charge of the prosecution and was active in securing proper evidence to establish the charges took over the inquiry and gave the decision in the case.It is true, as stressed by the learnedthat the ultimate decision was not by the General Manager and so inform, what happened here is different from what happened in State of Uttar Pradesh v. Muhammad Nooh. 1958 SCR 595 : (AIR 1958 SC 86 ), where the District Superintendent of Police, presided over the enquiry except when he himself was examined as a witness, and also gave the decision, in an inquiry against a police constable.In substance, however, there is hardly any difference. One can see that in the facts of this case the General Manager and Ramanatha Babu formed practically one entity, with two bodies. At one stage, the first acts as a judge; at a later stage, he steps down as a witness, and the second becomes a judge.There is the further fact here that the person who gave the actual decision had actively been procuring the evidence, with the avowed motive of securing a conclusion against the workman. These being the facts, the manner in which the inquiry was conducted in this case can hardly he said to have insured fairplay which rules of natural justice require. The conclusion of the High Court that no proper enquiry had been held in the present case, and so the Labour Court was justified in considering on the evidence whether the workman was guilty of any of the charges is, therefore, correct.10. This brings us to the main contention urged in appeal that once. the Labour Court found that two of the allegations mentioned in the charge had been proved it had no jurisdiction to consider the question whether the order of dismissal made by the management was excessive. It is settled law that where the conclusion reached by the management as regards the guilt of the accused of the misconduct urged against him remain undisturbed the Industrial Tribunals will not ordinarily interfere with the punishment imposed.There can be no doubt, however, that when the acts in respect of which the workman is ultimately found guilty do not amount to misconduct at all under the Standing Orders of the employer the Tribunal not only can hut should consider the question what punishment should be inflicted on the altered finding of guilt. The Labour Court held that charges other than la and 8 had not been made out, and the charges 1a and 8 had only been partially made out. Charge la alleged that the items in the stores were never arranged properly and were never labelled. Charge 8 also related to the want of proper arrangement of the articles kept in the Stores Department. It appears that on finding that the stores were being kept in a confused manner the managing agents held an inspection in September 1955 and at the request of the Stores Manager Shri Seshagiri Rao, gave him time upto October 17, 1955, for arranging the items in order and fixing up labels, and the work was not completed even though the time was extended more than once. In view of this the Labour Court found that charges under 1a and 8 had been established. The reason why the Labour Court said that the charges were only partially established appears to be its finding that though the work of arranging; and labelling was not completed the major portion of it was done. We do not think, therefore, that that the High Court was right in proceeding on the basis that these two charges should be deemed to have been not proved at all". Proceeding, however, on the basis that these two charges, viz., 1a and 8 had been proved It is important to notice that the acts alleged in these charges do not constitute misconduct under the "Industrial Employment Standing Orders Rule" which govern the workmen. Rule 19 of this rule specified in 14 clauses(a) to (n) acts or omissions which shall be treated as misconduct. The learnedtried to convince us that the acts alleged in charges 1a and 8 come within Cl. (a) or Cl. (1) of R. 19. Under Cl. (a) wilful insubordination or disobedience of any lawful or reasonable order of a superior amounts to misconduct. There was no charge however. of any willful insubordination or disobedience but only of negligence. The acts of which the workman has been found guilty do rot amount to willful insubordination and disobedience. Nor do these acts amount to habitual negligence of work, which under Cl. (1), amounts to misconduct. Before a person can be said to be guilty of habitual negligence it has to be shown that he has been guilty of negligence on several occasions so as to show that this is his habit. The negligence charged here of which the workman was found guilty was in connection with one single matter, viz., the proper arrangement and labelling of stores and was alleged to have been committed on one single occasion. The fact that the negligence continued over several months does not make it habitual negligence.12. It is quite clear, therefore, that even on the assumption that the two charges, viz., charges 1a and 8 have been proved the workman was not guilty of any misconduct. That being the position the order of dismissal passed against him on the basis that he was guilty of "misconduct" could not be allowed to stand and the Labour Court had to consider for itself what punishment, if any, should be imposed. | 0 | 2,790 | 1,580 | ### 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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he should be a witness. While going through the evidence and perusing the records I decided that the General Manager should depose as a witness". Quite apart from the incongruity, therefore, of the person who was at the initial stage presiding over the enquiry stepping into the witness-box at the later stage, we have here the serious position that Ramanatha Babu who was clearly in charge of the prosecution and was active in securing proper evidence to establish the charges took over the inquiry and gave the decision in the case. It is true, as stressed by the learned Attorney-General that the ultimate decision was not by the General Manager and so inform, what happened here is different from what happened in State of Uttar Pradesh v. Muhammad Nooh. 1958 SCR 595 : (AIR 1958 SC 86 ), where the District Superintendent of Police, presided over the enquiry except when he himself was examined as a witness, and also gave the decision, in an inquiry against a police constable. In substance, however, there is hardly any difference. One can see that in the facts of this case the General Manager and Ramanatha Babu formed practically one entity, with two bodies. At one stage, the first acts as a judge; at a later stage, he steps down as a witness, and the second becomes a judge.There is the further fact here that the person who gave the actual decision had actively been procuring the evidence, with the avowed motive of securing a conclusion against the workman. These being the facts, the manner in which the inquiry was conducted in this case can hardly he said to have insured fairplay which rules of natural justice require. The conclusion of the High Court that no proper enquiry had been held in the present case, and so the Labour Court was justified in considering on the evidence whether the workman was guilty of any of the charges is, therefore, correct.10. This brings us to the main contention urged in appeal that once. the Labour Court found that two of the allegations mentioned in the charge had been proved it had no jurisdiction to consider the question whether the order of dismissal made by the management was excessive. It is settled law that where the conclusion reached by the management as regards the guilt of the accused of the misconduct urged against him remain undisturbed the Industrial Tribunals will not ordinarily interfere with the punishment imposed.11. There can be no doubt, however, that when the acts in respect of which the workman is ultimately found guilty do not amount to misconduct at all under the Standing Orders of the employer the Tribunal not only can hut should consider the question what punishment should be inflicted on the altered finding of guilt. The Labour Court held that charges other than la and 8 had not been made out, and the charges 1a and 8 had only been partially made out. Charge la alleged that the items in the stores were never arranged properly and were never labelled. Charge 8 also related to the want of proper arrangement of the articles kept in the Stores Department. It appears that on finding that the stores were being kept in a confused manner the managing agents held an inspection in September 1955 and at the request of the Stores Manager Shri Seshagiri Rao, gave him time upto October 17, 1955, for arranging the items in order and fixing up labels, and the work was not completed even though the time was extended more than once. In view of this the Labour Court found that charges under 1a and 8 had been established. The reason why the Labour Court said that the charges were only partially established appears to be its finding that though the work of arranging; and labelling was not completed the major portion of it was done. We do not think, therefore, that that the High Court was right in proceeding on the basis that these two charges should be deemed to have been not proved at all". Proceeding, however, on the basis that these two charges, viz., 1a and 8 had been proved It is important to notice that the acts alleged in these charges do not constitute misconduct under the "Industrial Employment Standing Orders Rule" which govern the workmen. Rule 19 of this rule specified in 14 clauses- (a) to (n) acts or omissions which shall be treated as misconduct. The learned Attorney-General tried to convince us that the acts alleged in charges 1a and 8 come within Cl. (a) or Cl. (1) of R. 19. Under Cl. (a) wilful insubordination or disobedience of any lawful or reasonable order of a superior amounts to misconduct. There was no charge however. of any willful insubordination or disobedience but only of negligence. The acts of which the workman has been found guilty do rot amount to willful insubordination and disobedience. Nor do these acts amount to habitual negligence of work, which under Cl. (1), amounts to misconduct. Before a person can be said to be guilty of habitual negligence it has to be shown that he has been guilty of negligence on several occasions so as to show that this is his habit. The negligence charged here of which the workman was found guilty was in connection with one single matter, viz., the proper arrangement and labelling of stores and was alleged to have been committed on one single occasion. The fact that the negligence continued over several months does not make it habitual negligence.12. It is quite clear, therefore, that even on the assumption that the two charges, viz., charges 1a and 8 have been proved the workman was not guilty of any misconduct. That being the position the order of dismissal passed against him on the basis that he was guilty of "misconduct" could not be allowed to stand and the Labour Court had to consider for itself what punishment, if any, should be imposed.
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be a witness. It was at last I decided that he should be a witness. While going through the evidence and perusing the records I decided that the General Manager should depose as a witness". Quite apart from the incongruity, therefore, of the person who was at the initial stage presiding over the enquiry stepping into theat the later stage, we have here the serious position that Ramanatha Babu who was clearly in charge of the prosecution and was active in securing proper evidence to establish the charges took over the inquiry and gave the decision in the case.It is true, as stressed by the learnedthat the ultimate decision was not by the General Manager and so inform, what happened here is different from what happened in State of Uttar Pradesh v. Muhammad Nooh. 1958 SCR 595 : (AIR 1958 SC 86 ), where the District Superintendent of Police, presided over the enquiry except when he himself was examined as a witness, and also gave the decision, in an inquiry against a police constable.In substance, however, there is hardly any difference. One can see that in the facts of this case the General Manager and Ramanatha Babu formed practically one entity, with two bodies. At one stage, the first acts as a judge; at a later stage, he steps down as a witness, and the second becomes a judge.There is the further fact here that the person who gave the actual decision had actively been procuring the evidence, with the avowed motive of securing a conclusion against the workman. These being the facts, the manner in which the inquiry was conducted in this case can hardly he said to have insured fairplay which rules of natural justice require. The conclusion of the High Court that no proper enquiry had been held in the present case, and so the Labour Court was justified in considering on the evidence whether the workman was guilty of any of the charges is, therefore, correct.10. This brings us to the main contention urged in appeal that once. the Labour Court found that two of the allegations mentioned in the charge had been proved it had no jurisdiction to consider the question whether the order of dismissal made by the management was excessive. It is settled law that where the conclusion reached by the management as regards the guilt of the accused of the misconduct urged against him remain undisturbed the Industrial Tribunals will not ordinarily interfere with the punishment imposed.There can be no doubt, however, that when the acts in respect of which the workman is ultimately found guilty do not amount to misconduct at all under the Standing Orders of the employer the Tribunal not only can hut should consider the question what punishment should be inflicted on the altered finding of guilt. The Labour Court held that charges other than la and 8 had not been made out, and the charges 1a and 8 had only been partially made out. Charge la alleged that the items in the stores were never arranged properly and were never labelled. Charge 8 also related to the want of proper arrangement of the articles kept in the Stores Department. It appears that on finding that the stores were being kept in a confused manner the managing agents held an inspection in September 1955 and at the request of the Stores Manager Shri Seshagiri Rao, gave him time upto October 17, 1955, for arranging the items in order and fixing up labels, and the work was not completed even though the time was extended more than once. In view of this the Labour Court found that charges under 1a and 8 had been established. The reason why the Labour Court said that the charges were only partially established appears to be its finding that though the work of arranging; and labelling was not completed the major portion of it was done. We do not think, therefore, that that the High Court was right in proceeding on the basis that these two charges should be deemed to have been not proved at all". Proceeding, however, on the basis that these two charges, viz., 1a and 8 had been proved It is important to notice that the acts alleged in these charges do not constitute misconduct under the "Industrial Employment Standing Orders Rule" which govern the workmen. Rule 19 of this rule specified in 14 clauses(a) to (n) acts or omissions which shall be treated as misconduct. The learnedtried to convince us that the acts alleged in charges 1a and 8 come within Cl. (a) or Cl. (1) of R. 19. Under Cl. (a) wilful insubordination or disobedience of any lawful or reasonable order of a superior amounts to misconduct. There was no charge however. of any willful insubordination or disobedience but only of negligence. The acts of which the workman has been found guilty do rot amount to willful insubordination and disobedience. Nor do these acts amount to habitual negligence of work, which under Cl. (1), amounts to misconduct. Before a person can be said to be guilty of habitual negligence it has to be shown that he has been guilty of negligence on several occasions so as to show that this is his habit. The negligence charged here of which the workman was found guilty was in connection with one single matter, viz., the proper arrangement and labelling of stores and was alleged to have been committed on one single occasion. The fact that the negligence continued over several months does not make it habitual negligence.12. It is quite clear, therefore, that even on the assumption that the two charges, viz., charges 1a and 8 have been proved the workman was not guilty of any misconduct. That being the position the order of dismissal passed against him on the basis that he was guilty of "misconduct" could not be allowed to stand and the Labour Court had to consider for itself what punishment, if any, should be imposed.
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Madan Lal Jaggi Vs. District Magistrate, Delhi and Another | HEGDE, J. 1. The appellants petition under Article 226 of the Constitution challenging the legality of the order passed by the District Magistrate, Delhi having been summarily dismissed by the High Court of Delhi, he has brought this appeal after obtaining special leave from this Court. 2. The appellant claims to be the sole agent of the Indian Railways for the Subzimandi Zone of Delhi. As per his contract with the Railway, he is entrusted with the duty of receiving goods and parcels as this office from various consignors and transmitting the same by train to consignees to all parts of the country. Likewise, all goods and parcels received at various Delhi Stations for delivering to consignees residing or having their offices or places of business within Subzimandi Zone have to be taken delivery of by him and distributed to the consignees through his office. His further case is that for that purpose, the railways had granted him in 1961 lease of a plot of land measuring more than 500 sq. yards situate at main chowk, Barafkhana, Subzimandi, Delhi for the construction of his office and go downs. He claims that he had put up a building on that plot of land costing about 2 1/2 lakhs of rupees. He also claims to own large number of trucks for the purpose of carrying on his business. 3. His complaint is that the impugned order forbids the movement of all motor trucks to and from his office and godown, practically throughout the day. This order, according to him, if sustained would completely stop his business and thereby infringe his fundamental right under Article 19(1)(g) of the Constitution. He also urges that the order in question is not authorised by law. 4. The allegations made in the petition make out a prima facie case in support of the relief asked for by the appellant. Therefore the High Court the impugned order was made in accordance with law and further whether the same contravenes the fundamental right guaranteed under Article 19(1)(g). If the allegations made by the appellant in his petition are correct then it is for the State to satisfy the court that the restrictions imposed are reasonable restrictions in the interest of the general public. We are of the opinion that the High Court should not have dismissed summarily the petition of the appellant.5. In this Court a counter-affidavit has been filed on behalf of the respondents justifying the impugned order. The plea raised by the respondents requires investigation. That should be appropriately done by the High Court. | 1[ds]4. The allegations made in the petition make out a prima facie case in support of the relief asked for by the appellant. Therefore the High Court the impugned order was made in accordance with law and further whether the same contravenes the fundamental right guaranteed under Article 19(1)(g). If the allegations made by the appellant in his petition are correct then it is for the State to satisfy the court that the restrictions imposed are reasonable restrictions in the interest of the general public. We are of the opinion that the High Court should not have dismissed summarily the petition of the appellant.5. In this Court at has been filed on behalf of the respondents justifying the impugned order. The plea raised by the respondents requires investigation. That should be appropriately done by the High Court. | 1 | 474 | 155 | ### Instruction:
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HEGDE, J. 1. The appellants petition under Article 226 of the Constitution challenging the legality of the order passed by the District Magistrate, Delhi having been summarily dismissed by the High Court of Delhi, he has brought this appeal after obtaining special leave from this Court. 2. The appellant claims to be the sole agent of the Indian Railways for the Subzimandi Zone of Delhi. As per his contract with the Railway, he is entrusted with the duty of receiving goods and parcels as this office from various consignors and transmitting the same by train to consignees to all parts of the country. Likewise, all goods and parcels received at various Delhi Stations for delivering to consignees residing or having their offices or places of business within Subzimandi Zone have to be taken delivery of by him and distributed to the consignees through his office. His further case is that for that purpose, the railways had granted him in 1961 lease of a plot of land measuring more than 500 sq. yards situate at main chowk, Barafkhana, Subzimandi, Delhi for the construction of his office and go downs. He claims that he had put up a building on that plot of land costing about 2 1/2 lakhs of rupees. He also claims to own large number of trucks for the purpose of carrying on his business. 3. His complaint is that the impugned order forbids the movement of all motor trucks to and from his office and godown, practically throughout the day. This order, according to him, if sustained would completely stop his business and thereby infringe his fundamental right under Article 19(1)(g) of the Constitution. He also urges that the order in question is not authorised by law. 4. The allegations made in the petition make out a prima facie case in support of the relief asked for by the appellant. Therefore the High Court the impugned order was made in accordance with law and further whether the same contravenes the fundamental right guaranteed under Article 19(1)(g). If the allegations made by the appellant in his petition are correct then it is for the State to satisfy the court that the restrictions imposed are reasonable restrictions in the interest of the general public. We are of the opinion that the High Court should not have dismissed summarily the petition of the appellant.5. In this Court a counter-affidavit has been filed on behalf of the respondents justifying the impugned order. The plea raised by the respondents requires investigation. That should be appropriately done by the High Court.
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1
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4. The allegations made in the petition make out a prima facie case in support of the relief asked for by the appellant. Therefore the High Court the impugned order was made in accordance with law and further whether the same contravenes the fundamental right guaranteed under Article 19(1)(g). If the allegations made by the appellant in his petition are correct then it is for the State to satisfy the court that the restrictions imposed are reasonable restrictions in the interest of the general public. We are of the opinion that the High Court should not have dismissed summarily the petition of the appellant.5. In this Court at has been filed on behalf of the respondents justifying the impugned order. The plea raised by the respondents requires investigation. That should be appropriately done by the High Court.
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State Of Kerala And Others Vs. Bhavani Tea Produce Co. Ltd | delivered for inclusion in the surplus pool for any purposes for which it is authorised to expend money from the pool fund." The failure to register, contravention of S. 25, making of a false return, obstruction and contravention of the other provisions of the Coffee Act, some of which we have not found necessary to mention here, are constituted offences and there is provision for punishment and penalty. The Coffee Board is also given the power to seize coffee withheld from inclusion in the surplus pool.In this way, the marketing of coffee is made the duty of the Coffee Board and the right of a party who has made contributions to the surplus pool is merely to receive payment for coffee which is handed over. The quantum of payment is determined, at first according to the differential scale of valuation prepared by the Coffee Board. It must be remembered that under S. 34 (2) the payment is in the proportion which the value of coffee delivered by the owner bears to the value of all coffee delivered to the surplus pool out of one years crop. But an owner need not wait and may accept an immediate settlement for his coffee. It follows that coffee delivered to the Coffee Board becomes the property of the Board no sooner it is delivered. The Coffee Board can borrow money by pledging it and is not required to return any part of that coffee to the producer. It only sells it and gives to the planter price proportionate to the value of all coffee in the surplus pool for that year, unless the planter settles for an immediate payment. 8. The appellant Company maintains its accounts on the mercantile system. When it handed over coffee to the Coffee Board it entered the price of the coffee according to the valuation of the Coffee Board in its books of account although it did not receive payment immediately because as has been shown above the payment is delayed unless immediate settlement is made. The payment for coffee handed over before April 1, 1954 was received after that date. No. doubt actual payment was received in the previous years relevant to the two assessment years, but coffee was handed over to the Coffee Board in the earlier years for which no tax could be demanded. Was there a sale to the Coffee Board? The answer must be in the affirmative. The Coffee Board is neither a trustee nor even an agent of the planter. It is not accountable to the owner, except as to payment for coffee received and valued according to the differential prices. All coffee which the Coffee Board obtains under the Coffee Act is put in a pool and gets mixed up with other coffee. Coffee in the pool is disposed of on behalf of the Coffee Board. The Coffee Board only pays a proportionate price to the planter. Even though the planter does not actually sell coffee to the Coffee Board there is in reality a sale by operation of law as a result of which the planter ceases to be the owner of coffee the moment he has handed over his produce to the Coffee Board. He is then entitled to receive payment and is not concerned any more with his coffee. The unsold coffee is not returned to him and he does not enjoy any rights of ownership in it. The Coffee Board can pledge it and sell it as and when it likes. In these circumstances it is plain that the handing over of coffee by the planter amounts to a sale to the Coffee Board and the payment of the price is from the sale of all the coffee in the surplus pool unless the planter settles for immediate payment. The system of account must make a difference. If it were a cash system income would be taxable when actually received but in the mercantile system it would be taxable in the year in which the relevant entry is made about the sale of coffee to the Coffee Board. 9. We were referred to some rulings of the Madras and the Kerala High Courts. In Puthuthottam Estates (1943) Ltd., v. Agricultural Income-tax Officer, Coimbatore, 1958-34 ITR 764 (Mad), Rajagopalan, J. held that there was nothing in the Madras Plantations Agricultural Income-tax Act or the Rules thereunder, which exempted produce gathered earlier than 1st April 1954 from taxation if payment was received in any previous year relevant to an assessment year under the Madras Plantations Agricultural Income-tax Act. The judgement of Rajagopalan, J., was reversed on appeal in Puthuthottam Estates (1943) Ltd., v. Agricultural Income-tax Officer, 1962-45 ITR 86 (Mad). Rajamannar. C. J. and Jagadisan, J. held that, if the sale took place after 1st April 1954, tax was payable no matter if the produce was of an earlier year but if the sale took place earlier than that date, tax would not be payable even if the price was realized later. In the Kerala High Court distinction was made between entries under cash and mercantile systems of book-keeping. In Amalgamated Coffee Estates Ltd. v. State of Kerala, 1962-45 ITR 358 (Ker), the assessee followed the mercantile system and payments entered in the accounting period April 1, 1953 to March 31, 1954 were held not taxable even though actually received after April 1, 1955. The reasoning in these two cases is the same as in this judgment. It is, therefore, not necessary to refer to them. The judgment under appeal follows the earlier decision of the same Court and the Divisional Bench decision of the Madras High Court, and in our opinion the High Courts have taken the right view of the matter. 10. The High Court was thus right in holding that there was no sale in the years relevant to the assessment years for which the tax was demanded. The sale had taken place in the earlier years over which the Agricultural Income-tax Act did not operate. | 0[ds]"Plantation" in the Act means any land used for growing certain crops including coffee. Section 3 lays charge of agricultural income-tax and for our purpose we need read only the first sub-sectionThe failure to register, contravention of S. 25, making of a false return, obstruction and contravention of the other provisions of the Coffee Act, some of which we have not found necessary to mention here, are constituted offences and there is provision for punishment and penalty. The Coffee Board is also given the power to seize coffee withheld from inclusion in the surplus pool.In this way, the marketing of coffee is made the duty of the Coffee Board and the right of a party who has made contributions to the surplus pool is merely to receive payment for coffee which is handed over. The quantum of payment is determined, at first according to the differential scale of valuation prepared by the Coffee Board. It must be remembered that under S. 34 (2) the payment is in the proportion which the value of coffee delivered by the owner bears to the value of all coffee delivered to the surplus pool out of one years crop. But an owner need not wait and may accept an immediate settlement for his coffee. It follows that coffee delivered to the Coffee Board becomes the property of the Board no sooner it is delivered. The Coffee Board can borrow money by pledging it and is not required to return any part of that coffee to the producer. It only sells it and gives to the planter price proportionate to the value of all coffee in the surplus pool for that year, unless the planter settles for an immediate paymentIn these circumstances it is plain that the handing over of coffee by the planter amounts to a sale to the Coffee Board and the payment of the price is from the sale of all the coffee in the surplus pool unless the planter settles for immediate payment. The system of account must make a difference. If it were a cash system income would be taxable when actually received but in the mercantile system it would be taxable in the year in which the relevant entry is made about the sale of coffee to the Coffee BoardWas there a sale to the Coffee Board? The answer must be in the affirmative. The Coffee Board is neither a trustee nor even an agent of the planter. It is not accountable to the owner, except as to payment for coffee received and valued according to the differential prices. All coffee which the Coffee Board obtains under the Coffee Act is put in a pool and gets mixed up with other coffee. Coffee in the pool is disposed of on behalf of the Coffee Board. The Coffee Board only pays a proportionate price to the planter. Even though the planter does not actually sell coffee to the Coffee Board there is in reality a sale by operation of law as a result of which the planter ceases to be the owner of coffee the moment he has handed over his produce to the Coffee Board. He is then entitled to receive payment and is not concerned any more with his coffee. The unsold coffee is not returned to him and he does not enjoy any rights of ownership in it. The Coffee Board can pledge it and sell it as and when it likesThe judgment under appeal follows the earlier decision of the same Court and the Divisional Bench decision of the Madras High Court, and in our opinion the High Courts have taken the right view of the matterThe High Court was thus right in holding that there was no sale in the years relevant to the assessment years for which the tax was demanded. The sale had taken place in the earlier years over which the Agricultural Income-tax Act did not operate. | 0 | 3,630 | 695 | ### Instruction:
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delivered for inclusion in the surplus pool for any purposes for which it is authorised to expend money from the pool fund." The failure to register, contravention of S. 25, making of a false return, obstruction and contravention of the other provisions of the Coffee Act, some of which we have not found necessary to mention here, are constituted offences and there is provision for punishment and penalty. The Coffee Board is also given the power to seize coffee withheld from inclusion in the surplus pool.In this way, the marketing of coffee is made the duty of the Coffee Board and the right of a party who has made contributions to the surplus pool is merely to receive payment for coffee which is handed over. The quantum of payment is determined, at first according to the differential scale of valuation prepared by the Coffee Board. It must be remembered that under S. 34 (2) the payment is in the proportion which the value of coffee delivered by the owner bears to the value of all coffee delivered to the surplus pool out of one years crop. But an owner need not wait and may accept an immediate settlement for his coffee. It follows that coffee delivered to the Coffee Board becomes the property of the Board no sooner it is delivered. The Coffee Board can borrow money by pledging it and is not required to return any part of that coffee to the producer. It only sells it and gives to the planter price proportionate to the value of all coffee in the surplus pool for that year, unless the planter settles for an immediate payment. 8. The appellant Company maintains its accounts on the mercantile system. When it handed over coffee to the Coffee Board it entered the price of the coffee according to the valuation of the Coffee Board in its books of account although it did not receive payment immediately because as has been shown above the payment is delayed unless immediate settlement is made. The payment for coffee handed over before April 1, 1954 was received after that date. No. doubt actual payment was received in the previous years relevant to the two assessment years, but coffee was handed over to the Coffee Board in the earlier years for which no tax could be demanded. Was there a sale to the Coffee Board? The answer must be in the affirmative. The Coffee Board is neither a trustee nor even an agent of the planter. It is not accountable to the owner, except as to payment for coffee received and valued according to the differential prices. All coffee which the Coffee Board obtains under the Coffee Act is put in a pool and gets mixed up with other coffee. Coffee in the pool is disposed of on behalf of the Coffee Board. The Coffee Board only pays a proportionate price to the planter. Even though the planter does not actually sell coffee to the Coffee Board there is in reality a sale by operation of law as a result of which the planter ceases to be the owner of coffee the moment he has handed over his produce to the Coffee Board. He is then entitled to receive payment and is not concerned any more with his coffee. The unsold coffee is not returned to him and he does not enjoy any rights of ownership in it. The Coffee Board can pledge it and sell it as and when it likes. In these circumstances it is plain that the handing over of coffee by the planter amounts to a sale to the Coffee Board and the payment of the price is from the sale of all the coffee in the surplus pool unless the planter settles for immediate payment. The system of account must make a difference. If it were a cash system income would be taxable when actually received but in the mercantile system it would be taxable in the year in which the relevant entry is made about the sale of coffee to the Coffee Board. 9. We were referred to some rulings of the Madras and the Kerala High Courts. In Puthuthottam Estates (1943) Ltd., v. Agricultural Income-tax Officer, Coimbatore, 1958-34 ITR 764 (Mad), Rajagopalan, J. held that there was nothing in the Madras Plantations Agricultural Income-tax Act or the Rules thereunder, which exempted produce gathered earlier than 1st April 1954 from taxation if payment was received in any previous year relevant to an assessment year under the Madras Plantations Agricultural Income-tax Act. The judgement of Rajagopalan, J., was reversed on appeal in Puthuthottam Estates (1943) Ltd., v. Agricultural Income-tax Officer, 1962-45 ITR 86 (Mad). Rajamannar. C. J. and Jagadisan, J. held that, if the sale took place after 1st April 1954, tax was payable no matter if the produce was of an earlier year but if the sale took place earlier than that date, tax would not be payable even if the price was realized later. In the Kerala High Court distinction was made between entries under cash and mercantile systems of book-keeping. In Amalgamated Coffee Estates Ltd. v. State of Kerala, 1962-45 ITR 358 (Ker), the assessee followed the mercantile system and payments entered in the accounting period April 1, 1953 to March 31, 1954 were held not taxable even though actually received after April 1, 1955. The reasoning in these two cases is the same as in this judgment. It is, therefore, not necessary to refer to them. The judgment under appeal follows the earlier decision of the same Court and the Divisional Bench decision of the Madras High Court, and in our opinion the High Courts have taken the right view of the matter. 10. The High Court was thus right in holding that there was no sale in the years relevant to the assessment years for which the tax was demanded. The sale had taken place in the earlier years over which the Agricultural Income-tax Act did not operate.
### Response:
0
### Explanation:
"Plantation" in the Act means any land used for growing certain crops including coffee. Section 3 lays charge of agricultural income-tax and for our purpose we need read only the first sub-sectionThe failure to register, contravention of S. 25, making of a false return, obstruction and contravention of the other provisions of the Coffee Act, some of which we have not found necessary to mention here, are constituted offences and there is provision for punishment and penalty. The Coffee Board is also given the power to seize coffee withheld from inclusion in the surplus pool.In this way, the marketing of coffee is made the duty of the Coffee Board and the right of a party who has made contributions to the surplus pool is merely to receive payment for coffee which is handed over. The quantum of payment is determined, at first according to the differential scale of valuation prepared by the Coffee Board. It must be remembered that under S. 34 (2) the payment is in the proportion which the value of coffee delivered by the owner bears to the value of all coffee delivered to the surplus pool out of one years crop. But an owner need not wait and may accept an immediate settlement for his coffee. It follows that coffee delivered to the Coffee Board becomes the property of the Board no sooner it is delivered. The Coffee Board can borrow money by pledging it and is not required to return any part of that coffee to the producer. It only sells it and gives to the planter price proportionate to the value of all coffee in the surplus pool for that year, unless the planter settles for an immediate paymentIn these circumstances it is plain that the handing over of coffee by the planter amounts to a sale to the Coffee Board and the payment of the price is from the sale of all the coffee in the surplus pool unless the planter settles for immediate payment. The system of account must make a difference. If it were a cash system income would be taxable when actually received but in the mercantile system it would be taxable in the year in which the relevant entry is made about the sale of coffee to the Coffee BoardWas there a sale to the Coffee Board? The answer must be in the affirmative. The Coffee Board is neither a trustee nor even an agent of the planter. It is not accountable to the owner, except as to payment for coffee received and valued according to the differential prices. All coffee which the Coffee Board obtains under the Coffee Act is put in a pool and gets mixed up with other coffee. Coffee in the pool is disposed of on behalf of the Coffee Board. The Coffee Board only pays a proportionate price to the planter. Even though the planter does not actually sell coffee to the Coffee Board there is in reality a sale by operation of law as a result of which the planter ceases to be the owner of coffee the moment he has handed over his produce to the Coffee Board. He is then entitled to receive payment and is not concerned any more with his coffee. The unsold coffee is not returned to him and he does not enjoy any rights of ownership in it. The Coffee Board can pledge it and sell it as and when it likesThe judgment under appeal follows the earlier decision of the same Court and the Divisional Bench decision of the Madras High Court, and in our opinion the High Courts have taken the right view of the matterThe High Court was thus right in holding that there was no sale in the years relevant to the assessment years for which the tax was demanded. The sale had taken place in the earlier years over which the Agricultural Income-tax Act did not operate.
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Poolpandi Etc. Etc Vs. Superintendent, Central Excise Andothers Etc. Etc | invisible exercise of power by government officials, would be unconstitutional. We do not share the apprehension as expressed above in the minority judgment in connection with enquiry and investigation under the Customs Act ad other similar statutes of our country. There is no question of whisking away the persons concerned in the cases before us for secret interrogation, and there is no reason for us to impute the motive of preparing the groundwork of false cases for securing conviction of innocent persons, to the officers of the state duly engaged in performing their duty of prevention and detection of economic crimes and recovering misappropriate money justly belonging to the public. Reference was also made to the observation in the judgment in Carlos Garza De Luna, Appt. v. United States, 1 American Law Reports 3d 969; setting out the historical background of the right of silence of an accused in a criminal case. Mr. Salve has relied upon the opinion of Wisdom, Circuit Judge, that the history of the development of the right of silence is a history of accretions, not of an avulsion and the line of growth in the course of time discloses the expanding conception of the right than is restricted application. The Judge was fair enough to discuss the other point of view espoused by the great jurists of both sides of Atlantic before expressing his opinion. In any event we are not concerned with the right of an accused in a criminal case and the decision is, therefore, not relevant at all. The facts as emerging from the judgment indicate that narcotics were thrown from a car carrying the two persons accused in the case. One of the accused persons testified at the trial and his counsel in argument to the jury made adverse comments on the failure of the other accused to go to the witness box. The first accused was acquitted and the second accused was convicted. The question of the right of silence of the accused came up for consideration in this set up. In the cases before us the persons concerned are not accused and we do not find any justification for "expanding" the right reserved by the constitution of India in favour of accused persons to be enjoyed by others.11. We do not find any force in the arguments of Mr. Salve and Mr. Lalit that if a person is called away from his own house and questioned in the atmosphere of the customs office without the assistance of his lawyer or his friends his constitutional right under Article 21 is violated. The argument proceeds thus : if the person who is used to certain comforts and convenience is asked to come by himself to the Department for answering question it amounts to mental torture. We are unable to agree. It is true that large majority of persons connected with illegal trade and evasion of taxes and duties are in a position to afford luxuries on lavish scale of which an honest ordinary citizen of this country cannot dream of and they are surrounded by persons similarly involved either directly or indirectly in such pursuits. But that cannot be a ground for holding that he has a constitutional right to claim similar luxuries and company of his choice. Mr. Salve was fair enough not to pursue his argument with reference to the comfort part, but continued to maintain that the appellant is entitled to the company of his choice during the questioning. The purpose of the enquiry under the Customs Act and the other similar statutes will be completely frustrated if the whims of the persons in possession of useful information for the departments are allowed to prevail. For achieving the object of such an enquiry if the appropriate authorities be of the view that such persons should be dissociated from the atmosphere and the company of persons who provide encouragement to them in adopting a non-cooperative attitude to the machineries of law, there cannot be any legitimate objection in depriving them of such company. The relevant provisions of the Constitution in this regard have to be construed in the spirit they were made and the benefits thereunder should not be "expanded" to favour exploiters engaged in tax evasion at the cost of public exchequer. Applying the `just, fair and reasonable test we hold that there in no merit in the stand of appellant before us. 12. Both Mr. Lalit, the learned counsel in Writ Petition (Crl.) No 717 of 1991 and the learned counsel for the respondent in Criminal Appeal No. 476 of 1986 (arising out of a FERA case) reiterated the stand that the parties represented by them respectively should be treated to be in identical position as an accused and consequently should be allowed the protection under clause (3) of Article 20. In view of the judgments of this Court and the discussion as mentioned earlier, the argument cannot be accepted. Mr. Tulsi, the learned Additional Solicitor General, was right in pointing out the distinction between an accused in a criminal case and a person called for interrogation under the present Acts as discussed at page 466 in Romesh Chandra Mehtas case (supra). 13. The judgment under challenge in Criminal Appeal No. 476 of 1986 deals with several questions raised by the respondent, and the appeal has been pressed by Mr. Tulsi as against that part which allows the presence of a lawyer when the respondent is interrogated. It has been rightly contended on behalf of the appellant that the relevant provisions, in this regard, of the FERA and the Customs Act are in pari materia and the object of the two Acts is also similar. As pointed out earlier the case of Ramanlal Bhogilal (supra) was one arising under FERA. Consequently Criminal Appeal No. 476 of 1986 has to be allowed against that part of the judgment of the Delhi High Court which dealt with the right of the respondents to have their lawyer during their interrogation. | 1[ds]7. A perusal of the facts in Nandini Satpathy v. Dani, (Supra) would clearly indicate that the decision has no application in the present cases. The matter arose out of a complaint filed by the Deputy Superintendent of Police (Vigilance) against the appellant under section 179 of the Indian Penal Code before the Sub Divisional Judicial Magistrate, Cuttack. The Magistrate took the cognizance of the offence and issued summons for appearance against the appellants. It was contended unsuccessfully that the charge was unsustainable in view of the protection under Article 20 (3) of the Constitution and the immunity under section 161 (2) of the Criminal Procedure Code. In this background the observations relied upon by Mr. Salve and Mr. Lalit were made and they cannot be treated to have in any way diluted the ratio in Romesh Chandra Mehtas case. The question whether customs officials are police officers, and whether the statements recorded by the customs authorities under section 107 and 108 of the Customs Act were inadmissible in evidence were examined in Illias v. Collector of Customs (supra) and answered in the negative by a Bench of five Judges and it is, therefore, no use referring to the observations made in the judgment in a regular criminal case initiated by thedecision in Romesh Chandra Mehta v. State of West Bengal was referred to and not dissented from. We, therefore, reject the argument of the learned counsel for the appellants founded on Article 20(3) of the Constitution. It will be further noticed that in Ramanlals case (supra) the Bench took the precaution of observing that the only protection that Article 20 (3) gives to a person accused of an offence is that he cannot be compelled to be a witness against himself, but this does not mean that he need not give information regarding matters which do not tend to incriminate him. Rejecting the prayer of the appellant for setting aside the summons, the Court directed him to appear before the Deputy Director and answer such questions as did not tend to incriminate him. It is significant to note that these observations permitting him not to answer self- incriminating questions were made only because the appellant was held to be an accused on the relevant date.We are afraid the judgment of the United States Supreme Court in Re Grabons case :0, 1 Lawyer Edition 2d 376; is of no assistance to thehave gone through the minority view in the judgment of Black, J. and are not impressed by thedo not share the apprehension as expressed above in the minority judgment in connection with enquiry and investigation under the Customs Act ad other similar statutes of our country. There is no question of whisking away the persons concerned in the cases before us for secret interrogation, and there is no reason for us to impute the motive of preparing the groundwork of false cases for securing conviction of innocent persons, to the officers of the state duly engaged in performing their duty of prevention and detection of economic crimes and recovering misappropriate money justly belonging to theJudge was fair enough to discuss the other point of view espoused by the great jurists of both sides of Atlantic before expressing his opinion. In any event we are not concerned with the right of an accused in a criminal case and the decision is, therefore, not relevant at all. The facts as emerging from the judgment indicate that narcotics were thrown from a car carrying the two persons accused in the case. One of the accused persons testified at the trial and his counsel in argument to the jury made adverse comments on the failure of the other accused to go to the witness box. The first accused was acquitted and the second accused was convicted. The question of the right of silence of the accused came up for consideration in this set up. In the cases before us the persons concerned are not accused and we do not find any justification for "expanding" the right reserved by the constitution of India in favour of accused persons to be enjoyed by others.11. We do not find any force in the arguments of Mr. Salve and Mr. Lalit that if a person is called away from his own house and questioned in the atmosphere of the customs office without the assistance of his lawyer or his friends his constitutional right under Article 21 is violated. The argument proceeds thus : if the person who is used to certain comforts and convenience is asked to come by himself to the Department for answering question it amounts to mental torture. We are unable to agree. It is true that large majority of persons connected with illegal trade and evasion of taxes and duties are in a position to afford luxuries on lavish scale of which an honest ordinary citizen of this country cannot dream of and they are surrounded by persons similarly involved either directly or indirectly in such pursuits. But that cannot be a ground for holding that he has a constitutional right to claim similar luxuries and company of his choice. Mr. Salve was fair enough not to pursue his argument with reference to the comfort part, but continued to maintain that the appellant is entitled to the company of his choice during the questioning. The purpose of the enquiry under the Customs Act and the other similar statutes will be completely frustrated if the whims of the persons in possession of useful information for the departments are allowed to prevail. For achieving the object of such an enquiry if the appropriate authorities be of the view that such persons should be dissociated from the atmosphere and the company of persons who provide encouragement to them in adopting a non-cooperative attitude to the machineries of law, there cannot be any legitimate objection in depriving them of such company. The relevant provisions of the Constitution in this regard have to be construed in the spirit they were made and the benefits thereunder should not be "expanded" to favour exploiters engaged in tax evasion at the cost of public exchequer. Applying the `just, fair and reasonable test we hold that there in no merit in the stand of appellant before us.The judgment under challenge in Criminal Appeal No. 476 of 1986 deals with several questions raised by the respondent, and the appeal has been pressed by Mr. Tulsi as against that part which allows the presence of a lawyer when the respondent is interrogated. It has been rightly contended on behalf of the appellant that the relevant provisions, in this regard, of the FERA and the Customs Act are in pari materia and the object of the two Acts is also similar. As pointed out earlier the case of Ramanlal Bhogilal (supra) was one arising under FERA. Consequently Criminal Appeal No. 476 of 1986 has to be allowed against that part of the judgment of the Delhi High Court which dealt with the right of the respondents to have their lawyer during their interrogation. | 1 | 3,948 | 1,266 | ### 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:
invisible exercise of power by government officials, would be unconstitutional. We do not share the apprehension as expressed above in the minority judgment in connection with enquiry and investigation under the Customs Act ad other similar statutes of our country. There is no question of whisking away the persons concerned in the cases before us for secret interrogation, and there is no reason for us to impute the motive of preparing the groundwork of false cases for securing conviction of innocent persons, to the officers of the state duly engaged in performing their duty of prevention and detection of economic crimes and recovering misappropriate money justly belonging to the public. Reference was also made to the observation in the judgment in Carlos Garza De Luna, Appt. v. United States, 1 American Law Reports 3d 969; setting out the historical background of the right of silence of an accused in a criminal case. Mr. Salve has relied upon the opinion of Wisdom, Circuit Judge, that the history of the development of the right of silence is a history of accretions, not of an avulsion and the line of growth in the course of time discloses the expanding conception of the right than is restricted application. The Judge was fair enough to discuss the other point of view espoused by the great jurists of both sides of Atlantic before expressing his opinion. In any event we are not concerned with the right of an accused in a criminal case and the decision is, therefore, not relevant at all. The facts as emerging from the judgment indicate that narcotics were thrown from a car carrying the two persons accused in the case. One of the accused persons testified at the trial and his counsel in argument to the jury made adverse comments on the failure of the other accused to go to the witness box. The first accused was acquitted and the second accused was convicted. The question of the right of silence of the accused came up for consideration in this set up. In the cases before us the persons concerned are not accused and we do not find any justification for "expanding" the right reserved by the constitution of India in favour of accused persons to be enjoyed by others.11. We do not find any force in the arguments of Mr. Salve and Mr. Lalit that if a person is called away from his own house and questioned in the atmosphere of the customs office without the assistance of his lawyer or his friends his constitutional right under Article 21 is violated. The argument proceeds thus : if the person who is used to certain comforts and convenience is asked to come by himself to the Department for answering question it amounts to mental torture. We are unable to agree. It is true that large majority of persons connected with illegal trade and evasion of taxes and duties are in a position to afford luxuries on lavish scale of which an honest ordinary citizen of this country cannot dream of and they are surrounded by persons similarly involved either directly or indirectly in such pursuits. But that cannot be a ground for holding that he has a constitutional right to claim similar luxuries and company of his choice. Mr. Salve was fair enough not to pursue his argument with reference to the comfort part, but continued to maintain that the appellant is entitled to the company of his choice during the questioning. The purpose of the enquiry under the Customs Act and the other similar statutes will be completely frustrated if the whims of the persons in possession of useful information for the departments are allowed to prevail. For achieving the object of such an enquiry if the appropriate authorities be of the view that such persons should be dissociated from the atmosphere and the company of persons who provide encouragement to them in adopting a non-cooperative attitude to the machineries of law, there cannot be any legitimate objection in depriving them of such company. The relevant provisions of the Constitution in this regard have to be construed in the spirit they were made and the benefits thereunder should not be "expanded" to favour exploiters engaged in tax evasion at the cost of public exchequer. Applying the `just, fair and reasonable test we hold that there in no merit in the stand of appellant before us. 12. Both Mr. Lalit, the learned counsel in Writ Petition (Crl.) No 717 of 1991 and the learned counsel for the respondent in Criminal Appeal No. 476 of 1986 (arising out of a FERA case) reiterated the stand that the parties represented by them respectively should be treated to be in identical position as an accused and consequently should be allowed the protection under clause (3) of Article 20. In view of the judgments of this Court and the discussion as mentioned earlier, the argument cannot be accepted. Mr. Tulsi, the learned Additional Solicitor General, was right in pointing out the distinction between an accused in a criminal case and a person called for interrogation under the present Acts as discussed at page 466 in Romesh Chandra Mehtas case (supra). 13. The judgment under challenge in Criminal Appeal No. 476 of 1986 deals with several questions raised by the respondent, and the appeal has been pressed by Mr. Tulsi as against that part which allows the presence of a lawyer when the respondent is interrogated. It has been rightly contended on behalf of the appellant that the relevant provisions, in this regard, of the FERA and the Customs Act are in pari materia and the object of the two Acts is also similar. As pointed out earlier the case of Ramanlal Bhogilal (supra) was one arising under FERA. Consequently Criminal Appeal No. 476 of 1986 has to be allowed against that part of the judgment of the Delhi High Court which dealt with the right of the respondents to have their lawyer during their interrogation.
### Response:
1
### Explanation:
(supra) and answered in the negative by a Bench of five Judges and it is, therefore, no use referring to the observations made in the judgment in a regular criminal case initiated by thedecision in Romesh Chandra Mehta v. State of West Bengal was referred to and not dissented from. We, therefore, reject the argument of the learned counsel for the appellants founded on Article 20(3) of the Constitution. It will be further noticed that in Ramanlals case (supra) the Bench took the precaution of observing that the only protection that Article 20 (3) gives to a person accused of an offence is that he cannot be compelled to be a witness against himself, but this does not mean that he need not give information regarding matters which do not tend to incriminate him. Rejecting the prayer of the appellant for setting aside the summons, the Court directed him to appear before the Deputy Director and answer such questions as did not tend to incriminate him. It is significant to note that these observations permitting him not to answer self- incriminating questions were made only because the appellant was held to be an accused on the relevant date.We are afraid the judgment of the United States Supreme Court in Re Grabons case :0, 1 Lawyer Edition 2d 376; is of no assistance to thehave gone through the minority view in the judgment of Black, J. and are not impressed by thedo not share the apprehension as expressed above in the minority judgment in connection with enquiry and investigation under the Customs Act ad other similar statutes of our country. There is no question of whisking away the persons concerned in the cases before us for secret interrogation, and there is no reason for us to impute the motive of preparing the groundwork of false cases for securing conviction of innocent persons, to the officers of the state duly engaged in performing their duty of prevention and detection of economic crimes and recovering misappropriate money justly belonging to theJudge was fair enough to discuss the other point of view espoused by the great jurists of both sides of Atlantic before expressing his opinion. In any event we are not concerned with the right of an accused in a criminal case and the decision is, therefore, not relevant at all. The facts as emerging from the judgment indicate that narcotics were thrown from a car carrying the two persons accused in the case. One of the accused persons testified at the trial and his counsel in argument to the jury made adverse comments on the failure of the other accused to go to the witness box. The first accused was acquitted and the second accused was convicted. The question of the right of silence of the accused came up for consideration in this set up. In the cases before us the persons concerned are not accused and we do not find any justification for "expanding" the right reserved by the constitution of India in favour of accused persons to be enjoyed by others.11. We do not find any force in the arguments of Mr. Salve and Mr. Lalit that if a person is called away from his own house and questioned in the atmosphere of the customs office without the assistance of his lawyer or his friends his constitutional right under Article 21 is violated. The argument proceeds thus : if the person who is used to certain comforts and convenience is asked to come by himself to the Department for answering question it amounts to mental torture. We are unable to agree. It is true that large majority of persons connected with illegal trade and evasion of taxes and duties are in a position to afford luxuries on lavish scale of which an honest ordinary citizen of this country cannot dream of and they are surrounded by persons similarly involved either directly or indirectly in such pursuits. But that cannot be a ground for holding that he has a constitutional right to claim similar luxuries and company of his choice. Mr. Salve was fair enough not to pursue his argument with reference to the comfort part, but continued to maintain that the appellant is entitled to the company of his choice during the questioning. The purpose of the enquiry under the Customs Act and the other similar statutes will be completely frustrated if the whims of the persons in possession of useful information for the departments are allowed to prevail. For achieving the object of such an enquiry if the appropriate authorities be of the view that such persons should be dissociated from the atmosphere and the company of persons who provide encouragement to them in adopting a non-cooperative attitude to the machineries of law, there cannot be any legitimate objection in depriving them of such company. The relevant provisions of the Constitution in this regard have to be construed in the spirit they were made and the benefits thereunder should not be "expanded" to favour exploiters engaged in tax evasion at the cost of public exchequer. Applying the `just, fair and reasonable test we hold that there in no merit in the stand of appellant before us.The judgment under challenge in Criminal Appeal No. 476 of 1986 deals with several questions raised by the respondent, and the appeal has been pressed by Mr. Tulsi as against that part which allows the presence of a lawyer when the respondent is interrogated. It has been rightly contended on behalf of the appellant that the relevant provisions, in this regard, of the FERA and the Customs Act are in pari materia and the object of the two Acts is also similar. As pointed out earlier the case of Ramanlal Bhogilal (supra) was one arising under FERA. Consequently Criminal Appeal No. 476 of 1986 has to be allowed against that part of the judgment of the Delhi High Court which dealt with the right of the respondents to have their lawyer during their interrogation.
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BANK OF BARODA & ANR Vs. M/S PARASAADILAL TURSIRAM SHEETGRAH PVT. LTD. & ORS | facilities for which the Directors of the Company gave personal guarantees along with an equitable mortgage of immovable property. As the Company defaulted in repayment of the loan, the Bank issued notice under Section 13(2) of the Act demanding an amount of Rs. 2,34,15,456/- from the Company and its Directors. For non-payment, a notice under Section 13(4) of the Act demanding actual physical possession was also issued. It is the case of the Bank that the actual physical possession of the secured asset was obtained by its authorized officers on 30.08.2010. 4. The Company along with one of its Directors filed a Civil Writ Petition No. 56410/2010 challenging the issuance of the notices under Sections 13(2) and 13(4) of the Act and sought a writ of mandamus restraining the Bank from taking any coercive action for the recovery of the amount. The Writ Petition was disposed of with the only direction that the entire dues will be paid back in four equal installments, and if the Company fails to pay up the dues within the time prescribed, the Bank shall be at liberty to proceed in accordance with law. 5. As the Company and its Directors failed to comply with the schedule as determined by the High Court, the Bank proceeded further and issued a sale proclamation which culminated in Respondent No. 7 being declared the successful bidder. A sale certificate was also issued in his favour. 6. The present proceedings commence with a challenge to the above referred sale certificate in an application under Section 17 of the Act by the Respondent Company and the Directors. It is important to mention at this stage that, the application under Section 17 was filed by the Company, its three Directors, being Sri Vinod Kumar, Smt. Gayatri Devi and Sri Rameshwar Prasad. The other Director Sri Rakesh Sharma, who expired on 18.09.2012 was represented by his legal representatives. 7. After hearing the Company, its Directors and the legal representatives of the deceased Director, the DRT dismissed the Section 17 application on the ground that it was filed beyond the statutory period of limitation of 45 days. According to Section 17(1), the period of 45 days is mandated to commence from the date on which a measure under Section 13(4) has been adopted, which in the facts of the present case is the date when the secured asset is sold in favour of Respondent No.7. 8. The above referred order was challenged in review. The DRT by its order dated 08.08.2016 allowed the review on the ground that Sri Rakesh Sharma had expired before the auction had taken place and that his legal representatives were not issued notice. It is rather strange that the DRT not only entertained the Review Petition, but has allowed the same on the aforesaid ground. 9. The order in review was challenged before the DRAT, which found no difficulty in allowing the appeal on the ground that there has never been an error apparent on the face of record for exercising the review jurisdiction. It is this order of DRAT that was challenged before the High Court in the Writ Petition filed by the Company, its Directors and also the legal representatives of the deceased Director. This very same ground was raised, that one of the Directors had expired and that his legal representatives were not given notice before the secured asset was brought to sale. 10. On the above referred question, the High Court admitted the Writ Petition and proceeded to grant the following interim order, which is the order impugned before us. In the aforesaid circumstances, it is provided that till further orders of this Court, the operation and implementation of the appellate order dated 02.12.2016 passed in Appeal No.210 of 2016 shall remain stayed and the Debts Recovery Tribunal shall proceed with the Securitization Application. 11. We are only concerned with the limited question as to whether the High Court was justified in passing the interim order as extracted herein above. This is a case where the Company, with its own independent identity, is contesting the proceedings. It is apparent that the Directors were also contesting the matter by filing the Section 17 application. Even the legal representatives of one of the deceased Directors were party to the application under Section 17. Further, DRAT came to the conclusion that the original order passed by the DRT has been arrived at after a detailed consideration and that there is no justifiable ground for invoking the review jurisdiction. For granting or refusing to grant an interim order, the above referred facts were more than sufficient. 12. The reason for providing a time limit of 45 days for filing an application under Section 17 can easily be inferred from the purpose and object of the enactment. In Transcore v. Union of India and Anr. (2008) 1 SCC 125 this Court held that the SARFAESI Act is enacted for quick enforcement of the security. It is unfortunate that proceedings where a property that has been brought to sale and third-party rights created under the provisions of the Act, have remained inconclusive even after a decade. 13. Though the Special Leave Petition was pending in this Court since the last five years, this Court at the stage of admission had granted a stay of the impugned order, the consequence of which would be that the High Courts interim order has not come into operation. The effect of the interim order passed by this Court is that the order of DRT upholding the dismissal of the application under Section 17 dated 26.11.2015 would continue to operate. 14. For the reasons stated above, we are of the opinion that the High Court was not justified in staying the operation of the order of the DRAT which came to the conclusion that there was no error apparent on the face of record for the DRT to invoke the review jurisdiction and recall its order dismissing the application under Section 17 of the Act. | 1[ds]This is a case where the Company, with its own independent identity, is contesting the proceedings. It is apparent that the Directors were also contesting the matter by filing the Section 17 application. Even the legal representatives of one of the deceased Directors were party to the application under Section 17. Further, DRAT came to the conclusion that the original order passed by the DRT has been arrived at after a detailed consideration and that there is no justifiable ground for invoking the review jurisdiction. For granting or refusing to grant an interim order, the above referred facts were more than sufficient.12. The reason for providing a time limit of 45 days for filing an application under Section 17 can easily be inferred from the purpose and object of the enactment. In Transcore v. Union of India and Anr. (2008) 1 SCC 125 this Court held that the SARFAESI Act is enacted for quick enforcement of the security. It is unfortunate that proceedings where a property that has been brought to sale and third-party rights created under the provisions of the Act, have remained inconclusive even after a decade.13. Though the Special Leave Petition was pending in this Court since the last five years, this Court at the stage of admission had granted a stay of the impugned order, the consequence of which would be that the High Courts interim order has not come into operation. The effect of the interim order passed by this Court is that the order of DRT upholding the dismissal of the application under Section 17 dated 26.11.2015 would continue to operate.14. For the reasons stated above, we are of the opinion that the High Court was not justified in staying the operation of the order of the DRAT which came to the conclusion that there was no error apparent on the face of record for the DRT to invoke the review jurisdiction and recall its order dismissing the application under Section 17 of the Act. | 1 | 1,280 | 357 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
### Input:
facilities for which the Directors of the Company gave personal guarantees along with an equitable mortgage of immovable property. As the Company defaulted in repayment of the loan, the Bank issued notice under Section 13(2) of the Act demanding an amount of Rs. 2,34,15,456/- from the Company and its Directors. For non-payment, a notice under Section 13(4) of the Act demanding actual physical possession was also issued. It is the case of the Bank that the actual physical possession of the secured asset was obtained by its authorized officers on 30.08.2010. 4. The Company along with one of its Directors filed a Civil Writ Petition No. 56410/2010 challenging the issuance of the notices under Sections 13(2) and 13(4) of the Act and sought a writ of mandamus restraining the Bank from taking any coercive action for the recovery of the amount. The Writ Petition was disposed of with the only direction that the entire dues will be paid back in four equal installments, and if the Company fails to pay up the dues within the time prescribed, the Bank shall be at liberty to proceed in accordance with law. 5. As the Company and its Directors failed to comply with the schedule as determined by the High Court, the Bank proceeded further and issued a sale proclamation which culminated in Respondent No. 7 being declared the successful bidder. A sale certificate was also issued in his favour. 6. The present proceedings commence with a challenge to the above referred sale certificate in an application under Section 17 of the Act by the Respondent Company and the Directors. It is important to mention at this stage that, the application under Section 17 was filed by the Company, its three Directors, being Sri Vinod Kumar, Smt. Gayatri Devi and Sri Rameshwar Prasad. The other Director Sri Rakesh Sharma, who expired on 18.09.2012 was represented by his legal representatives. 7. After hearing the Company, its Directors and the legal representatives of the deceased Director, the DRT dismissed the Section 17 application on the ground that it was filed beyond the statutory period of limitation of 45 days. According to Section 17(1), the period of 45 days is mandated to commence from the date on which a measure under Section 13(4) has been adopted, which in the facts of the present case is the date when the secured asset is sold in favour of Respondent No.7. 8. The above referred order was challenged in review. The DRT by its order dated 08.08.2016 allowed the review on the ground that Sri Rakesh Sharma had expired before the auction had taken place and that his legal representatives were not issued notice. It is rather strange that the DRT not only entertained the Review Petition, but has allowed the same on the aforesaid ground. 9. The order in review was challenged before the DRAT, which found no difficulty in allowing the appeal on the ground that there has never been an error apparent on the face of record for exercising the review jurisdiction. It is this order of DRAT that was challenged before the High Court in the Writ Petition filed by the Company, its Directors and also the legal representatives of the deceased Director. This very same ground was raised, that one of the Directors had expired and that his legal representatives were not given notice before the secured asset was brought to sale. 10. On the above referred question, the High Court admitted the Writ Petition and proceeded to grant the following interim order, which is the order impugned before us. In the aforesaid circumstances, it is provided that till further orders of this Court, the operation and implementation of the appellate order dated 02.12.2016 passed in Appeal No.210 of 2016 shall remain stayed and the Debts Recovery Tribunal shall proceed with the Securitization Application. 11. We are only concerned with the limited question as to whether the High Court was justified in passing the interim order as extracted herein above. This is a case where the Company, with its own independent identity, is contesting the proceedings. It is apparent that the Directors were also contesting the matter by filing the Section 17 application. Even the legal representatives of one of the deceased Directors were party to the application under Section 17. Further, DRAT came to the conclusion that the original order passed by the DRT has been arrived at after a detailed consideration and that there is no justifiable ground for invoking the review jurisdiction. For granting or refusing to grant an interim order, the above referred facts were more than sufficient. 12. The reason for providing a time limit of 45 days for filing an application under Section 17 can easily be inferred from the purpose and object of the enactment. In Transcore v. Union of India and Anr. (2008) 1 SCC 125 this Court held that the SARFAESI Act is enacted for quick enforcement of the security. It is unfortunate that proceedings where a property that has been brought to sale and third-party rights created under the provisions of the Act, have remained inconclusive even after a decade. 13. Though the Special Leave Petition was pending in this Court since the last five years, this Court at the stage of admission had granted a stay of the impugned order, the consequence of which would be that the High Courts interim order has not come into operation. The effect of the interim order passed by this Court is that the order of DRT upholding the dismissal of the application under Section 17 dated 26.11.2015 would continue to operate. 14. For the reasons stated above, we are of the opinion that the High Court was not justified in staying the operation of the order of the DRAT which came to the conclusion that there was no error apparent on the face of record for the DRT to invoke the review jurisdiction and recall its order dismissing the application under Section 17 of the Act.
### Response:
1
### Explanation:
This is a case where the Company, with its own independent identity, is contesting the proceedings. It is apparent that the Directors were also contesting the matter by filing the Section 17 application. Even the legal representatives of one of the deceased Directors were party to the application under Section 17. Further, DRAT came to the conclusion that the original order passed by the DRT has been arrived at after a detailed consideration and that there is no justifiable ground for invoking the review jurisdiction. For granting or refusing to grant an interim order, the above referred facts were more than sufficient.12. The reason for providing a time limit of 45 days for filing an application under Section 17 can easily be inferred from the purpose and object of the enactment. In Transcore v. Union of India and Anr. (2008) 1 SCC 125 this Court held that the SARFAESI Act is enacted for quick enforcement of the security. It is unfortunate that proceedings where a property that has been brought to sale and third-party rights created under the provisions of the Act, have remained inconclusive even after a decade.13. Though the Special Leave Petition was pending in this Court since the last five years, this Court at the stage of admission had granted a stay of the impugned order, the consequence of which would be that the High Courts interim order has not come into operation. The effect of the interim order passed by this Court is that the order of DRT upholding the dismissal of the application under Section 17 dated 26.11.2015 would continue to operate.14. For the reasons stated above, we are of the opinion that the High Court was not justified in staying the operation of the order of the DRAT which came to the conclusion that there was no error apparent on the face of record for the DRT to invoke the review jurisdiction and recall its order dismissing the application under Section 17 of the Act.
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BHARAT K. GUPTA Vs. ARUN KUMAR AND ANOTHER | 1. Leave granted. Heard the learned counsel for the parties. 2. The proceeding arising out of a complaint filed by the appellant u/s 138 of the Negotiable Instruments Act (the Act for short) against Respondent 1 has been quashed by the High Court solely on the ground that in his order dated 28-2-1995 passed in compliance with Section 251 of the CrPC the Magistrate has not recorded that the petitioner (the respondent before us) alone was responsible to or in charge of the firm for conduct of the business so as to attract the provisions of Section 141 of the Act. 3. The above order of the High Court is patently wrong: firstly, because, while complying with Section 251 of the CrPC the Magistrate is required to incorporate the substance of accusation and not the derails as appearing in the complaint; secondly, because, liability u/s 141 of the Act is not limited to that of a single director of a company or a single partner of a firm; and, thirdly, because, in the complaint there is a specific averment that Respondent 1 runs the business of their firm named and styled as M/s. Arun Oil Industries. | 1[ds]3. The above order of the High Court is patently wrong: firstly, because, while complying with Section 251 of the CrPC the Magistrate is required to incorporate the substance of accusation and not the derails as appearing in the complaint; secondly, because, liability u/s 141 of the Act is not limited to that of a single director of a company or a single partner of a firm; and, thirdly, because, in the complaint there is a specific averment that Respondent 1 runs the business of their firm named and styled as M/s. Arun Oil Industries. | 1 | 218 | 112 | ### 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:
1. Leave granted. Heard the learned counsel for the parties. 2. The proceeding arising out of a complaint filed by the appellant u/s 138 of the Negotiable Instruments Act (the Act for short) against Respondent 1 has been quashed by the High Court solely on the ground that in his order dated 28-2-1995 passed in compliance with Section 251 of the CrPC the Magistrate has not recorded that the petitioner (the respondent before us) alone was responsible to or in charge of the firm for conduct of the business so as to attract the provisions of Section 141 of the Act. 3. The above order of the High Court is patently wrong: firstly, because, while complying with Section 251 of the CrPC the Magistrate is required to incorporate the substance of accusation and not the derails as appearing in the complaint; secondly, because, liability u/s 141 of the Act is not limited to that of a single director of a company or a single partner of a firm; and, thirdly, because, in the complaint there is a specific averment that Respondent 1 runs the business of their firm named and styled as M/s. Arun Oil Industries.
### Response:
1
### Explanation:
3. The above order of the High Court is patently wrong: firstly, because, while complying with Section 251 of the CrPC the Magistrate is required to incorporate the substance of accusation and not the derails as appearing in the complaint; secondly, because, liability u/s 141 of the Act is not limited to that of a single director of a company or a single partner of a firm; and, thirdly, because, in the complaint there is a specific averment that Respondent 1 runs the business of their firm named and styled as M/s. Arun Oil Industries.
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M/S. Lokenath Tolaram Etc Vs. B. N. Rangwani & Ors | May, 1965, 5 May, 1966 and 22 April, 1970 in lieu thereof amount aggregating Rs. 99,000 and executed bonds of the value of Rs. 1,80,000. 16. In Civil Appeal No. 1109 of 1971 the Excise Authorities seized 477 and 91 aggregating 568 bales of cotton fabrics of the appellants on 16 March, 1963. The Excise Authorities also seized books of accounts and documents of the appellants. The appellants on 10 May, 1968 made an application under Article 226 of the Constitution in the High Court of Bombay. The appellants asked for a writ of mandamus directing the release of the goods and the books of accounts. The High Court did not accede to the request of the appellants. 17. The two contentions of the appellants in Civil Appeal No. 1109 of 1971 were that the order dated 20 September, 1963 extending the period of giving "show cause" notice was illegal on grounds similar to those in Civil Appeal No. 1133 of 1971. The respondents in Civil Appeal No. 1109 of 1971 repeated the same answers that the ruling in Malhotras case, (1971) 3 SCR 802 = (AIR 1972 SC 689 ) (supra) does not apply by reason of agreement between the appellants and the respondents embodied in similar consent order in interlocutory proceedings in the High Court. During the pendency of the proceedings in the High Court the appellants deposited with the Excise Authorities between the month of April. 1966 and the month of August 1968 Rs. 3,16,016 and executed bonds for the sum of Rs. 4,44,059. The appellants obtained release of the goods namely 568 bales. The amounts deposited were agreed between the parties to be sale proceeds of the goods and treated as goods as seized for the purpose of adjudication proceedings. 18. The Excise Authorities may under Section 110 (1) of the Act seize goods if the proper officer has reason to believe that the goods are liable to confiscation. Where goods are seized under Section 110 (1) of the Act and no notice in respect thereof is given under Section 124 (a) of the Act within six months of the seizure of the goods the goods shall be returned to the person from whose possession they were seized. Section 124 (a) of the Act states that no order confiscating any goods or imposing any penalty on any person shall be made under Chapter XIV of the Act unless the owner of the goods or such person is given a notice in writing informing him of the grounds of confiscation or imposition of penalty. Section 110 (2) of the Act contains a proviso that the period of six months may on sufficient cause being shown be extended by the Collector of Customs for a period not exceeding six months. 19. In Civil Appeals Nos. 1133 and 1109 of 1971 the order of extension on 20 September, 1963 was beyond the period of six months from the date of seizure. In Civil Appeal No. 1132 of 1971 the order was in time. Therefore, the orders for extension of time to serve the notice under Section 124 (a) of the Act could have been exposed to infirmities of limitation as to time (though we do not express any opinion upon it) and observance of principles of natural justice but for the special agreement in the consent orders between the parties in these appeals. 20. Counsel for the appellants contended that if the order dated 20 September, 1963 was not within six months of the seizure of the goods, the appellants were entitled to release of the goods.All the goods have already been released to the appellants. The release is by reason of terms of consent by and between the appellants and the Excise Authorities during the pendency of the appeals in the Bombay High Court. It was next said on behalf of the appellants that the amounts deposited represented the goods and the appellants were entitled to return of the amounts deposited. The contention of the appellants is unsound and unacceptable. The amounts of money which are now retained by the Excise Authorities represent the goods by reason of special agreement between the parties. These agreements came into existence before as well as after 20 September, 1963. After the appellants had obtained release of the goods in accordance with the terms of special agreement embodied in the consent terms, the goods went out of the province of application of S. 110 of the Act for extension of time for serving a notice. 21. There cannot be any question of violation of principles of natural justice or any lack of opportunity to the appellants to show cause in regard to the order dated 20 September, 1963 extending the time for giving the notice under Section 124 of the Act contemplated in Section 110 of the Act. The appellants themselves asked for release of the goods on depositing moneys and executing bonds representing the value of the goods released. The agreements in the present appeals establish that the parties on consideration of all the facts and circumstances waived notice for extending the time within six months of the seizure of the goods. 22. The Excise Authorities are also right in their contention that the appellants have no locus standi to ask for release of the goods because the Bank was in possession of the goods as the pledgee and the Excise Authorities seized the goods from the possession of the Bank. 23. The moneys deposited and the bonds executed by the appellants are really the substituted goods for the purpose of adjudication as to whether there can be any confiscation of goods or imposition of penalty. The parties agreed that the Excise Authorities would retain he securities for the purpose of adjudication proceedings in the event of failure of the appellants in the writ petitions filed by them. 24. The goods were seized in 1963. Long time has lapsed. The Excise Authorities should immediately take steps and complete the adjudication proceedings. | 0[ds]18. The Excise Authorities may under Section 110 (1) of the Act seize goods if the proper officer has reason to believe that the goods are liable to confiscation. Where goods are seized under Section 110 (1) of the Act and no notice in respect thereof is given under Section 124 (a) of the Act within six months of the seizure of the goods the goods shall be returned to the person from whose possession they were seized. Section 124 (a) of the Act states that no order confiscating any goods or imposing any penalty on any person shall be made under Chapter XIV of the Act unless the owner of the goods or such person is given a notice in writing informing him of the grounds of confiscation or imposition of penalty. Section 110 (2) of the Act contains a proviso that the period of six months may on sufficient cause being shown be extended by the Collector of Customs for a period not exceeding six months19. In Civil Appeals Nos. 1133 and 1109 of 1971 the order of extension on 20 September, 1963 was beyond the period of six months from the date of seizure. In Civil Appeal No. 1132 of 1971 the order was in time. Therefore, the orders for extension of time to serve the notice under Section 124 (a) of the Act could have been exposed to infirmities of limitation as to time (though we do not express any opinion upon it) and observance of principles of natural justice but for the special agreement in the consent orders between the parties in these appeals.All the goods have already been released to the appellants. The release is by reason of terms of consent by and between the appellants and the Excise Authorities during the pendency of the appeals in the Bombay High CourtThe contention of the appellants is unsound and unacceptable. The amounts of money which are now retained by the Excise Authorities represent the goods by reason of special agreement between the parties. These agreements came into existence before as well as after 20 September, 1963. After the appellants had obtained release of the goods in accordance with the terms of special agreement embodied in the consent terms, the goods went out of the province of application of S. 110 of the Act for extension of time for serving a notice21. There cannot be any question of violation of principles of natural justice or any lack of opportunity to the appellants to show cause in regard to the order dated 20 September, 1963 extending the time for giving the notice under Section 124 of the Act contemplated in Section 110 of the Act. The appellants themselves asked for release of the goods on depositing moneys and executing bonds representing the value of the goods released. The agreements in the present appeals establish that the parties on consideration of all the facts and circumstances waived notice for extending the time within six months of the seizure of the goods22. The Excise Authorities are also right in their contention that the appellants have no locus standi to ask for release of the goods because the Bank was in possession of the goods as the pledgee and the Excise Authorities seized the goods from the possession of the Bank23. The moneys deposited and the bonds executed by the appellants are really the substituted goods for the purpose of adjudication as to whether there can be any confiscation of goods or imposition of penalty. The parties agreed that the Excise Authorities would retain he securities for the purpose of adjudication proceedings in the event of failure of the appellants in the writ petitions filed by them24. The goods were seized in 1963. Long time has lapsed. The Excise Authorities should immediately take steps and complete the adjudication proceedings. | 0 | 2,967 | 686 | ### 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:
May, 1965, 5 May, 1966 and 22 April, 1970 in lieu thereof amount aggregating Rs. 99,000 and executed bonds of the value of Rs. 1,80,000. 16. In Civil Appeal No. 1109 of 1971 the Excise Authorities seized 477 and 91 aggregating 568 bales of cotton fabrics of the appellants on 16 March, 1963. The Excise Authorities also seized books of accounts and documents of the appellants. The appellants on 10 May, 1968 made an application under Article 226 of the Constitution in the High Court of Bombay. The appellants asked for a writ of mandamus directing the release of the goods and the books of accounts. The High Court did not accede to the request of the appellants. 17. The two contentions of the appellants in Civil Appeal No. 1109 of 1971 were that the order dated 20 September, 1963 extending the period of giving "show cause" notice was illegal on grounds similar to those in Civil Appeal No. 1133 of 1971. The respondents in Civil Appeal No. 1109 of 1971 repeated the same answers that the ruling in Malhotras case, (1971) 3 SCR 802 = (AIR 1972 SC 689 ) (supra) does not apply by reason of agreement between the appellants and the respondents embodied in similar consent order in interlocutory proceedings in the High Court. During the pendency of the proceedings in the High Court the appellants deposited with the Excise Authorities between the month of April. 1966 and the month of August 1968 Rs. 3,16,016 and executed bonds for the sum of Rs. 4,44,059. The appellants obtained release of the goods namely 568 bales. The amounts deposited were agreed between the parties to be sale proceeds of the goods and treated as goods as seized for the purpose of adjudication proceedings. 18. The Excise Authorities may under Section 110 (1) of the Act seize goods if the proper officer has reason to believe that the goods are liable to confiscation. Where goods are seized under Section 110 (1) of the Act and no notice in respect thereof is given under Section 124 (a) of the Act within six months of the seizure of the goods the goods shall be returned to the person from whose possession they were seized. Section 124 (a) of the Act states that no order confiscating any goods or imposing any penalty on any person shall be made under Chapter XIV of the Act unless the owner of the goods or such person is given a notice in writing informing him of the grounds of confiscation or imposition of penalty. Section 110 (2) of the Act contains a proviso that the period of six months may on sufficient cause being shown be extended by the Collector of Customs for a period not exceeding six months. 19. In Civil Appeals Nos. 1133 and 1109 of 1971 the order of extension on 20 September, 1963 was beyond the period of six months from the date of seizure. In Civil Appeal No. 1132 of 1971 the order was in time. Therefore, the orders for extension of time to serve the notice under Section 124 (a) of the Act could have been exposed to infirmities of limitation as to time (though we do not express any opinion upon it) and observance of principles of natural justice but for the special agreement in the consent orders between the parties in these appeals. 20. Counsel for the appellants contended that if the order dated 20 September, 1963 was not within six months of the seizure of the goods, the appellants were entitled to release of the goods.All the goods have already been released to the appellants. The release is by reason of terms of consent by and between the appellants and the Excise Authorities during the pendency of the appeals in the Bombay High Court. It was next said on behalf of the appellants that the amounts deposited represented the goods and the appellants were entitled to return of the amounts deposited. The contention of the appellants is unsound and unacceptable. The amounts of money which are now retained by the Excise Authorities represent the goods by reason of special agreement between the parties. These agreements came into existence before as well as after 20 September, 1963. After the appellants had obtained release of the goods in accordance with the terms of special agreement embodied in the consent terms, the goods went out of the province of application of S. 110 of the Act for extension of time for serving a notice. 21. There cannot be any question of violation of principles of natural justice or any lack of opportunity to the appellants to show cause in regard to the order dated 20 September, 1963 extending the time for giving the notice under Section 124 of the Act contemplated in Section 110 of the Act. The appellants themselves asked for release of the goods on depositing moneys and executing bonds representing the value of the goods released. The agreements in the present appeals establish that the parties on consideration of all the facts and circumstances waived notice for extending the time within six months of the seizure of the goods. 22. The Excise Authorities are also right in their contention that the appellants have no locus standi to ask for release of the goods because the Bank was in possession of the goods as the pledgee and the Excise Authorities seized the goods from the possession of the Bank. 23. The moneys deposited and the bonds executed by the appellants are really the substituted goods for the purpose of adjudication as to whether there can be any confiscation of goods or imposition of penalty. The parties agreed that the Excise Authorities would retain he securities for the purpose of adjudication proceedings in the event of failure of the appellants in the writ petitions filed by them. 24. The goods were seized in 1963. Long time has lapsed. The Excise Authorities should immediately take steps and complete the adjudication proceedings.
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0
### Explanation:
18. The Excise Authorities may under Section 110 (1) of the Act seize goods if the proper officer has reason to believe that the goods are liable to confiscation. Where goods are seized under Section 110 (1) of the Act and no notice in respect thereof is given under Section 124 (a) of the Act within six months of the seizure of the goods the goods shall be returned to the person from whose possession they were seized. Section 124 (a) of the Act states that no order confiscating any goods or imposing any penalty on any person shall be made under Chapter XIV of the Act unless the owner of the goods or such person is given a notice in writing informing him of the grounds of confiscation or imposition of penalty. Section 110 (2) of the Act contains a proviso that the period of six months may on sufficient cause being shown be extended by the Collector of Customs for a period not exceeding six months19. In Civil Appeals Nos. 1133 and 1109 of 1971 the order of extension on 20 September, 1963 was beyond the period of six months from the date of seizure. In Civil Appeal No. 1132 of 1971 the order was in time. Therefore, the orders for extension of time to serve the notice under Section 124 (a) of the Act could have been exposed to infirmities of limitation as to time (though we do not express any opinion upon it) and observance of principles of natural justice but for the special agreement in the consent orders between the parties in these appeals.All the goods have already been released to the appellants. The release is by reason of terms of consent by and between the appellants and the Excise Authorities during the pendency of the appeals in the Bombay High CourtThe contention of the appellants is unsound and unacceptable. The amounts of money which are now retained by the Excise Authorities represent the goods by reason of special agreement between the parties. These agreements came into existence before as well as after 20 September, 1963. After the appellants had obtained release of the goods in accordance with the terms of special agreement embodied in the consent terms, the goods went out of the province of application of S. 110 of the Act for extension of time for serving a notice21. There cannot be any question of violation of principles of natural justice or any lack of opportunity to the appellants to show cause in regard to the order dated 20 September, 1963 extending the time for giving the notice under Section 124 of the Act contemplated in Section 110 of the Act. The appellants themselves asked for release of the goods on depositing moneys and executing bonds representing the value of the goods released. The agreements in the present appeals establish that the parties on consideration of all the facts and circumstances waived notice for extending the time within six months of the seizure of the goods22. The Excise Authorities are also right in their contention that the appellants have no locus standi to ask for release of the goods because the Bank was in possession of the goods as the pledgee and the Excise Authorities seized the goods from the possession of the Bank23. The moneys deposited and the bonds executed by the appellants are really the substituted goods for the purpose of adjudication as to whether there can be any confiscation of goods or imposition of penalty. The parties agreed that the Excise Authorities would retain he securities for the purpose of adjudication proceedings in the event of failure of the appellants in the writ petitions filed by them24. The goods were seized in 1963. Long time has lapsed. The Excise Authorities should immediately take steps and complete the adjudication proceedings.
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Municipal Corpn. Of Greater Mumbai Vs. Kamla Mills Ltd | any of the following] cases the Court may, upon an application made to it for that purpose, or in any suit or proceedings, fix the standard rent at such amount as, having regard to the provisions of this Act and circumstances of the case, the Court deems just -(a) where any premises are first let after the first day of September, 1940 and the rent at which they are so let is in the opinion of the Court excessive; or(b) where the Court is satisfied that there is not sufficient evidence to ascertain the rent at which the premises were let in any one of the cases mentioned in [paragraph (i) to (iii) of sub-clause (b) of clause (10)] of section 5; or(c) where by reason of the premises having been let at one time as a whole or in parts and at another time in parts or as a whole, or for any other reason, any difficulty arises in giving effect to this Part; or(d) where any premises have been or are let rent free or at a nominal rent or for some consideration in addition to rent; or(d-1) without prejudice to the provisions of sub-section (A) of Section 4 and paragraph (iii-a) of sub-clause (b) of clause (10) of Section 5, where the Court is satisfied that the rent in respect of the premises referred to therein exceeds the limit of standard rent laid down in the said paragraph (iii-a); or](e) where there is any dispute between the landlord and the tenant regarding the amount of standard rent." "Section - 11(2) - If there is any dispute between the landlord and the tenant regarding the amount of standard rent." 34. Section 11 read with Section 5 (10) (b) of the Bombay Municipal Act, 1947 makes it clear that where premises were let before, on or after the first September, 1940 the first letting rate shall be the standard rent subject to the provisions of Section 11.35. In the present case, as to whether the premises in question were let before first September, 1940, or thereafter, and, if so, what was the first letting rate, is not ascertainable from the record. In the circumstances, Shri Singhvi submits that the other alternative method of finding out the standard rent is "contractors method" which has been judicially approved. Under this method the market value of the land has to be ascertained and reasonable return fixed thereupon to determine the standard rent. This is precisely what was done by the assessor and Collector by taking the market value Rs. 3,000/- per sq. mtr. as a fair value with a reasonable return of 12% thereupon. In fact, even the respondent suggested only Rs. 2500/- per sq.mtr. as the fair market value and did not raise any dispute with regard to the fair return. The Bombay High Court in Harilal Parekh vs. Jain Coop. Housing Society [AIR 1957 Bom. 207 ] and Saipansaheb Wd. Dawoodsaheb vs. Laxman Venkatesh Naik [57 BLR 413], pointed out that under Section 5 (10) (b) (1) the first letting on first September, 1940 becomes the standard rent subject to the provision of Section 11 of the Act and, when the occasion arises, the Court has the jurisdiction to re-determine it under Section 5 (10) (b) (1), where the case falls under Section 11(1)(e) of the Bombay Rent Act. It was also pointed in Harilal Parekh (supra) that the premises were first let after first September, 1940 and the rent shall be equivalent to 6% on the valuation of land and 8.2/3% on the valuation of building.36. It is true that Section 11 of the Rent Act provides that even standard rent can be altered and re-fixed if there is any structural alteration or change in the amenities. It is urged by Shri Singhvi that demolition of the building and increasing the building potential of the land is one such change contemplated by Section 11 (a). This contention, we are unable to accept. Section 11(a) is intended to enable the Court, upon an application in any suit or proceeding, to modify the standard rent as a result of structural alteration or change in the amenities involving further capital investment of the owner. We do not think that demolition of a building is one such contingency contemplated by Section 11(a) of the Act.37. In the result, though we accept the proposition urged by the respondent that in the facts of the present case the standard rent would be the limit of the rateable value, we find that there was no material produced on record at any stage by the respondent to show what the standard rent was either in respect of the vacant land or in respect of the land on which the building was constructed and demolished, or in respect of the building after it was constructed. We accept the contention of the appellant that the burden of proving this fact, while objecting to the rateable value fixed by the Commissioner, is always on the respondent-assessee. We also accept the contention of the appellant that the respondent was less than fair to the appellant in not disclosing that its property had been occupied by National Stock Exchange of India Ltd. and National Security Depository Ltd. and in not disclosing the amounts paid by them. The respondent ought to have disclosed the fact, fairly and fully, and urged the legal contentions open to it based thereupon. These facts would have justified our allowing the appeal fully and restoring the assessment orders made by the appellant officers. However, we are not inclined to do so for the reason that the attention of the parties has not been focused on the core issue, as a result of which, perhaps, there was failure to produce relevant material before the assessor to show what was the standard rent. The interests of justice would require that the issue be reconsidered after giving an opportunity to the respondent to discharge the burden placed upon it under law. | 1[ds]In our view, the argument is untenable. What we are required to consider is what would a hypothetical tenant be willing to offer as reasonable rent for the premises in question. Upon the premises being offered to be let, there would be a hypothetical tenant; that hypothetical tenant would look at the restrictions applicable under the rent legislation and make a reasonable offer. Section 6 inof the Mumbai Rent Act, therefore, is hardly of relevance. We may examine the question from another angle. It surely cannot be contended that no rateable value can be fixed in respect of the premises occupied by the owner himself. In fact, Section 154(1) of Mumbai Municipal Corporation Act would apply equally to such premises. Even in such a situation, the rateable value has to be ascertained on the basis of what a hypothetical tenant would offer for it as reasonable rent. If Mr.t that Section 6(1) of the Mumbai Rent Act makes the provisions ofe to such premises is accepted, then no taxes would be payable by any owner for. We, therefore, reject thisour view, the contention is unsustainable. No doubt the Bombay Municipal Corporation Act is a legislation for fixing of the rateable value and imposing of property tax, but it nowhere defines what ‘rateable, except in general terms under Section 154(1). If the statute had defined ‘rateablen specific terms, the argument may have been sustainable, as sustained in Griha Yajmanule Samkhya and others (supra). It must be remembered that the principle of ‘standardhas not been invoked by reason of any requirement or declaration under the Municipal Corporation Act, but by reason of the fact that if the rateable value is the reasonable annual rent at which the property may be expected to be let, then we must consider what a hypothetical tenant would be willing to offer as rent for the property let. As has been pointed earlier, the concept of reasonableness would necessarily include the concept of an owner and a tenant who are both law abiding and do not indulge in ‘blackIf there is a rent restriction legislation which imposes a limit on the rent which can be charged, then the concept ofd include that restriction also. This is the reason why in a serious of judgments of this Court it has been laid down that the rateable value is limited by the standard rent determined or determinable under the provisions of the Rent Restriction Legislation. The only exception made was in a situation like Griha Yajmanule Samkya and others (supra), where the Municipal Corporation Act has a detailed method to fix the rateable value. As already noticed by the judgments of this Court, barring the two exceptional cases of Municipal Legislation containinge or deeming clause with regard to the rateable value, it must necessarily be held to be limited by the standard rent determined or determinable under the applicable rent control legislation.We are unable to accept the contention of Shri Singhvi that his case falls within the ratio of Griha Yajmanule Samkya and others (supra). In that case the municipal legislation in Hyderabad specifically contained detailed provisions for fixation of monthly or yearly rent. Examining the statute before it, this Court took the view that the statutory provisions required the tax to be levied on the basis of rateable value as fixed by the Corporation and there was further provision in the Act as to the method or manner of determination of the rateable value. Hence, this Court observed (vide paragraph 35), "the Act mandates that the Commissioner shall determine the tax to be paid by the person concerned in the manner prescribed under the statute and the rules. It is our view that the Act and the Rules provide a complete code for assessment of the property tax to be levied upon buildings within the Municipal Corporation. There is no provision in the statute that the fair rent determined under the Rent Control Act in respect of a property is binding on the Commissioner. The legislature has wisely not made such a provision because determination of annual rent depends on several criteria". We are, therefore, unable to accept the contention of Shri Singhvi in thisthe present case the respondent failed to lead any evidence to show why Rs. 3,000/per sq.mtr. was not a reasonable market value, nor did it adduce any evidence to show that Rs. 2500/per sq. mtr. was the reasonable market value. In the circumstances, Shri Singhvi contends that taking the market value at Rs. 3,000/per sq.mtr. was perfectly justified for assessing the rateable value.Section 11 read with Section 5 (10) (b) of the Bombay Municipal Act, 1947 makes it clear that where premises were let before, on or after the first September, 1940 the first letting rate shall be the standard rent subject to the provisions of Section 11.35. In the present case, as to whether the premises in question were let before first September, 1940, or thereafter, and, if so, what was the first letting rate, is not ascertainable from the record. In the circumstances, Shri Singhvi submits that the other alternative method of finding out the standard rent is "contractors method" which has been judicially approved. Under this method the market value of the land has to be ascertained and reasonable return fixed thereupon to determine the standard rent. This is precisely what was done by the assessor and Collector by taking the market value Rs. 3,000/per sq. mtr. as a fair value with a reasonable return of 12% thereupon. In fact, even the respondent suggested only Rs. 2500/per sq.mtr. as the fair market value and did not raise any dispute with regard to the fair return. The Bombay High Court in Harilal Parekh vs. Jain Coop. Housing Society [AIR 1957 Bom. 207 ] and Saipansaheb Wd. Dawoodsaheb vs. Laxman Venkatesh Naik [57 BLR 413], pointed out that under Section 5 (10) (b) (1) the first letting on first September, 1940 becomes the standard rent subject to the provision of Section 11 of the Act and, when the occasion arises, the Court has the jurisdiction toit under Section 5 (10) (b) (1), where the case falls under Section 11(1)(e) of the Bombay Rent Act. It was also pointed in Harilal Parekh (supra) that the premises were first let after first September, 1940 and the rent shall be equivalent to 6% on the valuation of land and 8.2/3% on the valuation of building.36. It is true that Section 11 of the Rent Act provides that even standard rent can be altered andif there is any structural alteration or change in the amenities. It is urged by Shri Singhvi that demolition of the building and increasing the building potential of the land is one such change contemplated by Section 11 (a). This contention, we are unable to accept. Section 11(a) is intended to enable the Court, upon an application in any suit or proceeding, to modify the standard rent as a result of structural alteration or change in the amenities involving further capital investment of the owner. We do not think that demolition of a building is one such contingency contemplated by Section 11(a) of the Act.37. In the result, though we accept the proposition urged by the respondent that in the facts of the present case the standard rent would be the limit of the rateable value, we find that there was no material produced on record at any stage by the respondent to show what the standard rent was either in respect of the vacant land or in respect of the land on which the building was constructed and demolished, or in respect of the building after it was constructed. We accept the contention of the appellant that the burden of proving this fact, while objecting to the rateable value fixed by the Commissioner, is always on theWe also accept the contention of the appellant that the respondent was less than fair to the appellant in not disclosing that its property had been occupied by National Stock Exchange of India Ltd. and National Security Depository Ltd. and in not disclosing the amounts paid by them. The respondent ought to have disclosed the fact, fairly and fully, and urged the legal contentions open to it based thereupon. These facts would have justified our allowing the appeal fully and restoring the assessment orders made by the appellant officers. However, we are not inclined to do so for the reason that the attention of the parties has not been focused on the core issue, as a result of which, perhaps, there was failure to produce relevant material before the assessor to show what was the standard rent. The interests of justice would require that the issue be reconsidered after giving an opportunity to the respondent to discharge the burden placed upon it under law. | 1 | 7,950 | 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.
### Input:
any of the following] cases the Court may, upon an application made to it for that purpose, or in any suit or proceedings, fix the standard rent at such amount as, having regard to the provisions of this Act and circumstances of the case, the Court deems just -(a) where any premises are first let after the first day of September, 1940 and the rent at which they are so let is in the opinion of the Court excessive; or(b) where the Court is satisfied that there is not sufficient evidence to ascertain the rent at which the premises were let in any one of the cases mentioned in [paragraph (i) to (iii) of sub-clause (b) of clause (10)] of section 5; or(c) where by reason of the premises having been let at one time as a whole or in parts and at another time in parts or as a whole, or for any other reason, any difficulty arises in giving effect to this Part; or(d) where any premises have been or are let rent free or at a nominal rent or for some consideration in addition to rent; or(d-1) without prejudice to the provisions of sub-section (A) of Section 4 and paragraph (iii-a) of sub-clause (b) of clause (10) of Section 5, where the Court is satisfied that the rent in respect of the premises referred to therein exceeds the limit of standard rent laid down in the said paragraph (iii-a); or](e) where there is any dispute between the landlord and the tenant regarding the amount of standard rent." "Section - 11(2) - If there is any dispute between the landlord and the tenant regarding the amount of standard rent." 34. Section 11 read with Section 5 (10) (b) of the Bombay Municipal Act, 1947 makes it clear that where premises were let before, on or after the first September, 1940 the first letting rate shall be the standard rent subject to the provisions of Section 11.35. In the present case, as to whether the premises in question were let before first September, 1940, or thereafter, and, if so, what was the first letting rate, is not ascertainable from the record. In the circumstances, Shri Singhvi submits that the other alternative method of finding out the standard rent is "contractors method" which has been judicially approved. Under this method the market value of the land has to be ascertained and reasonable return fixed thereupon to determine the standard rent. This is precisely what was done by the assessor and Collector by taking the market value Rs. 3,000/- per sq. mtr. as a fair value with a reasonable return of 12% thereupon. In fact, even the respondent suggested only Rs. 2500/- per sq.mtr. as the fair market value and did not raise any dispute with regard to the fair return. The Bombay High Court in Harilal Parekh vs. Jain Coop. Housing Society [AIR 1957 Bom. 207 ] and Saipansaheb Wd. Dawoodsaheb vs. Laxman Venkatesh Naik [57 BLR 413], pointed out that under Section 5 (10) (b) (1) the first letting on first September, 1940 becomes the standard rent subject to the provision of Section 11 of the Act and, when the occasion arises, the Court has the jurisdiction to re-determine it under Section 5 (10) (b) (1), where the case falls under Section 11(1)(e) of the Bombay Rent Act. It was also pointed in Harilal Parekh (supra) that the premises were first let after first September, 1940 and the rent shall be equivalent to 6% on the valuation of land and 8.2/3% on the valuation of building.36. It is true that Section 11 of the Rent Act provides that even standard rent can be altered and re-fixed if there is any structural alteration or change in the amenities. It is urged by Shri Singhvi that demolition of the building and increasing the building potential of the land is one such change contemplated by Section 11 (a). This contention, we are unable to accept. Section 11(a) is intended to enable the Court, upon an application in any suit or proceeding, to modify the standard rent as a result of structural alteration or change in the amenities involving further capital investment of the owner. We do not think that demolition of a building is one such contingency contemplated by Section 11(a) of the Act.37. In the result, though we accept the proposition urged by the respondent that in the facts of the present case the standard rent would be the limit of the rateable value, we find that there was no material produced on record at any stage by the respondent to show what the standard rent was either in respect of the vacant land or in respect of the land on which the building was constructed and demolished, or in respect of the building after it was constructed. We accept the contention of the appellant that the burden of proving this fact, while objecting to the rateable value fixed by the Commissioner, is always on the respondent-assessee. We also accept the contention of the appellant that the respondent was less than fair to the appellant in not disclosing that its property had been occupied by National Stock Exchange of India Ltd. and National Security Depository Ltd. and in not disclosing the amounts paid by them. The respondent ought to have disclosed the fact, fairly and fully, and urged the legal contentions open to it based thereupon. These facts would have justified our allowing the appeal fully and restoring the assessment orders made by the appellant officers. However, we are not inclined to do so for the reason that the attention of the parties has not been focused on the core issue, as a result of which, perhaps, there was failure to produce relevant material before the assessor to show what was the standard rent. The interests of justice would require that the issue be reconsidered after giving an opportunity to the respondent to discharge the burden placed upon it under law.
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be limited by the standard rent determined or determinable under the applicable rent control legislation.We are unable to accept the contention of Shri Singhvi that his case falls within the ratio of Griha Yajmanule Samkya and others (supra). In that case the municipal legislation in Hyderabad specifically contained detailed provisions for fixation of monthly or yearly rent. Examining the statute before it, this Court took the view that the statutory provisions required the tax to be levied on the basis of rateable value as fixed by the Corporation and there was further provision in the Act as to the method or manner of determination of the rateable value. Hence, this Court observed (vide paragraph 35), "the Act mandates that the Commissioner shall determine the tax to be paid by the person concerned in the manner prescribed under the statute and the rules. It is our view that the Act and the Rules provide a complete code for assessment of the property tax to be levied upon buildings within the Municipal Corporation. There is no provision in the statute that the fair rent determined under the Rent Control Act in respect of a property is binding on the Commissioner. The legislature has wisely not made such a provision because determination of annual rent depends on several criteria". We are, therefore, unable to accept the contention of Shri Singhvi in thisthe present case the respondent failed to lead any evidence to show why Rs. 3,000/per sq.mtr. was not a reasonable market value, nor did it adduce any evidence to show that Rs. 2500/per sq. mtr. was the reasonable market value. In the circumstances, Shri Singhvi contends that taking the market value at Rs. 3,000/per sq.mtr. was perfectly justified for assessing the rateable value.Section 11 read with Section 5 (10) (b) of the Bombay Municipal Act, 1947 makes it clear that where premises were let before, on or after the first September, 1940 the first letting rate shall be the standard rent subject to the provisions of Section 11.35. In the present case, as to whether the premises in question were let before first September, 1940, or thereafter, and, if so, what was the first letting rate, is not ascertainable from the record. In the circumstances, Shri Singhvi submits that the other alternative method of finding out the standard rent is "contractors method" which has been judicially approved. Under this method the market value of the land has to be ascertained and reasonable return fixed thereupon to determine the standard rent. This is precisely what was done by the assessor and Collector by taking the market value Rs. 3,000/per sq. mtr. as a fair value with a reasonable return of 12% thereupon. In fact, even the respondent suggested only Rs. 2500/per sq.mtr. as the fair market value and did not raise any dispute with regard to the fair return. The Bombay High Court in Harilal Parekh vs. Jain Coop. Housing Society [AIR 1957 Bom. 207 ] and Saipansaheb Wd. Dawoodsaheb vs. Laxman Venkatesh Naik [57 BLR 413], pointed out that under Section 5 (10) (b) (1) the first letting on first September, 1940 becomes the standard rent subject to the provision of Section 11 of the Act and, when the occasion arises, the Court has the jurisdiction toit under Section 5 (10) (b) (1), where the case falls under Section 11(1)(e) of the Bombay Rent Act. It was also pointed in Harilal Parekh (supra) that the premises were first let after first September, 1940 and the rent shall be equivalent to 6% on the valuation of land and 8.2/3% on the valuation of building.36. It is true that Section 11 of the Rent Act provides that even standard rent can be altered andif there is any structural alteration or change in the amenities. It is urged by Shri Singhvi that demolition of the building and increasing the building potential of the land is one such change contemplated by Section 11 (a). This contention, we are unable to accept. Section 11(a) is intended to enable the Court, upon an application in any suit or proceeding, to modify the standard rent as a result of structural alteration or change in the amenities involving further capital investment of the owner. We do not think that demolition of a building is one such contingency contemplated by Section 11(a) of the Act.37. In the result, though we accept the proposition urged by the respondent that in the facts of the present case the standard rent would be the limit of the rateable value, we find that there was no material produced on record at any stage by the respondent to show what the standard rent was either in respect of the vacant land or in respect of the land on which the building was constructed and demolished, or in respect of the building after it was constructed. We accept the contention of the appellant that the burden of proving this fact, while objecting to the rateable value fixed by the Commissioner, is always on theWe also accept the contention of the appellant that the respondent was less than fair to the appellant in not disclosing that its property had been occupied by National Stock Exchange of India Ltd. and National Security Depository Ltd. and in not disclosing the amounts paid by them. The respondent ought to have disclosed the fact, fairly and fully, and urged the legal contentions open to it based thereupon. These facts would have justified our allowing the appeal fully and restoring the assessment orders made by the appellant officers. However, we are not inclined to do so for the reason that the attention of the parties has not been focused on the core issue, as a result of which, perhaps, there was failure to produce relevant material before the assessor to show what was the standard rent. The interests of justice would require that the issue be reconsidered after giving an opportunity to the respondent to discharge the burden placed upon it under law.
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UNION OF INDIA Vs. DYAGALA DEVAMMA | prudent purchaser would do. (13) The market value of the land under acquisition has thereafter to be deduced by loading the price reflected in the instance taken as norm for plus factors and unloading it for minus factors. (14) The exercise indicated in Clauses (11) to (13) has to be undertaken in a common sense manner as a prudent man of the world of business would do. We may illustrate some such illustrative (not exhaustive) factors: (15) The evaluation of these factors of course depends on the facts of each case. There cannot be any hard and fast or rigid rule. Common sense is the best and most reliable guide. For instance, take the factor regarding the size. A building plot of land say 500 to 1000 sq. yds. cannot be compared with a large tract or block of land of say 10,000 sq. yds. or more. Firstly while a smaller plot is within the reach of many, a large block of land will have to be developed by preparing a lay out, carving out roads, leaving open space, plotting out smaller plots, waiting for purchasers (meanwhile the invested money will be blocked up) and the hazards of an entrepreneur. The factor can be discounted by making a deduction by way of an allowance at an appropriate rate ranging approximately between 20 per cent to 50 per cent to account for land required to be set apart for carving out lands and plotting out small plots. The discounting will to some extent also depend on whether it is a rural area or urban area, whether building activity is picking up, and whether waiting period during which the capital of the entrepreneur would be locked up, will be longer or shorter and the attendant hazards. (16) Every case must be dealt with on its own fact pattern bearing in mind all these factors as a prudent purchaser of land in which position the judge must place himself. (17) These are general guidelines to be applied with understanding informed with common sense. 21. These principles are invariably kept in mind by the Courts while determining the market value of the acquired lands (also see Union of India v. Raj Kumar Baghal Singh (Dead) Through Legal Representatives and Ors. (2014) 10 SCC 422 ), 22. In addition to these principles, this Court in several cases have laid down that while determining the true market value of the acquired land especially when the acquired land is a large chunk of undeveloped land, it is just and reasonable to make appropriate deduction towards expenses for development of acquired land. It has also been consistently held that at what percentage the deduction should be made varies from 10% to 86% and, therefore, the deduction should be made keeping in mind the nature of the land, area under acquisition, whether the land is developed or not and, if so, to what extent, the purpose of acquisition, etc. It has also been held that while determining the market value of the large chunk of land, the value of smaller pieces of land can be taken into consideration after making proper deduction in the value of lands especially when sale deeds of larger parcel of land are not available. This Court has also laid down that the Court should also take into consideration the potentiality of the acquired land apart from other relevant considerations. This Court has also recognized that the Courts can always apply reasonable amount of guesswork to balance the equities in order to fix a just and fair market value in terms of parameters specified Under Section 23 of the Act. (See Trishala Jain and Anr. v. State of Uttaranchal and Anr. (2011) 6 SCC 47 , (and Vithal Rao and Anr. v. Special Land Acquisition Officer, (2017) 8 SCC 558 ) 23. Keeping in mind the aforementioned principles, when we take note of the facts of the case at hand, we find that firstly, the land acquired in question is a large chunk of land (101 acres approx.); Secondly, it is not fully developed; Thirdly, the Respondents (landowners) have not filed any exemplar sale deed relating to large pieces of land sold in acres to prove the market value of the acquired land; Fourthly, exemplar relied on by the Respondents, especially Ex. P-18 pertains to very small pieces of land (19 guntas); Fifthly, the three distinguishing features noticed in the land in sale deed (Ex. P-18) are not present in the acquired land. 24. It was for the aforementioned reasons, in our opinion, the Reference Court was justified in making deduction of 50% towards developmental charges from the market value. The High Court, in our opinion, did not assign any good reason as to why and on what basis, it considered proper to make deduction towards developmental charges at the rate of 25% in place of 50%. 25. This Court has held in Trishala Jains case (supra) that it depends upon the facts of each case to decide for determination of the market value of the land as to what percentage should be adopted for deduction. In our opinion, the reasons mentioned above were rightly made basis by the Reference Court to support the deduction of 50%. 26. So far as the determination of market value made by the Reference Court is concerned, i.e., Rs. 21,29,600/- per acre, the same having been upheld by the High Court, we do not find any justification to examine this issue again. Even the learned ASG did not challenge this finding and confined his submissions only relating to the issue of percentage of the deduction only. 27. Learned Counsel for the Respondents was not able to point out any fact/evidence which could persuade us to uphold the reasoning and conclusion arrived at by the High Court in the impugned judgment. 28. In view of the foregoing discussion, we are inclined to uphold the reasoning and the conclusion arrived at by the Reference Court instead of the High Court. 29. | 1[ds]Keeping in mind the aforementioned principles, when we take note of the facts of the case at hand, we find that firstly, the land acquired in question is a large chunk of land (101 acres approx.); Secondly, it is not fully developed; Thirdly, thes (landowners) have not filed any exemplar sale deed relating to large pieces of land sold in acres to prove the market value of the acquired land; Fourthly, exemplar relied on by the, especially8 pertains to very small pieces of land (19 guntas); Fifthly, the three distinguishing features noticed in the land in sale deed) are not present in the acquired land.It was for the aforementioned reasons, in our opinion, the Reference Court was justified in making deduction of 50% towards developmental charges from the market value. The High Court, in our opinion, did not assign any good reason as to why and on what basis, it considered proper to make deduction towards developmental chargesat therate of25% in place of 50%.This Court has held in Trishalas case (supra) that it depends upon the facts of each case to decide for determination of the market value of the land as to what percentage should be adopted for deduction. In our opinion, the reasons mentioned above were rightly made basis by the Reference Court to support the deduction of 50%.So far as the determination of market value made by the Reference Court is concerned, i.e.,per acre, the same having been upheld by the High Court, we do not find any justification to examine this issue again. Even the learned ASG did not challenge this finding and confined his submissions only relating to the issue of percentage of the deduction only.for thes was not able to point out any fact/evidence which could persuade us to uphold the reasoning and conclusion arrived at by the High Court in the impugned judgment.In view of the foregoing discussion, we are inclined to uphold the reasoning and the conclusion arrived at by the Reference Court instead of the High Court. | 1 | 2,891 | 384 | ### Instruction:
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prudent purchaser would do. (13) The market value of the land under acquisition has thereafter to be deduced by loading the price reflected in the instance taken as norm for plus factors and unloading it for minus factors. (14) The exercise indicated in Clauses (11) to (13) has to be undertaken in a common sense manner as a prudent man of the world of business would do. We may illustrate some such illustrative (not exhaustive) factors: (15) The evaluation of these factors of course depends on the facts of each case. There cannot be any hard and fast or rigid rule. Common sense is the best and most reliable guide. For instance, take the factor regarding the size. A building plot of land say 500 to 1000 sq. yds. cannot be compared with a large tract or block of land of say 10,000 sq. yds. or more. Firstly while a smaller plot is within the reach of many, a large block of land will have to be developed by preparing a lay out, carving out roads, leaving open space, plotting out smaller plots, waiting for purchasers (meanwhile the invested money will be blocked up) and the hazards of an entrepreneur. The factor can be discounted by making a deduction by way of an allowance at an appropriate rate ranging approximately between 20 per cent to 50 per cent to account for land required to be set apart for carving out lands and plotting out small plots. The discounting will to some extent also depend on whether it is a rural area or urban area, whether building activity is picking up, and whether waiting period during which the capital of the entrepreneur would be locked up, will be longer or shorter and the attendant hazards. (16) Every case must be dealt with on its own fact pattern bearing in mind all these factors as a prudent purchaser of land in which position the judge must place himself. (17) These are general guidelines to be applied with understanding informed with common sense. 21. These principles are invariably kept in mind by the Courts while determining the market value of the acquired lands (also see Union of India v. Raj Kumar Baghal Singh (Dead) Through Legal Representatives and Ors. (2014) 10 SCC 422 ), 22. In addition to these principles, this Court in several cases have laid down that while determining the true market value of the acquired land especially when the acquired land is a large chunk of undeveloped land, it is just and reasonable to make appropriate deduction towards expenses for development of acquired land. It has also been consistently held that at what percentage the deduction should be made varies from 10% to 86% and, therefore, the deduction should be made keeping in mind the nature of the land, area under acquisition, whether the land is developed or not and, if so, to what extent, the purpose of acquisition, etc. It has also been held that while determining the market value of the large chunk of land, the value of smaller pieces of land can be taken into consideration after making proper deduction in the value of lands especially when sale deeds of larger parcel of land are not available. This Court has also laid down that the Court should also take into consideration the potentiality of the acquired land apart from other relevant considerations. This Court has also recognized that the Courts can always apply reasonable amount of guesswork to balance the equities in order to fix a just and fair market value in terms of parameters specified Under Section 23 of the Act. (See Trishala Jain and Anr. v. State of Uttaranchal and Anr. (2011) 6 SCC 47 , (and Vithal Rao and Anr. v. Special Land Acquisition Officer, (2017) 8 SCC 558 ) 23. Keeping in mind the aforementioned principles, when we take note of the facts of the case at hand, we find that firstly, the land acquired in question is a large chunk of land (101 acres approx.); Secondly, it is not fully developed; Thirdly, the Respondents (landowners) have not filed any exemplar sale deed relating to large pieces of land sold in acres to prove the market value of the acquired land; Fourthly, exemplar relied on by the Respondents, especially Ex. P-18 pertains to very small pieces of land (19 guntas); Fifthly, the three distinguishing features noticed in the land in sale deed (Ex. P-18) are not present in the acquired land. 24. It was for the aforementioned reasons, in our opinion, the Reference Court was justified in making deduction of 50% towards developmental charges from the market value. The High Court, in our opinion, did not assign any good reason as to why and on what basis, it considered proper to make deduction towards developmental charges at the rate of 25% in place of 50%. 25. This Court has held in Trishala Jains case (supra) that it depends upon the facts of each case to decide for determination of the market value of the land as to what percentage should be adopted for deduction. In our opinion, the reasons mentioned above were rightly made basis by the Reference Court to support the deduction of 50%. 26. So far as the determination of market value made by the Reference Court is concerned, i.e., Rs. 21,29,600/- per acre, the same having been upheld by the High Court, we do not find any justification to examine this issue again. Even the learned ASG did not challenge this finding and confined his submissions only relating to the issue of percentage of the deduction only. 27. Learned Counsel for the Respondents was not able to point out any fact/evidence which could persuade us to uphold the reasoning and conclusion arrived at by the High Court in the impugned judgment. 28. In view of the foregoing discussion, we are inclined to uphold the reasoning and the conclusion arrived at by the Reference Court instead of the High Court. 29.
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Keeping in mind the aforementioned principles, when we take note of the facts of the case at hand, we find that firstly, the land acquired in question is a large chunk of land (101 acres approx.); Secondly, it is not fully developed; Thirdly, thes (landowners) have not filed any exemplar sale deed relating to large pieces of land sold in acres to prove the market value of the acquired land; Fourthly, exemplar relied on by the, especially8 pertains to very small pieces of land (19 guntas); Fifthly, the three distinguishing features noticed in the land in sale deed) are not present in the acquired land.It was for the aforementioned reasons, in our opinion, the Reference Court was justified in making deduction of 50% towards developmental charges from the market value. The High Court, in our opinion, did not assign any good reason as to why and on what basis, it considered proper to make deduction towards developmental chargesat therate of25% in place of 50%.This Court has held in Trishalas case (supra) that it depends upon the facts of each case to decide for determination of the market value of the land as to what percentage should be adopted for deduction. In our opinion, the reasons mentioned above were rightly made basis by the Reference Court to support the deduction of 50%.So far as the determination of market value made by the Reference Court is concerned, i.e.,per acre, the same having been upheld by the High Court, we do not find any justification to examine this issue again. Even the learned ASG did not challenge this finding and confined his submissions only relating to the issue of percentage of the deduction only.for thes was not able to point out any fact/evidence which could persuade us to uphold the reasoning and conclusion arrived at by the High Court in the impugned judgment.In view of the foregoing discussion, we are inclined to uphold the reasoning and the conclusion arrived at by the Reference Court instead of the High Court.
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Modi Spinning & Weaving Mills Co. Ltd Vs. Income-Tax Officer, Special Investigationcircle (B), Meeru | in appeal under the Letters Patent.4. By clause (vi) of sub-sec. (2) of Sec. 10 of the Income-tax Act, 1922, as amended by Act 8 of 1946, in computing the profits or gains of business, profession or vocation carried on by him, an assessee was entitled to allowance not only of normal depreciation but also initial depreciation at the rates set out in clauses (a), (b) and (c) in respect of buildings which had been newly erected, or the machinery or plant being new had been installed after the 31st day of March, 1945. It was, however, expressly enacted that the initial depreciation was not deductible in determining the written down value for the purpose of cl. (vi). Allowance for initial depreciation was therefore not to be taken into account in determining the written down value for determining the normal depreciation. But on than account proviso (c) to Section 10 (2) (vi) was not modified.5. The written down value of the machinery of the Company in the year 1956-57 was Rs. 16,48,053/- but for the application of cl. (c) of the proviso to Section 10 (2) (vi) the initial depreciation allowed in the years 1950-51, 1951-52 and 1952-53 had to be taken into account. The Income-tax Officer inadvertently failed to take into account the initial depreciation, and the Company was allowed normal depreciation in the year 195657 in excess of the amount permissible under proviso (c) to S. 10 (2)(vi) The Income-tax Officer later sought to rectify the error and to bring to tax the income which had escaped tax.6. Before R. S. Pathak, J., it was contended that the definition of "written down value" in Section 10 (5) (b) applies wherever the expression is used in Section 10 (2) and on that account the Company in setting out the written down value in column (2) of Part V of the return was obliged to take into account all the depreciation actually allowed to it including the initial depreciation and as the Company computed the written down value only by deducting the normal depreciation and not the initial depreciation, it failed to disclose fully and truly all material facts necessary for the purpose of assessment. This argument was not accepted of the learned Judge. But he was still of the opinion that the Act imposed upon the Company a duty to disclose all material facts which went to show the true amount of the allowances to which it was entitled, and the Company by failing to disclose that initial depreciation had been allowed in three earlier years, the Company had failed to disclose fully and truly all material facts necessary for assessment, and on that account S. 147(1) (a) was attracted and the notice was properly issued.7. In appeal, the High Court observed that the "only question for consideration".was whether the Income-tax Officer was justified in issuing a notice under Section 148 of the Income-tax Act, 1961.After stating that there was apparently "a mistake and error on the side of the Company as well as the Income-tax Officer", the Court observed that the Income-tax Officer could reasonably come to the conclusion that it was due to the omission and failure on the part of the assessee in disclosing fully and truly all material facts necessary for the assessment that the error was committed by the Income-tax Officer as a result of which some income had escaped assessment. The High Court then observed:"It is difficult to hold that the Income-tax Officer while issuing the notice under Section 148 of the new Act could not reasonably hold the view that prima facie the assessee was responsible for the escape in the assessment." and held that the notices were not liable to be quashed.8. Section 34 (1) (a) of the Income-tax Act, 1922, provided:"(1) If -(a) the Income-tax Officer has reason to believe that by reason of the omission or failure on the part of an assessee to make a return of his income under Section 22 for any year or to disclose fully and truly all material facts necessary for his assessment for that year, income, profits or gains chargeable to income-tax have escaped assessment for that year, or have been under-assessed, or assessed at too low a rate, or have been made the subject of excessive relief under Act, or excessive loss or depreciation allowance has been computed, or* * * * *he may . . . . . . .. proceed to assess or reassess such income, profits or gains or recompute the loss or depreciation allowance; and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub-section:"Section 34 confers jurisdiction upon the Income-tax Officer to issue a notice in respect of the assessment beyond the period of four years, but within a period of eight years, from the end of the relevant year, if two conditions exist - (1) that the Income-tax Officer has reason to believe that income, profits or gains chargeable to income-tax had been under-assessed; and (2) that he has also reason to believe that such "under-assessment" had occurred by reasonof either (i) omission or failure on the part of an assessee to make a return of his income under Section 22, or (ii) omission or failure on the part of an assessee to disclose fully and truly all material facts necessary for his assessment for that year. These conditions are cumulative and precedent to the exercise of jurisdiction to issue a notice of reassessment: Calcutta Discount Co. Ltd. v. Income-tax Officer, Companies District I. Calcutta, 41 ITR 191 = (AIR 1961 SC 372 ).9. In deciding the appeal, the High Court held that the Income-tax Officer did in fact decide that the income had escaped assessment, but the High Court did not consider whether the income escaped assessment by reason of omission or failure on the part of the Company to disclose fully and truly all material facts necessary for assessment. | 0[ds]High Court ofBy clause (vi) of(2) of Sec. 10 of theIncome-tax Act, 1922,as amended by Act 8 of 1946, in computing the profits or gains of business, profession or vocation carried on by him, an assessee was entitled to allowance not only of normal depreciation but also initial depreciation at the rates set out in clauses (a), (b) and (c) in respect of buildings which had been newly erected, or the machinery or plant being new had been installed after the 31st day of March, 1945. It was, however, expressly enacted that the initial depreciation was not deductible in determining the written down value for the purpose of cl. (vi). Allowance for initial depreciation was therefore not to be taken into account in determining the written down value for determining the normal depreciation. But on than account proviso (c) to Section 10 (2) (vi) was not modified.5. The written down value of the machinery of the Company in the yearbut for the application of cl. (c) of the proviso to Section 10 (2)the initial depreciationallowed in the years1950-51, 1951-52 and 1952-53had to be taken into account. Ther inadvertently failed to take into accountand the Company was allowed normal depreciation in the year 195657 in excess of the amount permissible under proviso (c) to S. 10 (2)(vi) Ther later sought to rectify the error and to bring to tax the income which had escaped tax.6. Before R. S. Pathak, J., it was contended that the definition of "written down value" in Section 10 (5) (b) applies wherever the expression is used in Section 10 (2) and on that account the Company in setting out the written down value in column (2) of Part V of the return was obliged to take into account all the depreciation actually allowed to it includingthe initial depreciationand as the Company computed the written down value only by deducting the normal depreciation and notit failed to disclose fully and truly all material facts necessary for the purpose of assessment. This argument was not accepted of the learned Judge. But he was still of the opinion that the Act imposed upon the Company a duty to disclose all material facts which went to show the true amount of the allowances to which it was entitled, and the Company by failing to disclose that initial depreciation had been allowed in three earlier years, the Company had failed to disclose fully and truly all material facts necessary for assessment, and on that account S. 147(1) (a) was attracted and the notice was properly issued.7. In appeal, the High Court observed that the "only question for consideration".was whether ther was justified in issuing a notice under Section 148 ofx Act, 1961.After stating that there was apparently "a mistake and error on the side of the Company as well as the, the Court observed that ther could reasonably come to the conclusion that it was due to the omission and failure on the part of the assessee in disclosing fully and truly all material facts necessary for the assessment that the error was committed by ther as a result of which some income had escaped assessment. The High Court thens difficult to hold that ther while issuing the notice under Section 148 of the new Act could not reasonably hold the view that prima facie the assessee was responsible for the escape in the assessment." and held that the notices were not liable to be4 confers jurisdiction upon ther to issue a notice in respect of the assessment beyond the period of four years, but within a period of eight years, from the end of the relevant year, if two conditions exist) that ther has reason to believe that income, profits or gains chargeable toincome-tax had beenand (2) that he has also reason to believe that suchd occurred by reasonof either (i) omission or failure on the part of an assessee to make a return of his income under Section 22, or (ii) omission or failure on the part of an assessee to disclose fully and truly all material facts necessary for his assessment for that year. These conditions are cumulative and precedent to the exercise of jurisdiction to issue a notice of reassessment: Calcutta Discount Co. Ltd. v., Companies District I. Calcutta, 41 ITR 191 = (AIR 1961 SC 372 ).In deciding the appeal, the High Court held that the Income-tax Officer did in fact decide that the income had escaped assessment, but the High Court did not consider whether the income escaped assessment by reason of omission or failure on the part of the Company to disclose fully and truly all material facts necessary for assessment. | 0 | 1,814 | 887 | ### Instruction:
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in appeal under the Letters Patent.4. By clause (vi) of sub-sec. (2) of Sec. 10 of the Income-tax Act, 1922, as amended by Act 8 of 1946, in computing the profits or gains of business, profession or vocation carried on by him, an assessee was entitled to allowance not only of normal depreciation but also initial depreciation at the rates set out in clauses (a), (b) and (c) in respect of buildings which had been newly erected, or the machinery or plant being new had been installed after the 31st day of March, 1945. It was, however, expressly enacted that the initial depreciation was not deductible in determining the written down value for the purpose of cl. (vi). Allowance for initial depreciation was therefore not to be taken into account in determining the written down value for determining the normal depreciation. But on than account proviso (c) to Section 10 (2) (vi) was not modified.5. The written down value of the machinery of the Company in the year 1956-57 was Rs. 16,48,053/- but for the application of cl. (c) of the proviso to Section 10 (2) (vi) the initial depreciation allowed in the years 1950-51, 1951-52 and 1952-53 had to be taken into account. The Income-tax Officer inadvertently failed to take into account the initial depreciation, and the Company was allowed normal depreciation in the year 195657 in excess of the amount permissible under proviso (c) to S. 10 (2)(vi) The Income-tax Officer later sought to rectify the error and to bring to tax the income which had escaped tax.6. Before R. S. Pathak, J., it was contended that the definition of "written down value" in Section 10 (5) (b) applies wherever the expression is used in Section 10 (2) and on that account the Company in setting out the written down value in column (2) of Part V of the return was obliged to take into account all the depreciation actually allowed to it including the initial depreciation and as the Company computed the written down value only by deducting the normal depreciation and not the initial depreciation, it failed to disclose fully and truly all material facts necessary for the purpose of assessment. This argument was not accepted of the learned Judge. But he was still of the opinion that the Act imposed upon the Company a duty to disclose all material facts which went to show the true amount of the allowances to which it was entitled, and the Company by failing to disclose that initial depreciation had been allowed in three earlier years, the Company had failed to disclose fully and truly all material facts necessary for assessment, and on that account S. 147(1) (a) was attracted and the notice was properly issued.7. In appeal, the High Court observed that the "only question for consideration".was whether the Income-tax Officer was justified in issuing a notice under Section 148 of the Income-tax Act, 1961.After stating that there was apparently "a mistake and error on the side of the Company as well as the Income-tax Officer", the Court observed that the Income-tax Officer could reasonably come to the conclusion that it was due to the omission and failure on the part of the assessee in disclosing fully and truly all material facts necessary for the assessment that the error was committed by the Income-tax Officer as a result of which some income had escaped assessment. The High Court then observed:"It is difficult to hold that the Income-tax Officer while issuing the notice under Section 148 of the new Act could not reasonably hold the view that prima facie the assessee was responsible for the escape in the assessment." and held that the notices were not liable to be quashed.8. Section 34 (1) (a) of the Income-tax Act, 1922, provided:"(1) If -(a) the Income-tax Officer has reason to believe that by reason of the omission or failure on the part of an assessee to make a return of his income under Section 22 for any year or to disclose fully and truly all material facts necessary for his assessment for that year, income, profits or gains chargeable to income-tax have escaped assessment for that year, or have been under-assessed, or assessed at too low a rate, or have been made the subject of excessive relief under Act, or excessive loss or depreciation allowance has been computed, or* * * * *he may . . . . . . .. proceed to assess or reassess such income, profits or gains or recompute the loss or depreciation allowance; and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub-section:"Section 34 confers jurisdiction upon the Income-tax Officer to issue a notice in respect of the assessment beyond the period of four years, but within a period of eight years, from the end of the relevant year, if two conditions exist - (1) that the Income-tax Officer has reason to believe that income, profits or gains chargeable to income-tax had been under-assessed; and (2) that he has also reason to believe that such "under-assessment" had occurred by reasonof either (i) omission or failure on the part of an assessee to make a return of his income under Section 22, or (ii) omission or failure on the part of an assessee to disclose fully and truly all material facts necessary for his assessment for that year. These conditions are cumulative and precedent to the exercise of jurisdiction to issue a notice of reassessment: Calcutta Discount Co. Ltd. v. Income-tax Officer, Companies District I. Calcutta, 41 ITR 191 = (AIR 1961 SC 372 ).9. In deciding the appeal, the High Court held that the Income-tax Officer did in fact decide that the income had escaped assessment, but the High Court did not consider whether the income escaped assessment by reason of omission or failure on the part of the Company to disclose fully and truly all material facts necessary for assessment.
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High Court ofBy clause (vi) of(2) of Sec. 10 of theIncome-tax Act, 1922,as amended by Act 8 of 1946, in computing the profits or gains of business, profession or vocation carried on by him, an assessee was entitled to allowance not only of normal depreciation but also initial depreciation at the rates set out in clauses (a), (b) and (c) in respect of buildings which had been newly erected, or the machinery or plant being new had been installed after the 31st day of March, 1945. It was, however, expressly enacted that the initial depreciation was not deductible in determining the written down value for the purpose of cl. (vi). Allowance for initial depreciation was therefore not to be taken into account in determining the written down value for determining the normal depreciation. But on than account proviso (c) to Section 10 (2) (vi) was not modified.5. The written down value of the machinery of the Company in the yearbut for the application of cl. (c) of the proviso to Section 10 (2)the initial depreciationallowed in the years1950-51, 1951-52 and 1952-53had to be taken into account. Ther inadvertently failed to take into accountand the Company was allowed normal depreciation in the year 195657 in excess of the amount permissible under proviso (c) to S. 10 (2)(vi) Ther later sought to rectify the error and to bring to tax the income which had escaped tax.6. Before R. S. Pathak, J., it was contended that the definition of "written down value" in Section 10 (5) (b) applies wherever the expression is used in Section 10 (2) and on that account the Company in setting out the written down value in column (2) of Part V of the return was obliged to take into account all the depreciation actually allowed to it includingthe initial depreciationand as the Company computed the written down value only by deducting the normal depreciation and notit failed to disclose fully and truly all material facts necessary for the purpose of assessment. This argument was not accepted of the learned Judge. But he was still of the opinion that the Act imposed upon the Company a duty to disclose all material facts which went to show the true amount of the allowances to which it was entitled, and the Company by failing to disclose that initial depreciation had been allowed in three earlier years, the Company had failed to disclose fully and truly all material facts necessary for assessment, and on that account S. 147(1) (a) was attracted and the notice was properly issued.7. In appeal, the High Court observed that the "only question for consideration".was whether ther was justified in issuing a notice under Section 148 ofx Act, 1961.After stating that there was apparently "a mistake and error on the side of the Company as well as the, the Court observed that ther could reasonably come to the conclusion that it was due to the omission and failure on the part of the assessee in disclosing fully and truly all material facts necessary for the assessment that the error was committed by ther as a result of which some income had escaped assessment. The High Court thens difficult to hold that ther while issuing the notice under Section 148 of the new Act could not reasonably hold the view that prima facie the assessee was responsible for the escape in the assessment." and held that the notices were not liable to be4 confers jurisdiction upon ther to issue a notice in respect of the assessment beyond the period of four years, but within a period of eight years, from the end of the relevant year, if two conditions exist) that ther has reason to believe that income, profits or gains chargeable toincome-tax had beenand (2) that he has also reason to believe that suchd occurred by reasonof either (i) omission or failure on the part of an assessee to make a return of his income under Section 22, or (ii) omission or failure on the part of an assessee to disclose fully and truly all material facts necessary for his assessment for that year. These conditions are cumulative and precedent to the exercise of jurisdiction to issue a notice of reassessment: Calcutta Discount Co. Ltd. v., Companies District I. Calcutta, 41 ITR 191 = (AIR 1961 SC 372 ).In deciding the appeal, the High Court held that the Income-tax Officer did in fact decide that the income had escaped assessment, but the High Court did not consider whether the income escaped assessment by reason of omission or failure on the part of the Company to disclose fully and truly all material facts necessary for assessment.
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University Of Kashmir And Others Vs. Mohd. Yasin And Others | to in this section as a temporary measure for a period not exceeding six months to carry on the work and if the recommendations of the Selection Committee are not received within a period of six months, the Vice-Chancellor may extend the appointment, if any made by him for the duration of the academic session with the approval of the University Council...."Thus, the only body competent to appoint a professor, like the respondent, is the University Council, and even the Council shall make such appointments only on the recommendation of the Selection Committee created by S. 36. There is no case that the Selection Committee ever considered or recommended the respondent for appointment and there is no suggestion that the University Council appointed the respondent as professor. If follows that the only statutory authority empowered in this behalf has not appointed the respondent to the post claimed by him. There is an interim power vested in the Vice-Chancellor hedged in with limitations, as is contained in the third proviso to S. 22 (f). He may make appointments of teachers as a temporary measure for periods not exceeding six months to carry on the work, and if the Selection Committees recommendation is not received within that time he may extend the appointment for the duration of the academic session with the approval of the University Council.There has been no exercise of the narrow power of the Vice-Chancellor under this proviso and the conclusion is irresistible that the continuance of the respondent on the expiration of the statutory two months period cannot be legitimated by law. Of course, he remained to teach and was paid for his work. He did many other things which a legally appointed professor would do, with the full knowledge and even at the request of the Vice-Chancellor. May be, he, the Vice-Chancellor and others in the University were perhaps not keeping themselves abreast of the law. But the fatal fact remains that the Chancellor did not extend the services of the respondent as contemplated by S. 52(4), and this failure finishes the plea of continuance in office of the professor.We are not concerned with the administrative fall-out from this finding although the salary of the teacher appears to have been sanctioned by the Vice-Chancellor - a place of conduct which may be understandable on equitable grounds.The circumstances that the respondent functioned in the University does not vest in him the legal status of a validity appointed employee with all the protection that the Act and the relevant statutes give to such a person. In this view of the fact-situation, without more, the respondents work on the University campus can be brought to a close.No case of statutory termination of service is called for,the basis of statutory employment being absent. The ad hoc arrangement by which he remained to teach did not acquire legal validity merely because the Vice-Chancellor went through the irregular exercises of extending his probation, etc. We have to hold that the curtain fell on the office held by the respondent when, at the end of 60 days after the Act, the sands of time ran out.8. The ground urged successfully, as it were, before the High Court, of an implied engagement cannot, in our view, be sustained. When a statute creates a body and vests it with authority and circumscribes its powers by specifying limitations, the doctrine of implied engagement de hors the provisions and powers under the Act would be subversive of the statutory scheme regarding appointments of officers and cannot be countenanced by the Court. Power in this case has been vested in the University Council only and the manner of its exercise has been carefully regulated. Therefore, the appointment of the respondent could be made only by the Council and only in the mode prescribed by the statute. If a Vice-Chancellor by administrative drift allows such employment it cannot be validated on any theory of factum valet.We cannot countenance the alleged continuance of the respondent in the University campus as tantamount to regular service under the University with the sanction of law. In short, the respondent has no presentable case against the direction to quit.9. Even so, there are certain disquieting features in this case. The Additional Solicitor General fairly concedes that there was no provision in the 1969 Act which would continue or validate the enquiry commenced against the respondent by Jammu and Kashmir University created by the 1965 Act.If so, the enquiry report alls to the ground vis-a-vis the respondent. The fact that he responded to a show-cause notice cannot clothe the enquiry with legality and the report is impermissible material to injure the respondent with a punitive termination. The reliance on the enquiry report by the University to take a hostile decision on July 7, 1970, is illegal. The University Council could not act to his prejudice on the strength of damaging report which had no force. We are, therefore, clear in our minds that the termination of the services of the respondent was stricken by the vice of statutory violation. The respondent is perfectly right in contending that he has been considerably damnified in his standing and reputation by this order of the University. We, are therefore, inclined to the view that while the respondent has no right to continue in the University, the termination of his services, as per annexure, A, is invalid. It is no use the University contending that its order is innocuous. It is clear that its annexure A carries a stigma with it since it expresses "the unanimous conclusion that the ... charges have been established against him" and the termination itself is founded on the guilt so made out. We, therefore, declare that Annexure A is void but further hold that the respondent has no right to continue in service and the direction to him that he should leave his post as Professor and Head of the Post Graduate History Department is good. The High Courts order of reinstatement is quashed. | 1[ds]6. Thus we reach the position that, on a combined reading of Statute 2 framed under the 1965 Act (already extracted above) and S. 51 of the Ordinance of 1969, which is in identical terms with Section 59 of the Act which replaced the Ordinance, the respondent was an employee of the University serving under a contract. In fact, neither party disputes this position. Our attention must now turn to a crucial provision in the 1969 Ordinance which is also reproduced in the ensuingwe may condense the effect of this provision to the extent relevant to the present case, it means that teachers employed on contract basis "unless otherwise ordered by the Chancellor after consulting theshall ceases to hold such posts or to discharge such duties after 60 days from the commencement of this Ordinance" or the Act, as the case may be. To add emphasis, as it were, to the cessation of such tenure the further part of the section reiterates that "all such contracts with ... the University of Jammu and Kashmir shall stand terminated with effect from the expiry of the said period of 60 days." Thus, by the inexorable operation of the calender, on November 5, 1969, the respondent made a statutory exit from the employment of the Kashmir University. This much even the respondent has reconciled himself to, and the High Court hasis true that de facto the respondent functioned as Professor, drew salary as such, became a member of the Academic Council in that capacity and was treated as on extended probation by theIn view of these habiliments of professoriate the High Court assumed the premise that the respondent was "admittedly in the employment of the University of Kashmir on the relevant date" and proceeded to essay the next problem which it posed in thesethe only body competent to appoint a professor, like the respondent, is the University Council, and even the Council shall make such appointments only on the recommendation of the Selection Committee created by S. 36. There is no case that the Selection Committee ever considered or recommended the respondent for appointment and there is no suggestion that the University Council appointed the respondent as professor. If follows that the only statutory authority empowered in this behalf has not appointed the respondent to the post claimed by him. There is an interim power vested in thehedged in with limitations, as is contained in the third proviso to S. 22 (f). He may make appointments of teachers as a temporary measure for periods not exceeding six months to carry on the work, and if the Selection Committees recommendation is not received within that time he may extend the appointment for the duration of the academic session with the approval of the University Council.There has been no exercise of the narrow power of theunder this proviso and the conclusion is irresistible that the continuance of the respondent on the expiration of the statutory two months period cannot be legitimated by law. Of course, he remained to teach and was paid for his work. He did many other things which a legally appointed professor would do, with the full knowledge and even at the request of theMay be, he, theand others in the University were perhaps not keeping themselves abreast of the law. But the fatal fact remains that the Chancellor did not extend the services of the respondent as contemplated by S. 52(4), and this failure finishes the plea of continuance in office of the professor.We are not concerned with the administrativefrom this finding although the salary of the teacher appears to have been sanctioned by thea place of conduct which may be understandable on equitable grounds.The circumstances that the respondent functioned in the University does not vest in him the legal status of a validity appointed employee with all the protection that the Act and the relevant statutes give to such a person. In this view of thewithout more, the respondents work on the University campus can be brought to a close.No case of statutory termination of service is called for,the basis of statutory employment being absent. The ad hoc arrangement by which he remained to teach did not acquire legal validity merely because thewent through the irregular exercises of extending his probation, etc. We have to hold that the curtain fell on the office held by the respondent when, at the end of 60 days after the Act, the sands of time ran out.8. The ground urged successfully, as it were, before the High Court, of an implied engagement cannot, in our view, be sustained. When a statute creates a body and vests it with authority and circumscribes its powers by specifying limitations, the doctrine of implied engagement de hors the provisions and powers under the Act would be subversive of the statutory scheme regarding appointments of officers and cannot be countenanced by the Court. Power in this case has been vested in the University Council only and the manner of its exercise has been carefully regulated. Therefore, the appointment of the respondent could be made only by the Council and only in the mode prescribed by the statute. If aby administrative drift allows such employment it cannot be validated on any theory of factum valet.We cannot countenance the alleged continuance of the respondent in the University campus as tantamount to regular service under the University with the sanction of law. In short, the respondent has no presentable case against the direction to quit.9. Even so, there are certain disquieting features in this case. The Additional Solicitor General fairly concedes that there was no provision in the 1969 Act which would continue or validate the enquiry commenced against the respondent by Jammu and Kashmir University created by the 1965 Act.If so, the enquiry report alls to the groundthe respondent. The fact that he responded to anotice cannot clothe the enquiry with legality and the report is impermissible material to injure the respondent with a punitive termination. The reliance on the enquiry report by the University to take a hostile decision on July 7, 1970, is illegal. The University Council could not act to his prejudice on the strength of damaging report which had no force. We are, therefore, clear in our minds that the termination of the services of the respondent was stricken by the vice of statutory violation. The respondent is perfectly right in contending that he has been considerably damnified in his standing and reputation by this order of the University. We, are therefore, inclined to the view that while the respondent has no right to continue in the University, the termination of his services, as per annexure, A, is invalid. It is no use the University contending that its order is innocuous. It is clear that its annexure A carries a stigma with it since it expresses "the unanimous conclusion that the ... charges have been established against him" and the termination itself is founded on the guilt so made out. We, therefore, declare that Annexure A is void but further hold that the respondent has no right to continue in service and the direction to him that he should leave his post as Professor and Head of the Post Graduate History Department is good. The High Courts order of reinstatement is quashed. | 1 | 3,624 | 1,328 | ### 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:
to in this section as a temporary measure for a period not exceeding six months to carry on the work and if the recommendations of the Selection Committee are not received within a period of six months, the Vice-Chancellor may extend the appointment, if any made by him for the duration of the academic session with the approval of the University Council...."Thus, the only body competent to appoint a professor, like the respondent, is the University Council, and even the Council shall make such appointments only on the recommendation of the Selection Committee created by S. 36. There is no case that the Selection Committee ever considered or recommended the respondent for appointment and there is no suggestion that the University Council appointed the respondent as professor. If follows that the only statutory authority empowered in this behalf has not appointed the respondent to the post claimed by him. There is an interim power vested in the Vice-Chancellor hedged in with limitations, as is contained in the third proviso to S. 22 (f). He may make appointments of teachers as a temporary measure for periods not exceeding six months to carry on the work, and if the Selection Committees recommendation is not received within that time he may extend the appointment for the duration of the academic session with the approval of the University Council.There has been no exercise of the narrow power of the Vice-Chancellor under this proviso and the conclusion is irresistible that the continuance of the respondent on the expiration of the statutory two months period cannot be legitimated by law. Of course, he remained to teach and was paid for his work. He did many other things which a legally appointed professor would do, with the full knowledge and even at the request of the Vice-Chancellor. May be, he, the Vice-Chancellor and others in the University were perhaps not keeping themselves abreast of the law. But the fatal fact remains that the Chancellor did not extend the services of the respondent as contemplated by S. 52(4), and this failure finishes the plea of continuance in office of the professor.We are not concerned with the administrative fall-out from this finding although the salary of the teacher appears to have been sanctioned by the Vice-Chancellor - a place of conduct which may be understandable on equitable grounds.The circumstances that the respondent functioned in the University does not vest in him the legal status of a validity appointed employee with all the protection that the Act and the relevant statutes give to such a person. In this view of the fact-situation, without more, the respondents work on the University campus can be brought to a close.No case of statutory termination of service is called for,the basis of statutory employment being absent. The ad hoc arrangement by which he remained to teach did not acquire legal validity merely because the Vice-Chancellor went through the irregular exercises of extending his probation, etc. We have to hold that the curtain fell on the office held by the respondent when, at the end of 60 days after the Act, the sands of time ran out.8. The ground urged successfully, as it were, before the High Court, of an implied engagement cannot, in our view, be sustained. When a statute creates a body and vests it with authority and circumscribes its powers by specifying limitations, the doctrine of implied engagement de hors the provisions and powers under the Act would be subversive of the statutory scheme regarding appointments of officers and cannot be countenanced by the Court. Power in this case has been vested in the University Council only and the manner of its exercise has been carefully regulated. Therefore, the appointment of the respondent could be made only by the Council and only in the mode prescribed by the statute. If a Vice-Chancellor by administrative drift allows such employment it cannot be validated on any theory of factum valet.We cannot countenance the alleged continuance of the respondent in the University campus as tantamount to regular service under the University with the sanction of law. In short, the respondent has no presentable case against the direction to quit.9. Even so, there are certain disquieting features in this case. The Additional Solicitor General fairly concedes that there was no provision in the 1969 Act which would continue or validate the enquiry commenced against the respondent by Jammu and Kashmir University created by the 1965 Act.If so, the enquiry report alls to the ground vis-a-vis the respondent. The fact that he responded to a show-cause notice cannot clothe the enquiry with legality and the report is impermissible material to injure the respondent with a punitive termination. The reliance on the enquiry report by the University to take a hostile decision on July 7, 1970, is illegal. The University Council could not act to his prejudice on the strength of damaging report which had no force. We are, therefore, clear in our minds that the termination of the services of the respondent was stricken by the vice of statutory violation. The respondent is perfectly right in contending that he has been considerably damnified in his standing and reputation by this order of the University. We, are therefore, inclined to the view that while the respondent has no right to continue in the University, the termination of his services, as per annexure, A, is invalid. It is no use the University contending that its order is innocuous. It is clear that its annexure A carries a stigma with it since it expresses "the unanimous conclusion that the ... charges have been established against him" and the termination itself is founded on the guilt so made out. We, therefore, declare that Annexure A is void but further hold that the respondent has no right to continue in service and the direction to him that he should leave his post as Professor and Head of the Post Graduate History Department is good. The High Courts order of reinstatement is quashed.
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### Explanation:
much even the respondent has reconciled himself to, and the High Court hasis true that de facto the respondent functioned as Professor, drew salary as such, became a member of the Academic Council in that capacity and was treated as on extended probation by theIn view of these habiliments of professoriate the High Court assumed the premise that the respondent was "admittedly in the employment of the University of Kashmir on the relevant date" and proceeded to essay the next problem which it posed in thesethe only body competent to appoint a professor, like the respondent, is the University Council, and even the Council shall make such appointments only on the recommendation of the Selection Committee created by S. 36. There is no case that the Selection Committee ever considered or recommended the respondent for appointment and there is no suggestion that the University Council appointed the respondent as professor. If follows that the only statutory authority empowered in this behalf has not appointed the respondent to the post claimed by him. There is an interim power vested in thehedged in with limitations, as is contained in the third proviso to S. 22 (f). He may make appointments of teachers as a temporary measure for periods not exceeding six months to carry on the work, and if the Selection Committees recommendation is not received within that time he may extend the appointment for the duration of the academic session with the approval of the University Council.There has been no exercise of the narrow power of theunder this proviso and the conclusion is irresistible that the continuance of the respondent on the expiration of the statutory two months period cannot be legitimated by law. Of course, he remained to teach and was paid for his work. He did many other things which a legally appointed professor would do, with the full knowledge and even at the request of theMay be, he, theand others in the University were perhaps not keeping themselves abreast of the law. But the fatal fact remains that the Chancellor did not extend the services of the respondent as contemplated by S. 52(4), and this failure finishes the plea of continuance in office of the professor.We are not concerned with the administrativefrom this finding although the salary of the teacher appears to have been sanctioned by thea place of conduct which may be understandable on equitable grounds.The circumstances that the respondent functioned in the University does not vest in him the legal status of a validity appointed employee with all the protection that the Act and the relevant statutes give to such a person. In this view of thewithout more, the respondents work on the University campus can be brought to a close.No case of statutory termination of service is called for,the basis of statutory employment being absent. The ad hoc arrangement by which he remained to teach did not acquire legal validity merely because thewent through the irregular exercises of extending his probation, etc. We have to hold that the curtain fell on the office held by the respondent when, at the end of 60 days after the Act, the sands of time ran out.8. The ground urged successfully, as it were, before the High Court, of an implied engagement cannot, in our view, be sustained. When a statute creates a body and vests it with authority and circumscribes its powers by specifying limitations, the doctrine of implied engagement de hors the provisions and powers under the Act would be subversive of the statutory scheme regarding appointments of officers and cannot be countenanced by the Court. Power in this case has been vested in the University Council only and the manner of its exercise has been carefully regulated. Therefore, the appointment of the respondent could be made only by the Council and only in the mode prescribed by the statute. If aby administrative drift allows such employment it cannot be validated on any theory of factum valet.We cannot countenance the alleged continuance of the respondent in the University campus as tantamount to regular service under the University with the sanction of law. In short, the respondent has no presentable case against the direction to quit.9. Even so, there are certain disquieting features in this case. The Additional Solicitor General fairly concedes that there was no provision in the 1969 Act which would continue or validate the enquiry commenced against the respondent by Jammu and Kashmir University created by the 1965 Act.If so, the enquiry report alls to the groundthe respondent. The fact that he responded to anotice cannot clothe the enquiry with legality and the report is impermissible material to injure the respondent with a punitive termination. The reliance on the enquiry report by the University to take a hostile decision on July 7, 1970, is illegal. The University Council could not act to his prejudice on the strength of damaging report which had no force. We are, therefore, clear in our minds that the termination of the services of the respondent was stricken by the vice of statutory violation. The respondent is perfectly right in contending that he has been considerably damnified in his standing and reputation by this order of the University. We, are therefore, inclined to the view that while the respondent has no right to continue in the University, the termination of his services, as per annexure, A, is invalid. It is no use the University contending that its order is innocuous. It is clear that its annexure A carries a stigma with it since it expresses "the unanimous conclusion that the ... charges have been established against him" and the termination itself is founded on the guilt so made out. We, therefore, declare that Annexure A is void but further hold that the respondent has no right to continue in service and the direction to him that he should leave his post as Professor and Head of the Post Graduate History Department is good. The High Courts order of reinstatement is quashed.
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NORTHERN WESTERN RAILWAY & ANR Vs. SANJAY SHUKLA | by the respondent herein and directing the Northern Western Railway and another to pay to the complainant – respondent herein Rs. 15,000/- for taxi expenses, Rs.10,000/- towards booking expenses along with Rs. 5,000/- each towards mental agony and litigation expenses, the original respondents – Northern Western Railway and another have preferred the present special leave petition. 2. That the respondent herein booked four tickets for his family including himself from the Northern Western Railway in Ajmer Jammu Express Train No. 12413 for the journey from Kishangarh to Jammu Tawi on 10.06.2016. He also further booked return reserved tickets from the same train for 17.06.2016. The said train after starting from Ajmer had to reach Jammu Tawi at 8:10 a.m. in the morning on 11.06.2016. As per the case of the respondent, he had to take flight at 12:00 noon from Jammu to Srinagar in SpiceJet, which was to be landed at Srinagar at 12:15 p.m. But the said train did not reach in time and it was delayed by four hours and reached Jammu at 12:00 noon. Since the Jammu Airport was at a far distance from Jammu Railway Station and they had to reach the airport at least two hours prior to the departure of the flight, they could not reach in time and missed the flight. That thereafter the respondent booked private taxi and reached Srinagar. Therefore, the respondent herein – original complainant filed a complaint before the District Forum against the petitioners herein being Complaint Case No. 993 of 2016 and claimed loss of Rs. 9,000/- as air fare, Rs. 15,000/- towards taxi hire charges for going from Jammu to Srinagar, Rs. 10,000/- on account of booking of boat in Dal Lake. The aforesaid claim petition was opposed by the petitioners herein. 3. That the learned District Forum by order dated 14.09.2017 allowed the complaint by observing that there was a deficiency in service and because of that the complainant – respondent herein suffered. The District Forum directed the petitioners to pay to the complainant Rs. 25,000/- as compensation, Rs. 5,000/- each towards mental agony and litigation charges within one month from the date of the order, failing which the complainant would be entitled to 9% simple interest. The order passed by the District Forum came to be confirmed by the State Commission in an appeal and thereafter by the National Commission by the impugned judgment and order passed in the revision petition. 4. Ms. Aishwarya Bhati, learned Additional Solicitor General has vehemently submitted that late running of train cannot be said to be deficiency in service on the part of the railways. It is submitted that in view of Rule 114 and Rule 115 of the Indian Railway Conference Association Coaching Tariff No. 26 Part-I (Volume-I), there shall not be any liability of the railways to pay compensation for late running of train. It is submitted that there may be number of reasons for delay and late running of train. 5. Having heard Ms. Aishwarya Bhati, learned ASG and having gone through and considered the orders passed by the District Forum confirmed by the State Commission and the National Commission, we are of the opinion that in the facts and circumstances of the case, the impugned orders awarding compensation to the complainant do not warrant any interference by this Court. 6. It is not in dispute that there was a delay in the arrival of the Ajmer Jammu Express Train by four hours. As per the scheduled time, the train was to reach at Jammu Tawi at 8:10 a.m. in the morning on 11.06.2016. However, it reached Jammu Tawi at 12:00 noon. Considering the time schedule fixed by the railways that the trail will reach Jammu Tawi at 8:10 a.m. in the morning, the complainant booked the connecting flight from Jammu to Srinagar, which was to take off at 12:00 noon. Because the train reached Jammu Tawi by delay of four hours at 12:00 noon instead of its scheduled time of arrival at 8:10 a.m., the complainant missed the flight from Jammu to Srinagar. The complainant was required to travel to Srinagar by taxi. The complainant also suffered loss of Rs. 9,000/- as air fare. The complainant was required to pay Rs.15,000/- towards taxi hire charges and also loss of Rs. 10,000/- on account of booking of boat in Dal Lake. No evidence at all was led by the railways explaining the delay and/or late arrival of train at Jammu. The railways were required to lead the evidence and explain the late arrival of train to establish and prove that delay occurred because of the reasons beyond their control. At least the railways were required to explain the delay which the railways failed. It cannot be disputed that every passengers time is precious and they might have booked the tickets for further journey, like in the present case from Jammu to Srinagar and thereafter further journey. Therefore, unless and until the evidence is laid explaining the delay and it is established and proved that delay occurred which was beyond their control and/or even there was some justification for delay, the railway is liable to pay the compensation for delay and late arrival of trains. Therefore, in the facts and circumstances of the case and in the absence of any evidence led to explain the delay, the District Forum, the State Commission and the National Commission have rightly observed and held that there was deficiency in service and therefore the railway is liable to pay the compensation to the passenger – complainant for the loss suffered and for the agony suffered. These are the days of competition and accountability. If the public transportation has to survive and compete with private players, they have to improve the system and their working culture. Citizen/passenger cannot be at the the mercy of the authorities/administration. Somebody has to accept the responsibility. No interference of this Court is called for, in exercise of powers under Article 136 of the Constitution of India. | 0[ds]5. Having heard Ms. Aishwarya Bhati, learned ASG and having gone through and considered the orders passed by the District Forum confirmed by the State Commission and the National Commission, we are of the opinion that in the facts and circumstances of the case, the impugned orders awarding compensation to the complainant do not warrant any interference by this Court.6. It is not in dispute that there was a delay in the arrival of the Ajmer Jammu Express Train by four hours. As per the scheduled time, the train was to reach at Jammu Tawi at 8:10 a.m. in the morning on 11.06.2016. However, it reached Jammu Tawi at 12:00 noon. Considering the time schedule fixed by the railways that the trail will reach Jammu Tawi at 8:10 a.m. in the morning, the complainant booked the connecting flight from Jammu to Srinagar, which was to take off at 12:00 noon. Because the train reached Jammu Tawi by delay of four hours at 12:00 noon instead of its scheduled time of arrival at 8:10 a.m., the complainant missed the flight from Jammu to Srinagar. The complainant was required to travel to Srinagar by taxi. The complainant also suffered loss of Rs. 9,000/- as air fare. The complainant was required to pay Rs.15,000/- towards taxi hire charges and also loss of Rs. 10,000/- on account of booking of boat in Dal Lake. No evidence at all was led by the railways explaining the delay and/or late arrival of train at Jammu. The railways were required to lead the evidence and explain the late arrival of train to establish and prove that delay occurred because of the reasons beyond their control. At least the railways were required to explain the delay which the railways failed. It cannot be disputed that every passengers time is precious and they might have booked the tickets for further journey, like in the present case from Jammu to Srinagar and thereafter further journey. Therefore, unless and until the evidence is laid explaining the delay and it is established and proved that delay occurred which was beyond their control and/or even there was some justification for delay, the railway is liable to pay the compensation for delay and late arrival of trains. Therefore, in the facts and circumstances of the case and in the absence of any evidence led to explain the delay, the District Forum, the State Commission and the National Commission have rightly observed and held that there was deficiency in service and therefore the railway is liable to pay the compensation to the passenger – complainant for the loss suffered and for the agony suffered. These are the days of competition and accountability. If the public transportation has to survive and compete with private players, they have to improve the system and their working culture. Citizen/passenger cannot be at the the mercy of the authorities/administration. Somebody has to accept the responsibility. No interference of this Court is called for, in exercise of powers under Article 136 of the Constitution of India. | 0 | 1,207 | 550 | ### Instruction:
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by the respondent herein and directing the Northern Western Railway and another to pay to the complainant – respondent herein Rs. 15,000/- for taxi expenses, Rs.10,000/- towards booking expenses along with Rs. 5,000/- each towards mental agony and litigation expenses, the original respondents – Northern Western Railway and another have preferred the present special leave petition. 2. That the respondent herein booked four tickets for his family including himself from the Northern Western Railway in Ajmer Jammu Express Train No. 12413 for the journey from Kishangarh to Jammu Tawi on 10.06.2016. He also further booked return reserved tickets from the same train for 17.06.2016. The said train after starting from Ajmer had to reach Jammu Tawi at 8:10 a.m. in the morning on 11.06.2016. As per the case of the respondent, he had to take flight at 12:00 noon from Jammu to Srinagar in SpiceJet, which was to be landed at Srinagar at 12:15 p.m. But the said train did not reach in time and it was delayed by four hours and reached Jammu at 12:00 noon. Since the Jammu Airport was at a far distance from Jammu Railway Station and they had to reach the airport at least two hours prior to the departure of the flight, they could not reach in time and missed the flight. That thereafter the respondent booked private taxi and reached Srinagar. Therefore, the respondent herein – original complainant filed a complaint before the District Forum against the petitioners herein being Complaint Case No. 993 of 2016 and claimed loss of Rs. 9,000/- as air fare, Rs. 15,000/- towards taxi hire charges for going from Jammu to Srinagar, Rs. 10,000/- on account of booking of boat in Dal Lake. The aforesaid claim petition was opposed by the petitioners herein. 3. That the learned District Forum by order dated 14.09.2017 allowed the complaint by observing that there was a deficiency in service and because of that the complainant – respondent herein suffered. The District Forum directed the petitioners to pay to the complainant Rs. 25,000/- as compensation, Rs. 5,000/- each towards mental agony and litigation charges within one month from the date of the order, failing which the complainant would be entitled to 9% simple interest. The order passed by the District Forum came to be confirmed by the State Commission in an appeal and thereafter by the National Commission by the impugned judgment and order passed in the revision petition. 4. Ms. Aishwarya Bhati, learned Additional Solicitor General has vehemently submitted that late running of train cannot be said to be deficiency in service on the part of the railways. It is submitted that in view of Rule 114 and Rule 115 of the Indian Railway Conference Association Coaching Tariff No. 26 Part-I (Volume-I), there shall not be any liability of the railways to pay compensation for late running of train. It is submitted that there may be number of reasons for delay and late running of train. 5. Having heard Ms. Aishwarya Bhati, learned ASG and having gone through and considered the orders passed by the District Forum confirmed by the State Commission and the National Commission, we are of the opinion that in the facts and circumstances of the case, the impugned orders awarding compensation to the complainant do not warrant any interference by this Court. 6. It is not in dispute that there was a delay in the arrival of the Ajmer Jammu Express Train by four hours. As per the scheduled time, the train was to reach at Jammu Tawi at 8:10 a.m. in the morning on 11.06.2016. However, it reached Jammu Tawi at 12:00 noon. Considering the time schedule fixed by the railways that the trail will reach Jammu Tawi at 8:10 a.m. in the morning, the complainant booked the connecting flight from Jammu to Srinagar, which was to take off at 12:00 noon. Because the train reached Jammu Tawi by delay of four hours at 12:00 noon instead of its scheduled time of arrival at 8:10 a.m., the complainant missed the flight from Jammu to Srinagar. The complainant was required to travel to Srinagar by taxi. The complainant also suffered loss of Rs. 9,000/- as air fare. The complainant was required to pay Rs.15,000/- towards taxi hire charges and also loss of Rs. 10,000/- on account of booking of boat in Dal Lake. No evidence at all was led by the railways explaining the delay and/or late arrival of train at Jammu. The railways were required to lead the evidence and explain the late arrival of train to establish and prove that delay occurred because of the reasons beyond their control. At least the railways were required to explain the delay which the railways failed. It cannot be disputed that every passengers time is precious and they might have booked the tickets for further journey, like in the present case from Jammu to Srinagar and thereafter further journey. Therefore, unless and until the evidence is laid explaining the delay and it is established and proved that delay occurred which was beyond their control and/or even there was some justification for delay, the railway is liable to pay the compensation for delay and late arrival of trains. Therefore, in the facts and circumstances of the case and in the absence of any evidence led to explain the delay, the District Forum, the State Commission and the National Commission have rightly observed and held that there was deficiency in service and therefore the railway is liable to pay the compensation to the passenger – complainant for the loss suffered and for the agony suffered. These are the days of competition and accountability. If the public transportation has to survive and compete with private players, they have to improve the system and their working culture. Citizen/passenger cannot be at the the mercy of the authorities/administration. Somebody has to accept the responsibility. No interference of this Court is called for, in exercise of powers under Article 136 of the Constitution of India.
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5. Having heard Ms. Aishwarya Bhati, learned ASG and having gone through and considered the orders passed by the District Forum confirmed by the State Commission and the National Commission, we are of the opinion that in the facts and circumstances of the case, the impugned orders awarding compensation to the complainant do not warrant any interference by this Court.6. It is not in dispute that there was a delay in the arrival of the Ajmer Jammu Express Train by four hours. As per the scheduled time, the train was to reach at Jammu Tawi at 8:10 a.m. in the morning on 11.06.2016. However, it reached Jammu Tawi at 12:00 noon. Considering the time schedule fixed by the railways that the trail will reach Jammu Tawi at 8:10 a.m. in the morning, the complainant booked the connecting flight from Jammu to Srinagar, which was to take off at 12:00 noon. Because the train reached Jammu Tawi by delay of four hours at 12:00 noon instead of its scheduled time of arrival at 8:10 a.m., the complainant missed the flight from Jammu to Srinagar. The complainant was required to travel to Srinagar by taxi. The complainant also suffered loss of Rs. 9,000/- as air fare. The complainant was required to pay Rs.15,000/- towards taxi hire charges and also loss of Rs. 10,000/- on account of booking of boat in Dal Lake. No evidence at all was led by the railways explaining the delay and/or late arrival of train at Jammu. The railways were required to lead the evidence and explain the late arrival of train to establish and prove that delay occurred because of the reasons beyond their control. At least the railways were required to explain the delay which the railways failed. It cannot be disputed that every passengers time is precious and they might have booked the tickets for further journey, like in the present case from Jammu to Srinagar and thereafter further journey. Therefore, unless and until the evidence is laid explaining the delay and it is established and proved that delay occurred which was beyond their control and/or even there was some justification for delay, the railway is liable to pay the compensation for delay and late arrival of trains. Therefore, in the facts and circumstances of the case and in the absence of any evidence led to explain the delay, the District Forum, the State Commission and the National Commission have rightly observed and held that there was deficiency in service and therefore the railway is liable to pay the compensation to the passenger – complainant for the loss suffered and for the agony suffered. These are the days of competition and accountability. If the public transportation has to survive and compete with private players, they have to improve the system and their working culture. Citizen/passenger cannot be at the the mercy of the authorities/administration. Somebody has to accept the responsibility. No interference of this Court is called for, in exercise of powers under Article 136 of the Constitution of India.
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M/S Sethi Auto Service Station Vs. Delhi Development Authority | amounts to an abuse of power. The court must not usurp the discretion of the public authority which is empowered to take the decisions under law and the court is expected to apply an objective standard which leaves to the deciding authority the full range of choice which the legislature is presumed to have intended. Even in a case where the decision is left entirely to the discretion of the deciding authority without any such legal bounds and if the decision is taken fairly and objectively, the court will not interfere on the ground of procedural fairness to a person whose interest based on legitimate expectation might be affected. Therefore, a legitimate expectation can at the most be one of the grounds which may give rise to judicial review but the granting of relief is very much limited. [Vide Hindustan Development Corporation (supra)] 28. Bearing in mind the aforestated legal position, we may now advert to the facts at hand. In the light of the factual scenario noted above, the short question arising for determination is whether rejection of appellants claim for resitement on the basis of the revised policy of the year 2003, their substantive legitimate expectation of being considered under the old policy of 1999 has been defeated? 29. In order to adjudicate upon the controversy, it would be necessary to briefly refer to the two policies being pressed into service by the rival parties. In the guidelines issued in 1999, the relevant eligibility criteria was in the following terms: "iv) The resitement sought due to reduction in sale on account of any planned scheme/project may be entertained by DDA, provided it is referred by an Oil Company/Ministry mentioning that the sale level is below the prescribed limit and petrol pump is not feasible in its existing location." 30. According to the said guidelines, a request for resitement on the ground of reduction in sales level below the prescribed limit could be entertained by the DDA provided the proposal was referred by the oil company or the Ministry. The parties are ad-idem that the cases of both the appellants for relocation were recommended by the two Oil Companies, viz., IOC and HPCL, on account of expected fall in sales because of the construction of the flyover and grid separator. However, before a final decision on the representation of the appellants could be taken, the policy of the DDA underwent revision in the year 2003. The criterion for allotment of land by the DDA for resitement of existing petrol pumps was changed. Under the revised policy, dated 20th June, 2003, a case for resitement could be considered by the DDA only under the following circumstances: "A. Resitement:1) Resitement will be made only when the existing petrol pump/gas godown site is utilized for a planned project/scheme which directly necessitates the closing down of the petrol pump/gas godown site. No resitement will be made on any other grounds. As the petrol pumps will be disposed on annual Licence fee basis rather than on upfront payment, if an allottee does not find the business lucrative due to certain other reasons, he can always chose to surrender the site.2) In all cases of resitement, the existing rates for the new site will be charged and the possession of the old site will be handed over to DDA.3) The alternative site will be allotted through computerized draw from the available sites. For holding the draw at least 3 sites must be available on the date of holding the draw." 31.It is plain that under the new policy resitement of a petrol pump etc. is possible only when the existing petrol pump is utilized for a planned project/scheme, which directly necessitates the closing down of the petrol pump. Under the new policy, resitement on account of fall in sales etc. is not contemplated. In fact, resitement on any other ground is specifically ruled out. It is also evident from the new policy that in the event of DDA permitting resitement, the possession of the old site has to be delivered to the DDA, which presupposes that the old site was also allotted by the DDA. As noted above, the existing sites on which the two petrol pumps in question are operating were allotted by the Airport Authority of India and not by the DDA. 32. Having bestowed our anxious consideration to the facts in hand, in our judgment, the doctrine of legitimate expectation, as explained above, is not attracted in the instant case. It is manifest that even under the 1999 policy, on which the entire edifice of appellants substantive expectation of getting alternative land for resitement is built does not cast any obligation upon the DDA to relocate the petrol pumps. The said policy merely laid down a criterion for relocation and not a mandate that under the given circumstances the DDA was obliged to provide land for the said purpose. Therefore, at best the appellants had an expectation of being considered for resitement. Their cases were duly considered, favourable recommendations were also made but by the time the final decision-making authority considered the matter, the policy underwent a change and the cases of the appellants did not meet the new criteria for allotment laid down in the new policy. We are convinced that apart from the fact that there is no challenge to the new policy, which seems to have been conceived in public interest in the light of the changed economic scenario and liberalized regime of permitting private companies to set up petrol outlets, the decision of the DDA in declining to allot land for resitement of petrol pumps, a matter of largesse, cannot be held to be arbitrary or unreasonable warranting interference. Moreover, with the change in policy, any direction in favour of the appellants in this regard would militate against the new policy of 2003. In our opinion, therefore, the principle of legitimate expectation has no application to the facts at hand. 33. In view of the foregoing discussion, the | 0[ds]Having bestowed our anxious consideration to the facts in hand, in our judgment, the doctrine of legitimate expectation, as explained above, is not attracted in the instant case. It is manifest that even under the 1999 policy, on which the entire edifice of appellants substantive expectation of getting alternative land for resitement is built does not cast any obligation upon the DDA to relocate the petrol pumps. The said policy merely laid down a criterion for relocation and not a mandate that under the given circumstances the DDA was obliged to provide land for the said purpose. Therefore, at best the appellants had an expectation of being considered for resitement. Their cases were duly considered, favourable recommendations were also made but by the time the final decision-making authority considered the matter, the policy underwent a change and the cases of the appellants did not meet the new criteria for allotment laid down in the new policy. We are convinced that apart from the fact that there is no challenge to the new policy, which seems to have been conceived in public interest in the light of the changed economic scenario and liberalized regime of permitting private companies to set up petrol outlets, the decision of the DDA in declining to allot land for resitement of petrol pumps, a matter of largesse, cannot be held to be arbitrary or unreasonable warranting interference. Moreover, with the change in policy, any direction in favour of the appellants in this regard would militate against the new policy of 2003. In our opinion, therefore, the principle of legitimate expectation has no application to the facts at hand. | 0 | 6,039 | 301 | ### 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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amounts to an abuse of power. The court must not usurp the discretion of the public authority which is empowered to take the decisions under law and the court is expected to apply an objective standard which leaves to the deciding authority the full range of choice which the legislature is presumed to have intended. Even in a case where the decision is left entirely to the discretion of the deciding authority without any such legal bounds and if the decision is taken fairly and objectively, the court will not interfere on the ground of procedural fairness to a person whose interest based on legitimate expectation might be affected. Therefore, a legitimate expectation can at the most be one of the grounds which may give rise to judicial review but the granting of relief is very much limited. [Vide Hindustan Development Corporation (supra)] 28. Bearing in mind the aforestated legal position, we may now advert to the facts at hand. In the light of the factual scenario noted above, the short question arising for determination is whether rejection of appellants claim for resitement on the basis of the revised policy of the year 2003, their substantive legitimate expectation of being considered under the old policy of 1999 has been defeated? 29. In order to adjudicate upon the controversy, it would be necessary to briefly refer to the two policies being pressed into service by the rival parties. In the guidelines issued in 1999, the relevant eligibility criteria was in the following terms: "iv) The resitement sought due to reduction in sale on account of any planned scheme/project may be entertained by DDA, provided it is referred by an Oil Company/Ministry mentioning that the sale level is below the prescribed limit and petrol pump is not feasible in its existing location." 30. According to the said guidelines, a request for resitement on the ground of reduction in sales level below the prescribed limit could be entertained by the DDA provided the proposal was referred by the oil company or the Ministry. The parties are ad-idem that the cases of both the appellants for relocation were recommended by the two Oil Companies, viz., IOC and HPCL, on account of expected fall in sales because of the construction of the flyover and grid separator. However, before a final decision on the representation of the appellants could be taken, the policy of the DDA underwent revision in the year 2003. The criterion for allotment of land by the DDA for resitement of existing petrol pumps was changed. Under the revised policy, dated 20th June, 2003, a case for resitement could be considered by the DDA only under the following circumstances: "A. Resitement:1) Resitement will be made only when the existing petrol pump/gas godown site is utilized for a planned project/scheme which directly necessitates the closing down of the petrol pump/gas godown site. No resitement will be made on any other grounds. As the petrol pumps will be disposed on annual Licence fee basis rather than on upfront payment, if an allottee does not find the business lucrative due to certain other reasons, he can always chose to surrender the site.2) In all cases of resitement, the existing rates for the new site will be charged and the possession of the old site will be handed over to DDA.3) The alternative site will be allotted through computerized draw from the available sites. For holding the draw at least 3 sites must be available on the date of holding the draw." 31.It is plain that under the new policy resitement of a petrol pump etc. is possible only when the existing petrol pump is utilized for a planned project/scheme, which directly necessitates the closing down of the petrol pump. Under the new policy, resitement on account of fall in sales etc. is not contemplated. In fact, resitement on any other ground is specifically ruled out. It is also evident from the new policy that in the event of DDA permitting resitement, the possession of the old site has to be delivered to the DDA, which presupposes that the old site was also allotted by the DDA. As noted above, the existing sites on which the two petrol pumps in question are operating were allotted by the Airport Authority of India and not by the DDA. 32. Having bestowed our anxious consideration to the facts in hand, in our judgment, the doctrine of legitimate expectation, as explained above, is not attracted in the instant case. It is manifest that even under the 1999 policy, on which the entire edifice of appellants substantive expectation of getting alternative land for resitement is built does not cast any obligation upon the DDA to relocate the petrol pumps. The said policy merely laid down a criterion for relocation and not a mandate that under the given circumstances the DDA was obliged to provide land for the said purpose. Therefore, at best the appellants had an expectation of being considered for resitement. Their cases were duly considered, favourable recommendations were also made but by the time the final decision-making authority considered the matter, the policy underwent a change and the cases of the appellants did not meet the new criteria for allotment laid down in the new policy. We are convinced that apart from the fact that there is no challenge to the new policy, which seems to have been conceived in public interest in the light of the changed economic scenario and liberalized regime of permitting private companies to set up petrol outlets, the decision of the DDA in declining to allot land for resitement of petrol pumps, a matter of largesse, cannot be held to be arbitrary or unreasonable warranting interference. Moreover, with the change in policy, any direction in favour of the appellants in this regard would militate against the new policy of 2003. In our opinion, therefore, the principle of legitimate expectation has no application to the facts at hand. 33. In view of the foregoing discussion, the
### Response:
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### Explanation:
Having bestowed our anxious consideration to the facts in hand, in our judgment, the doctrine of legitimate expectation, as explained above, is not attracted in the instant case. It is manifest that even under the 1999 policy, on which the entire edifice of appellants substantive expectation of getting alternative land for resitement is built does not cast any obligation upon the DDA to relocate the petrol pumps. The said policy merely laid down a criterion for relocation and not a mandate that under the given circumstances the DDA was obliged to provide land for the said purpose. Therefore, at best the appellants had an expectation of being considered for resitement. Their cases were duly considered, favourable recommendations were also made but by the time the final decision-making authority considered the matter, the policy underwent a change and the cases of the appellants did not meet the new criteria for allotment laid down in the new policy. We are convinced that apart from the fact that there is no challenge to the new policy, which seems to have been conceived in public interest in the light of the changed economic scenario and liberalized regime of permitting private companies to set up petrol outlets, the decision of the DDA in declining to allot land for resitement of petrol pumps, a matter of largesse, cannot be held to be arbitrary or unreasonable warranting interference. Moreover, with the change in policy, any direction in favour of the appellants in this regard would militate against the new policy of 2003. In our opinion, therefore, the principle of legitimate expectation has no application to the facts at hand.
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JAIPUR METALS AND ELECTRICALS EMPLOYEES ORGANIZATION THRU GENERAL SECRETARY MR. TEJ RAM MEENA Vs. JAIPUR METALS AND ELECTRICALS LTD. THRU ITS MANAGING DIRECTOR | has not been served on the respondents, shall be transferred to the NCLT. Only such petitions will continue to be treated as petitions under the provisions of the Companies Act, 2013. The third category of cases dealt with by Rules 5 and 6 is contained in Rule 5(2). This category relates to cases where the BIFR has forwarded an opinion to the High Court to wind up a company under Section 20 of the SIC Act. All such cases, whatever be the stage, shall continue to be dealt with by the High Court in accordance with the provisions of the SIC Act. 14. It is clear that the present case relates to Rule 5(2) alone. Despite the fact that Section 20 of the SIC Act speaks of a company being wound up under the Companies Act, 1956 under the just and equitable provision, which is Section 433(f) of the Companies Act, 1956, yet, since cases that fall under Section 20 of the SIC Act are dealt with separately under Rule 5(2), they cannot be treated as petitions that have been filed under Section 433(f) of the Companies Act, 1956, which are separately specified under Rule 6. The High Court is therefore not correct in treating petitions that are pursuant to Section 20 of the SIC Act as being pursuant to Section 433(f) of the Companies Act, 1956 and applying Rule 6 of the 2016 Transfer Rules. 15. However, though the language of Rule 5(2) is plain enough, it has been argued before us that Rule 5 was substituted on 29.06.2017, as a result of which, Rule 5(2) has been omitted. The effect of the omission of Rule 5(2) is not to automatically transfer all cases under Section 20 of the SIC Act to the NCLT, as otherwise, a specific rule would have to be framed transferring such cases to the NCLT, as has been done in Rule 5(1). The real reason for omission of Rule 5(2) in the substituted Rule 5 is because it is necessary to state, only once, on the repeal of the SIC Act, that proceedings under Section 20 of the SIC Act shall continue to be dealt with by the High Court. It was unnecessary to continue Rule 5(2) even after 29.06.2017 as on 15.12.2016, all pending cases under Section 20 of the SIC Act were to continue to be dealt with by the High Court before which such cases were pending. Since there could be no opinion by the BIFR under Section 20 of the SIC Act after 01.12.2016, when the SIC Act was repealed, it was unnecessary to continue Rule 5(2) as, on 15.12.2016, all pending proceedings under Section 20 of the SIC Act were to continue with the High Court and would continue even thereafter. This is further made clear by the amendment to Section 434(1)(c), with effect from 17.08.2018, where any party to a winding up proceeding pending before a Court immediately before this date may file an application for transfer of such proceedings, and the Court, at that stage, may, by order, transfer such proceedings to the NCLT. The proceedings so transferred would then be dealt with by the NCLT as an application for initiation of the corporate insolvency resolution process under the Code. It is thus clear that under the scheme of Section 434 (as amended) and Rule 5 of the 2016 Transfer Rules, all proceedings under Section 20 of the SIC Act pending before the High Court are to continue as such until a party files an application before the High Court for transfer of such proceedings post 17.08.2018. Once this is done, the High Court must transfer such proceedings to the NCLT which will then deal with such proceedings as an application for initiation of the corporate insolvency resolution process under the Code. 16. The High Court judgment, therefore, though incorrect in applying Rule 6 of the 2016 Transfer Rules, can still be supported on this aspect with a reference to Rule 5(2) read with Section 434 of the Companies Act, 2013, as amended, with effect from 17.08.2018. 17. However, this does not end the matter. It is clear that Respondent No. 3 has filed a Section 7 application under the Code on 11.01.2018, on which an order has been passed admitting such application by the NCLT on 13.04.2018. This proceeding is an independent proceeding which has nothing to do with the transfer of pending winding up proceedings before the High Court. It was open for Respondent No. 3 at any time before a winding up order is passed to apply under Section 7 of the Code. This is clear from a reading of Section 7 together with Section 238 of the Code which reads as follows: ?238. Provisions of this Code to override other laws.—The provisions of this Code shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law.? 18. Shri Dave?s ingenious argument that since Section 434 of the Companies Act, 2013 is amended by the Eleventh Schedule of the Code, the amended Section 434 must be read as being part of the Code and not the Companies Act, 2013, must be rejected for the reason that though Section 434 of the Companies Act, 2013 is substituted by the Eleventh Schedule of the Code, yet Section 434, as substituted, appears only in the Companies Act, 2013 and is part and parcel of that Act. This being so, if there is any inconsistency between Section 434 as substituted and the provisions of the Code, the latter must prevail. We are of the view that the NCLT was absolutely correct in applying Section 238 of the Code to an independent proceeding instituted by a secured financial creditor, namely, the Alchemist Asset Reconstruction Company Ltd. This being the case, it is difficult to comprehend how the High Court could have held that the proceedings before the NCLT were without jurisdiction. | 1[ds]Be that as it may, since this SLP raises important questions of law which need to be decided at the earliest, we have disregarded this preliminary objection.It is clear that under Section 434 as substituted by the Eleventh Schedule to the Code vide notification dated 15.11.2016, all proceedings under the Companies Act, 2013 which relate to winding up of companies and which are pending immediately before such date as may be notified by the Central Government in this behalf shall stand transferred to the NCLT. The stage at which such proceedings are to be transferred to the NCLT is such as may be prescribed by the Central Government.When Rules 5 and 6 of the 2016 Transfer Rules (unamended) are read, it is clear that three types of proceedings are referred to. Under Rule 5(1), petitions which relate to winding up under clause (e) of Section 433 of the Companies Act, 1956 on the ground of inability to pay debts that are pending before the High Court are to be transferred to the NCLT in case the petition has not been served on the respondent. They shall then be treated as applications under Sections 7, 8, or 9 of the Code and dealt with in accordance with Part II of the Code. Similarly, all petitions filed under clauses (a) and (f) of Section 433 of the Companies Act, 1956 pending before the High Court, in which the petition has not been served on the respondents, shall be transferred to the NCLT. Only such petitions will continue to be treated as petitions under the provisions of the Companies Act, 2013. The third category of cases dealt with by Rules 5 and 6 is contained in Rule 5(2). This category relates to cases where the BIFR has forwarded an opinion to the High Court to wind up a company under Section 20 of the SIC Act. All such cases, whatever be the stage, shall continue to be dealt with by the High Court in accordance with the provisions of the SIC Act.It is clear that the present case relates to Rule 5(2) alone. Despite the fact that Section 20 of the SIC Act speaks of a company being wound up under the Companies Act, 1956 under the just and equitable provision, which is Section 433(f) of the Companies Act, 1956, yet, since cases that fall under Section 20 of the SIC Act are dealt with separately under Rule 5(2), they cannot be treated as petitions that have been filed under Section 433(f) of the Companies Act, 1956, which are separately specified under Rule 6. The High Court is therefore not correct in treating petitions that are pursuant to Section 20 of the SIC Act as being pursuant to Section 433(f) of the Companies Act, 1956 and applying Rule 6 of the 2016 Transfer Rules.However, though the language of Rule 5(2) is plain enough, it has been argued before us that Rule 5 was substituted on 29.06.2017, as a result of which, Rule 5(2) has been omitted. The effect of the omission of Rule 5(2) is not to automatically transfer all cases under Section 20 of the SIC Act to the NCLT, as otherwise, a specific rule would have to be framed transferring such cases to the NCLT, as has been done in Rule 5(1). The real reason for omission of Rule 5(2) in the substituted Rule 5 is because it is necessary to state, only once, on the repeal of the SIC Act, that proceedings under Section 20 of the SIC Act shall continue to be dealt with by the High Court. It was unnecessary to continue Rule 5(2) even after29.06.2017 as on 15.12.2016, all pending cases under Section 20 of the SIC Act were to continue to be dealt with by the High Court before which such cases were pending. Since there could be no opinion by the BIFR under Section 20 of the SIC Act after 01.12.2016, when the SIC Act was repealed, it was unnecessary to continue Rule 5(2) as, on 15.12.2016, all pending proceedings under Section 20 of the SIC Act were to continue with the High Court and would continue even thereafter. This is further made clear by the amendment to Section 434(1)(c), with effect from 17.08.2018, where any party to a winding up proceeding pending before a Court immediately before this date may file an application for transfer of such proceedings, and the Court, at that stage, may, by order, transfer such proceedings to the NCLT. The proceedings so transferred would then be dealt with by the NCLT as an application for initiation of the corporate insolvency resolution process under the Code. It is thus clear that under the scheme of Section 434 (as amended) and Rule 5 of the 2016 Transfer Rules, all proceedings under Section 20 of the SIC Act pending before the High Court are to continue as such until a party files an application before the High Court for transfer of such proceedings post 17.08.2018. Once this is done, the High Court must transfer such proceedings to the NCLT which will then deal with such proceedings as an application for initiation of the corporate insolvency resolution process under the Code.The High Court judgment, therefore, though incorrect in applying Rule 6 of the 2016 Transfer Rules, can still be supported on this aspect with a reference to Rule 5(2) read with Section 434 of the Companies Act, 2013, as amended, with effect from 17.08.2018.However, this does not end the matter. It is clear that Respondent No. 3 has filed a Section 7 application under the Code on 11.01.2018, on which an order has been passed admitting such application by the NCLT on 13.04.2018. This proceeding is an independent proceeding which has nothing to do with the transfer of pending winding up proceedings before the High Court. It was open for Respondent No. 3 at any time before a winding up order is passed to apply under Section 7 of the Code. This is clear from a reading of Section 7 together with Section 238 of the Code which reads asProvisions of this Code to override other laws.—The provisions of this Code shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any suchare of the view that the NCLT was absolutely correct in applying Section 238 of the Code to an independent proceeding instituted by a secured financial creditor, namely, the Alchemist Asset Reconstruction Company Ltd. This being the case, it is difficult to comprehend how the High Court could have held that the proceedings before the NCLT were without jurisdiction. | 1 | 4,847 | 1,266 | ### Instruction:
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has not been served on the respondents, shall be transferred to the NCLT. Only such petitions will continue to be treated as petitions under the provisions of the Companies Act, 2013. The third category of cases dealt with by Rules 5 and 6 is contained in Rule 5(2). This category relates to cases where the BIFR has forwarded an opinion to the High Court to wind up a company under Section 20 of the SIC Act. All such cases, whatever be the stage, shall continue to be dealt with by the High Court in accordance with the provisions of the SIC Act. 14. It is clear that the present case relates to Rule 5(2) alone. Despite the fact that Section 20 of the SIC Act speaks of a company being wound up under the Companies Act, 1956 under the just and equitable provision, which is Section 433(f) of the Companies Act, 1956, yet, since cases that fall under Section 20 of the SIC Act are dealt with separately under Rule 5(2), they cannot be treated as petitions that have been filed under Section 433(f) of the Companies Act, 1956, which are separately specified under Rule 6. The High Court is therefore not correct in treating petitions that are pursuant to Section 20 of the SIC Act as being pursuant to Section 433(f) of the Companies Act, 1956 and applying Rule 6 of the 2016 Transfer Rules. 15. However, though the language of Rule 5(2) is plain enough, it has been argued before us that Rule 5 was substituted on 29.06.2017, as a result of which, Rule 5(2) has been omitted. The effect of the omission of Rule 5(2) is not to automatically transfer all cases under Section 20 of the SIC Act to the NCLT, as otherwise, a specific rule would have to be framed transferring such cases to the NCLT, as has been done in Rule 5(1). The real reason for omission of Rule 5(2) in the substituted Rule 5 is because it is necessary to state, only once, on the repeal of the SIC Act, that proceedings under Section 20 of the SIC Act shall continue to be dealt with by the High Court. It was unnecessary to continue Rule 5(2) even after 29.06.2017 as on 15.12.2016, all pending cases under Section 20 of the SIC Act were to continue to be dealt with by the High Court before which such cases were pending. Since there could be no opinion by the BIFR under Section 20 of the SIC Act after 01.12.2016, when the SIC Act was repealed, it was unnecessary to continue Rule 5(2) as, on 15.12.2016, all pending proceedings under Section 20 of the SIC Act were to continue with the High Court and would continue even thereafter. This is further made clear by the amendment to Section 434(1)(c), with effect from 17.08.2018, where any party to a winding up proceeding pending before a Court immediately before this date may file an application for transfer of such proceedings, and the Court, at that stage, may, by order, transfer such proceedings to the NCLT. The proceedings so transferred would then be dealt with by the NCLT as an application for initiation of the corporate insolvency resolution process under the Code. It is thus clear that under the scheme of Section 434 (as amended) and Rule 5 of the 2016 Transfer Rules, all proceedings under Section 20 of the SIC Act pending before the High Court are to continue as such until a party files an application before the High Court for transfer of such proceedings post 17.08.2018. Once this is done, the High Court must transfer such proceedings to the NCLT which will then deal with such proceedings as an application for initiation of the corporate insolvency resolution process under the Code. 16. The High Court judgment, therefore, though incorrect in applying Rule 6 of the 2016 Transfer Rules, can still be supported on this aspect with a reference to Rule 5(2) read with Section 434 of the Companies Act, 2013, as amended, with effect from 17.08.2018. 17. However, this does not end the matter. It is clear that Respondent No. 3 has filed a Section 7 application under the Code on 11.01.2018, on which an order has been passed admitting such application by the NCLT on 13.04.2018. This proceeding is an independent proceeding which has nothing to do with the transfer of pending winding up proceedings before the High Court. It was open for Respondent No. 3 at any time before a winding up order is passed to apply under Section 7 of the Code. This is clear from a reading of Section 7 together with Section 238 of the Code which reads as follows: ?238. Provisions of this Code to override other laws.—The provisions of this Code shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law.? 18. Shri Dave?s ingenious argument that since Section 434 of the Companies Act, 2013 is amended by the Eleventh Schedule of the Code, the amended Section 434 must be read as being part of the Code and not the Companies Act, 2013, must be rejected for the reason that though Section 434 of the Companies Act, 2013 is substituted by the Eleventh Schedule of the Code, yet Section 434, as substituted, appears only in the Companies Act, 2013 and is part and parcel of that Act. This being so, if there is any inconsistency between Section 434 as substituted and the provisions of the Code, the latter must prevail. We are of the view that the NCLT was absolutely correct in applying Section 238 of the Code to an independent proceeding instituted by a secured financial creditor, namely, the Alchemist Asset Reconstruction Company Ltd. This being the case, it is difficult to comprehend how the High Court could have held that the proceedings before the NCLT were without jurisdiction.
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### Explanation:
the 2016 Transfer Rules (unamended) are read, it is clear that three types of proceedings are referred to. Under Rule 5(1), petitions which relate to winding up under clause (e) of Section 433 of the Companies Act, 1956 on the ground of inability to pay debts that are pending before the High Court are to be transferred to the NCLT in case the petition has not been served on the respondent. They shall then be treated as applications under Sections 7, 8, or 9 of the Code and dealt with in accordance with Part II of the Code. Similarly, all petitions filed under clauses (a) and (f) of Section 433 of the Companies Act, 1956 pending before the High Court, in which the petition has not been served on the respondents, shall be transferred to the NCLT. Only such petitions will continue to be treated as petitions under the provisions of the Companies Act, 2013. The third category of cases dealt with by Rules 5 and 6 is contained in Rule 5(2). This category relates to cases where the BIFR has forwarded an opinion to the High Court to wind up a company under Section 20 of the SIC Act. All such cases, whatever be the stage, shall continue to be dealt with by the High Court in accordance with the provisions of the SIC Act.It is clear that the present case relates to Rule 5(2) alone. Despite the fact that Section 20 of the SIC Act speaks of a company being wound up under the Companies Act, 1956 under the just and equitable provision, which is Section 433(f) of the Companies Act, 1956, yet, since cases that fall under Section 20 of the SIC Act are dealt with separately under Rule 5(2), they cannot be treated as petitions that have been filed under Section 433(f) of the Companies Act, 1956, which are separately specified under Rule 6. The High Court is therefore not correct in treating petitions that are pursuant to Section 20 of the SIC Act as being pursuant to Section 433(f) of the Companies Act, 1956 and applying Rule 6 of the 2016 Transfer Rules.However, though the language of Rule 5(2) is plain enough, it has been argued before us that Rule 5 was substituted on 29.06.2017, as a result of which, Rule 5(2) has been omitted. The effect of the omission of Rule 5(2) is not to automatically transfer all cases under Section 20 of the SIC Act to the NCLT, as otherwise, a specific rule would have to be framed transferring such cases to the NCLT, as has been done in Rule 5(1). The real reason for omission of Rule 5(2) in the substituted Rule 5 is because it is necessary to state, only once, on the repeal of the SIC Act, that proceedings under Section 20 of the SIC Act shall continue to be dealt with by the High Court. It was unnecessary to continue Rule 5(2) even after29.06.2017 as on 15.12.2016, all pending cases under Section 20 of the SIC Act were to continue to be dealt with by the High Court before which such cases were pending. Since there could be no opinion by the BIFR under Section 20 of the SIC Act after 01.12.2016, when the SIC Act was repealed, it was unnecessary to continue Rule 5(2) as, on 15.12.2016, all pending proceedings under Section 20 of the SIC Act were to continue with the High Court and would continue even thereafter. This is further made clear by the amendment to Section 434(1)(c), with effect from 17.08.2018, where any party to a winding up proceeding pending before a Court immediately before this date may file an application for transfer of such proceedings, and the Court, at that stage, may, by order, transfer such proceedings to the NCLT. The proceedings so transferred would then be dealt with by the NCLT as an application for initiation of the corporate insolvency resolution process under the Code. It is thus clear that under the scheme of Section 434 (as amended) and Rule 5 of the 2016 Transfer Rules, all proceedings under Section 20 of the SIC Act pending before the High Court are to continue as such until a party files an application before the High Court for transfer of such proceedings post 17.08.2018. Once this is done, the High Court must transfer such proceedings to the NCLT which will then deal with such proceedings as an application for initiation of the corporate insolvency resolution process under the Code.The High Court judgment, therefore, though incorrect in applying Rule 6 of the 2016 Transfer Rules, can still be supported on this aspect with a reference to Rule 5(2) read with Section 434 of the Companies Act, 2013, as amended, with effect from 17.08.2018.However, this does not end the matter. It is clear that Respondent No. 3 has filed a Section 7 application under the Code on 11.01.2018, on which an order has been passed admitting such application by the NCLT on 13.04.2018. This proceeding is an independent proceeding which has nothing to do with the transfer of pending winding up proceedings before the High Court. It was open for Respondent No. 3 at any time before a winding up order is passed to apply under Section 7 of the Code. This is clear from a reading of Section 7 together with Section 238 of the Code which reads asProvisions of this Code to override other laws.—The provisions of this Code shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any suchare of the view that the NCLT was absolutely correct in applying Section 238 of the Code to an independent proceeding instituted by a secured financial creditor, namely, the Alchemist Asset Reconstruction Company Ltd. This being the case, it is difficult to comprehend how the High Court could have held that the proceedings before the NCLT were without jurisdiction.
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Suresh Sitaram Surve Vs. State of Maharashtra | case and pierced it at 180 degree angle while holding it at his waist level. 12. This is what PW 5 had to say on the actual attack: "Raghunath Surve (A 1) gave a blow on that thigh of Praskash with a Farshi. Prakash fell down on the steps. Suresh (A 5) then pierced a Gupti in the chest or in the stomach of Prakash. I now say that it was in the centre i.e. between chest and stomach". Witness then demonstrates the manner in which the Gupti was pierced. PW 6 deposed:- "The accused surrounded Prakash. Accused no. 1 had a Farshi in his hand. He gave a blow with a Frashi on the thigh of Prakash. Besides, accused No.1 gave two blows on the right side just above the waist. Prakash fell down below the steps. Suresh came from his house and he had a Gupti in his hand. It was open. He pierced it in the stomach of Prakash". (The witness demonstrates by just pushing his hand in the front direction in 180 degree angle). 13. Even PW 2 who stated in the FIR that the appellant gave Gupti "blows" to the deceased, stated in his deposition that Suresh (Appellant) pierced Gupti in the stomach of Prakash. However, it is doubtful whether PW 2 could have noticed the actual spot of the body where the weapon was inserted as, according to PW 5, he was sitting at a distance holding his baby. 14. The High Court commented that the eye witnesses merely stated that the appellant pierced Gupti into the abdomen of Prakash without stating how many times. On that premise, the High Court held that the appellant inflicted all the injuries on the abdomen and chest with Gupti.15. We do not think that his approach of the High Court vis-a-vis the overt acts attributable to the appellant- 5th accused is tanable. The High Court failed to consider certain crucial aspects in this regard. Every witness in precise terms speaks to the infliction of injury on the stomach/abdomen. In fact, they proceed to give a graphic description of the stabbing by demonstrating the same in the court. It is no a case where the witnesses said in general terms that the appellant stabbed the deceased. On a plain reading of the relevant portions of the depositions extracted above, it appears that they witnessed only one injury being inflicted by the appellant with Gupti. At any rate, there is scope for doubt or ambiguity; if so, the prosecution should have specifically elicited from the eye witnesses that the appellant resorted to stabbing more than once. Moreover, the evidence of some of the witnesses reveal that the accused surrounded the deceased and more than one person was armed with Gupti. It transpires from the evidence of PW 17 the I.O., that two Guptis were recovered in the bye-lane near the scene of offence. It is therefore, quite probable that one or two companions of the accused could have caused the injuries found around the chest and abdomen with Gupti or a sharp weapon. It is also worthy of note that accused No.-1 brother of the appellant, allegedly inflicted an injury on the thigh of the deceased with a Farshi. No injury was, however, found on the thigh of the deceased. It is quite likely that the injury attributed to A 1 could have landed at one of the vital spots. This possibility also cannot be ruled out. Under these circumstances, a reasonable doubt arises whether the injuries 1 to 4 were all caused by the appellant-accused alone who was armed with a Gupti. It is, therefore, not possible to connect all the severe injuries on the abdomen, infroaxillary, and epigastric regions to the appellant. Nor it is possible to hold beyond doubt that the fatal injury No.3 on the epigastric region or for that matter even injury No.2 on the infroaxillary area which according to PW 11 was capable of causing death if it was not attended to immediately, were inflicted by none other than the appellant. It was only PW 5, brothers wife of the deceased, who put up an improved version stating "I now say that it was in the center i.e. between chest and stomach", so as to connect the appellant with the most serious injury on the epigastric region. It is highly doubtful whether she could have noticed in that melee the exact spot of the attack. In fact, it has come out in cross -examination that in the statement recorded by the police she did not specify the spot which she had mentioned in the course of examination in Court.16. Despite the above loophole in the prosecution case, the appellant who undoubtedly participated in the attack cannot be absolved of the guilt. We may recall that all the witnesses unequivocally spoke to the fact that the appellant did inflict an injury by piercing Gupti into the stomach or abdomen of the deceased. Thus, going by the evidence on record, it can be safely concluded that the appellant did inflict one of the four injuries noted (1 to 4) in the post mortem report. Though it is not possible to say with reasonable certainty that he is the person who caused the injuries 3 and 2 which are the most severe injuries, even then the other two injuries i.e. stab wound on the front of the abdomen 2" x 1", deep upto the abdominal cavity and stab wound on left side of infroaxillary area 1" x 1/2 " x3" are, by any objective standards, sufficiently serious injuries, whether or not they are injuries sufficient in the ordinary course of nature to cause death. Any one of them is severe enough to infer that it was likely to cause death. The appellant - accused undoubtedly intended to cause such bodily injury, though we are not in a position to say positively on an overall view of the case, that the appellant himself intended to cause death. | 1[ds]6. As rightly observed by the High Court, the trial court was not justified in discarding the evidence of injured eye witnesses (excepting PW7) in toto on the ground of inimical disposition towards the accused or the improbability of narrating the details of actual attack. True, their evidence has to be scrutinized with caution taking into account the factum of previous enmity and the tendency to exaggerate and to implicate as many as possible. But on a perusal of the evidence tested in the light of the broad probabilities, the High Court was justified in reaching the conclusion that the prosecution witnesses are natural witnesses and they could not have concocted the case against the accused without anycertain doubts are sought to be created as to the genesis of the incident and the manner of attack by taking us through the topography of the scene of offence, we are not at all convinced that the prosecution case is belied on account of such factors. The argument that the injuries on the appellant were not explained by the prosecution and therefore the prosecution case of the appellant being an aggressor in open to doubt has no substance at all. In the course of examination of PW5 under Section 313 Cr.P.C., the appellant while denying his presence in the course of the incident had stated that while returning home from his vegetable shop, he was assaulted by a crowd in a passage but he could not recognize them on account of darkness. Thus, he does not attribute the injury to the deceased or the prosecution party nor does he suggest that he acted inWhile on this aspect, the High Court also observed that the possibility of the accused being injured when the deceased or the prosecution witnesses tried to resist the attack cannot be ruled out. Considering the facts and evidence on record, we affirm the finding of the High Court that the appellant in the company of others did attack the deceased with a dangerous weapon, namely, Gupti and the prosecution case in this regard cannot be thrown out on the tenuous grounds made out by the trialall the witnesses say consistently that the appellant pierce the weapon (Gupti) into the stomach/abdomen of the deceased. The evidence scrutinized carefully reveals that the appellant pierced the weapon one and at one spot only.The High Court commented that the eye witnesses merely stated that the appellant pierced Gupti into the abdomen of Prakash without stating how many times. On that premise, the High Court held that the appellant inflicted all the injuries on the abdomen and chest with Gupti.15. We do not think that his approach of the High Courtthe overt acts attributable to the appellant5th accused is tanable. The High Court failed to consider certain crucial aspects in this regard. Every witness in precise terms speaks to the infliction of injury on the stomach/abdomen. In fact, they proceed to give a graphic description of the stabbing by demonstrating the same in the court. It is no a case where the witnesses said in general terms that the appellant stabbed the deceased. On a plain reading of the relevant portions of the depositions extracted above, it appears that they witnessed only one injury being inflicted by the appellant with Gupti. At any rate, there is scope for doubt or ambiguity; if so, the prosecution should have specifically elicited from the eye witnesses that the appellant resorted to stabbing more than once. Moreover, the evidence of some of the witnesses reveal that the accused surrounded the deceased and more than one person was armed with Gupti. It transpires from the evidence of PW 17 the I.O., that two Guptis were recovered in thenear the scene of offence. It is therefore, quite probable that one or two companions of the accused could have caused the injuries found around the chest and abdomen with Gupti or a sharp weapon. It is also worthy of note that accusedbrother of the appellant, allegedly inflicted an injury on the thigh of the deceased with a Farshi. No injury was, however, found on the thigh of the deceased. It is quite likely that the injury attributed to A 1 could have landed at one of the vital spots. This possibility also cannot be ruled out. Under these circumstances, a reasonable doubt arises whether the injuries 1 to 4 were all caused by thealone who was armed with a Gupti. It is, therefore, not possible to connect all the severe injuries on the abdomen, infroaxillary, and epigastric regions to the appellant. Nor it is possible to hold beyond doubt that the fatal injury No.3 on the epigastric region or for that matter even injury No.2 on the infroaxillary area which according to PW 11 was capable of causing death if it was not attended to immediately, were inflicted by none other than the appellant. It was only PW 5, brothers wife of the deceased, who put up an improved version stating "I now say that it was in the center i.e. between chest and stomach", so as to connect the appellant with the most serious injury on the epigastric region. It is highly doubtful whether she could have noticed in that melee the exact spot of the attack. In fact, it has come out in crossexamination that in the statement recorded by the police she did not specify the spot which she had mentioned in the course of examination in Court.16. Despite the above loophole in the prosecution case, the appellant who undoubtedly participated in the attack cannot be absolved of the guilt. We may recall that all the witnesses unequivocally spoke to the fact that the appellant did inflict an injury by piercing Gupti into the stomach or abdomen of the deceased. Thus, going by the evidence on record, it can be safely concluded that the appellant did inflict one of the four injuries noted (1 to 4) in the post mortem report. Though it is not possible to say with reasonable certainty that he is the person who caused the injuries 3 and 2 which are the most severe injuries, even then the other two injuries i.e. stab wound on the front of the abdomen 2" x 1", deep upto the abdominal cavity and stab wound on left side of infroaxillary area 1" x 1/2 " x3" are, by any objective standards, sufficiently serious injuries, whether or not they are injuries sufficient in the ordinary course of nature to cause death. Any one of them is severe enough to infer that it was likely to cause death. The appellantaccused undoubtedly intended to cause such bodily injury, though we are not in a position to say positively on an overall view of the case, that the appellant himself intended to cause death. | 1 | 3,590 | 1,233 | ### Instruction:
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case and pierced it at 180 degree angle while holding it at his waist level. 12. This is what PW 5 had to say on the actual attack: "Raghunath Surve (A 1) gave a blow on that thigh of Praskash with a Farshi. Prakash fell down on the steps. Suresh (A 5) then pierced a Gupti in the chest or in the stomach of Prakash. I now say that it was in the centre i.e. between chest and stomach". Witness then demonstrates the manner in which the Gupti was pierced. PW 6 deposed:- "The accused surrounded Prakash. Accused no. 1 had a Farshi in his hand. He gave a blow with a Frashi on the thigh of Prakash. Besides, accused No.1 gave two blows on the right side just above the waist. Prakash fell down below the steps. Suresh came from his house and he had a Gupti in his hand. It was open. He pierced it in the stomach of Prakash". (The witness demonstrates by just pushing his hand in the front direction in 180 degree angle). 13. Even PW 2 who stated in the FIR that the appellant gave Gupti "blows" to the deceased, stated in his deposition that Suresh (Appellant) pierced Gupti in the stomach of Prakash. However, it is doubtful whether PW 2 could have noticed the actual spot of the body where the weapon was inserted as, according to PW 5, he was sitting at a distance holding his baby. 14. The High Court commented that the eye witnesses merely stated that the appellant pierced Gupti into the abdomen of Prakash without stating how many times. On that premise, the High Court held that the appellant inflicted all the injuries on the abdomen and chest with Gupti.15. We do not think that his approach of the High Court vis-a-vis the overt acts attributable to the appellant- 5th accused is tanable. The High Court failed to consider certain crucial aspects in this regard. Every witness in precise terms speaks to the infliction of injury on the stomach/abdomen. In fact, they proceed to give a graphic description of the stabbing by demonstrating the same in the court. It is no a case where the witnesses said in general terms that the appellant stabbed the deceased. On a plain reading of the relevant portions of the depositions extracted above, it appears that they witnessed only one injury being inflicted by the appellant with Gupti. At any rate, there is scope for doubt or ambiguity; if so, the prosecution should have specifically elicited from the eye witnesses that the appellant resorted to stabbing more than once. Moreover, the evidence of some of the witnesses reveal that the accused surrounded the deceased and more than one person was armed with Gupti. It transpires from the evidence of PW 17 the I.O., that two Guptis were recovered in the bye-lane near the scene of offence. It is therefore, quite probable that one or two companions of the accused could have caused the injuries found around the chest and abdomen with Gupti or a sharp weapon. It is also worthy of note that accused No.-1 brother of the appellant, allegedly inflicted an injury on the thigh of the deceased with a Farshi. No injury was, however, found on the thigh of the deceased. It is quite likely that the injury attributed to A 1 could have landed at one of the vital spots. This possibility also cannot be ruled out. Under these circumstances, a reasonable doubt arises whether the injuries 1 to 4 were all caused by the appellant-accused alone who was armed with a Gupti. It is, therefore, not possible to connect all the severe injuries on the abdomen, infroaxillary, and epigastric regions to the appellant. Nor it is possible to hold beyond doubt that the fatal injury No.3 on the epigastric region or for that matter even injury No.2 on the infroaxillary area which according to PW 11 was capable of causing death if it was not attended to immediately, were inflicted by none other than the appellant. It was only PW 5, brothers wife of the deceased, who put up an improved version stating "I now say that it was in the center i.e. between chest and stomach", so as to connect the appellant with the most serious injury on the epigastric region. It is highly doubtful whether she could have noticed in that melee the exact spot of the attack. In fact, it has come out in cross -examination that in the statement recorded by the police she did not specify the spot which she had mentioned in the course of examination in Court.16. Despite the above loophole in the prosecution case, the appellant who undoubtedly participated in the attack cannot be absolved of the guilt. We may recall that all the witnesses unequivocally spoke to the fact that the appellant did inflict an injury by piercing Gupti into the stomach or abdomen of the deceased. Thus, going by the evidence on record, it can be safely concluded that the appellant did inflict one of the four injuries noted (1 to 4) in the post mortem report. Though it is not possible to say with reasonable certainty that he is the person who caused the injuries 3 and 2 which are the most severe injuries, even then the other two injuries i.e. stab wound on the front of the abdomen 2" x 1", deep upto the abdominal cavity and stab wound on left side of infroaxillary area 1" x 1/2 " x3" are, by any objective standards, sufficiently serious injuries, whether or not they are injuries sufficient in the ordinary course of nature to cause death. Any one of them is severe enough to infer that it was likely to cause death. The appellant - accused undoubtedly intended to cause such bodily injury, though we are not in a position to say positively on an overall view of the case, that the appellant himself intended to cause death.
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### Explanation:
the manner of attack by taking us through the topography of the scene of offence, we are not at all convinced that the prosecution case is belied on account of such factors. The argument that the injuries on the appellant were not explained by the prosecution and therefore the prosecution case of the appellant being an aggressor in open to doubt has no substance at all. In the course of examination of PW5 under Section 313 Cr.P.C., the appellant while denying his presence in the course of the incident had stated that while returning home from his vegetable shop, he was assaulted by a crowd in a passage but he could not recognize them on account of darkness. Thus, he does not attribute the injury to the deceased or the prosecution party nor does he suggest that he acted inWhile on this aspect, the High Court also observed that the possibility of the accused being injured when the deceased or the prosecution witnesses tried to resist the attack cannot be ruled out. Considering the facts and evidence on record, we affirm the finding of the High Court that the appellant in the company of others did attack the deceased with a dangerous weapon, namely, Gupti and the prosecution case in this regard cannot be thrown out on the tenuous grounds made out by the trialall the witnesses say consistently that the appellant pierce the weapon (Gupti) into the stomach/abdomen of the deceased. The evidence scrutinized carefully reveals that the appellant pierced the weapon one and at one spot only.The High Court commented that the eye witnesses merely stated that the appellant pierced Gupti into the abdomen of Prakash without stating how many times. On that premise, the High Court held that the appellant inflicted all the injuries on the abdomen and chest with Gupti.15. We do not think that his approach of the High Courtthe overt acts attributable to the appellant5th accused is tanable. The High Court failed to consider certain crucial aspects in this regard. Every witness in precise terms speaks to the infliction of injury on the stomach/abdomen. In fact, they proceed to give a graphic description of the stabbing by demonstrating the same in the court. It is no a case where the witnesses said in general terms that the appellant stabbed the deceased. On a plain reading of the relevant portions of the depositions extracted above, it appears that they witnessed only one injury being inflicted by the appellant with Gupti. At any rate, there is scope for doubt or ambiguity; if so, the prosecution should have specifically elicited from the eye witnesses that the appellant resorted to stabbing more than once. Moreover, the evidence of some of the witnesses reveal that the accused surrounded the deceased and more than one person was armed with Gupti. It transpires from the evidence of PW 17 the I.O., that two Guptis were recovered in thenear the scene of offence. It is therefore, quite probable that one or two companions of the accused could have caused the injuries found around the chest and abdomen with Gupti or a sharp weapon. It is also worthy of note that accusedbrother of the appellant, allegedly inflicted an injury on the thigh of the deceased with a Farshi. No injury was, however, found on the thigh of the deceased. It is quite likely that the injury attributed to A 1 could have landed at one of the vital spots. This possibility also cannot be ruled out. Under these circumstances, a reasonable doubt arises whether the injuries 1 to 4 were all caused by thealone who was armed with a Gupti. It is, therefore, not possible to connect all the severe injuries on the abdomen, infroaxillary, and epigastric regions to the appellant. Nor it is possible to hold beyond doubt that the fatal injury No.3 on the epigastric region or for that matter even injury No.2 on the infroaxillary area which according to PW 11 was capable of causing death if it was not attended to immediately, were inflicted by none other than the appellant. It was only PW 5, brothers wife of the deceased, who put up an improved version stating "I now say that it was in the center i.e. between chest and stomach", so as to connect the appellant with the most serious injury on the epigastric region. It is highly doubtful whether she could have noticed in that melee the exact spot of the attack. In fact, it has come out in crossexamination that in the statement recorded by the police she did not specify the spot which she had mentioned in the course of examination in Court.16. Despite the above loophole in the prosecution case, the appellant who undoubtedly participated in the attack cannot be absolved of the guilt. We may recall that all the witnesses unequivocally spoke to the fact that the appellant did inflict an injury by piercing Gupti into the stomach or abdomen of the deceased. Thus, going by the evidence on record, it can be safely concluded that the appellant did inflict one of the four injuries noted (1 to 4) in the post mortem report. Though it is not possible to say with reasonable certainty that he is the person who caused the injuries 3 and 2 which are the most severe injuries, even then the other two injuries i.e. stab wound on the front of the abdomen 2" x 1", deep upto the abdominal cavity and stab wound on left side of infroaxillary area 1" x 1/2 " x3" are, by any objective standards, sufficiently serious injuries, whether or not they are injuries sufficient in the ordinary course of nature to cause death. Any one of them is severe enough to infer that it was likely to cause death. The appellantaccused undoubtedly intended to cause such bodily injury, though we are not in a position to say positively on an overall view of the case, that the appellant himself intended to cause death.
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KHODIYAAR ROLLING MILLS Vs. PASCHIM GUJARAT VIJ COMPANY LIMITED | Banumathi, J. - Leave granted. 2. This appeal arises out of judgment and order dated 25th July, 2014 passed by the High Court of Gujarat at Ahmedabad in Special Civil Application No.15454 of 2013 in and by which the High Court affirmed the order of the court below refusing to set aside the ex-parte decree passed by the trial court in Special Civil Suit No.56 of 2006. 3. The appellant was running a mill and the respondent was a distributer of the electricity for the area including the mill in the premises of the appellant. There was a outstanding due of Rs.63,41,994.20. The respondent filed Special Civil Suit No.56 of 2006 for recovery of the said outstanding amount. In the said suit the appellant has not entered appearance and an ex-parte decree was passed on 17th April, 2007. The appellant herein has filed an application under Order 9 Rule 13 of the C.P.C. to set aside the ex-parte decree which was filed with delay of twenty months and thirteen days. The Trial Court held that the appellant has not satisfactorily explained the delay of filing the said application under Order 9 Rule 13 of the C.P.C. and accordingly dismissed the same. In the revision the said order was affirmed by the High Court holding that the appellant had knowledge about passing of the ex-parte decree. 4. We have heard Mr. Jay Savla, learned counsel appearing for the appellant and Mr. Pradeep Misra, learned counsel appearing for the respondent and also perused the impugned judgment. 5. By order dated 8th January, 2015 this Court has directed the appellant to deposit a sum of Rs.70,00,000/- (Rupees Seventy Lakhs) with the respondent without prejudice to his contention. In compliance thereof, the appellant has deposited Rs.70,00,000/- (Rupees Seventy Lakhs) with the respondent. | 1[ds]5. By order dated 8th January, 2015 this Court has directed the appellant to deposit a sum of Rs.70,00,000/- (Rupees Seventy Lakhs) with the respondent without prejudice to his contention. In compliance thereof, the appellant has deposited Rs.70,00,000/- (Rupees Seventy Lakhs) with the respondent. | 1 | 328 | 57 | ### 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:
Banumathi, J. - Leave granted. 2. This appeal arises out of judgment and order dated 25th July, 2014 passed by the High Court of Gujarat at Ahmedabad in Special Civil Application No.15454 of 2013 in and by which the High Court affirmed the order of the court below refusing to set aside the ex-parte decree passed by the trial court in Special Civil Suit No.56 of 2006. 3. The appellant was running a mill and the respondent was a distributer of the electricity for the area including the mill in the premises of the appellant. There was a outstanding due of Rs.63,41,994.20. The respondent filed Special Civil Suit No.56 of 2006 for recovery of the said outstanding amount. In the said suit the appellant has not entered appearance and an ex-parte decree was passed on 17th April, 2007. The appellant herein has filed an application under Order 9 Rule 13 of the C.P.C. to set aside the ex-parte decree which was filed with delay of twenty months and thirteen days. The Trial Court held that the appellant has not satisfactorily explained the delay of filing the said application under Order 9 Rule 13 of the C.P.C. and accordingly dismissed the same. In the revision the said order was affirmed by the High Court holding that the appellant had knowledge about passing of the ex-parte decree. 4. We have heard Mr. Jay Savla, learned counsel appearing for the appellant and Mr. Pradeep Misra, learned counsel appearing for the respondent and also perused the impugned judgment. 5. By order dated 8th January, 2015 this Court has directed the appellant to deposit a sum of Rs.70,00,000/- (Rupees Seventy Lakhs) with the respondent without prejudice to his contention. In compliance thereof, the appellant has deposited Rs.70,00,000/- (Rupees Seventy Lakhs) with the respondent.
### Response:
1
### Explanation:
5. By order dated 8th January, 2015 this Court has directed the appellant to deposit a sum of Rs.70,00,000/- (Rupees Seventy Lakhs) with the respondent without prejudice to his contention. In compliance thereof, the appellant has deposited Rs.70,00,000/- (Rupees Seventy Lakhs) with the respondent.
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Sial Soap Stone Factory Vs. State of Madhya Pradesh and Others | KHANNA, J. 1. This is an appeal against the judgment of the Madhya Pradesh High Court dismissing a petition under article 226 of the Constitution of India filed by the appellant. 2. The appellant is a registered firm. Various sums of money were due from the appellant on account of sales tax. The appellant, however, could not pay those amounts. Recovery certificate for recovery of Rs. 30, 000 on account of the sales tax was issued by the sales tax authorities to the Revenue Officer. The Additional Tahsildar, Sales Tax, after issuing notices to the appellant, attached immovable and movable properties belonging to the appellant. The said properties were sold by auction on December 8, 1961. Respondent No. 3 was the highest bidder in those auction-sales. He gave a bid of Rs. 12, 000 for the immovable property and of Rs. 21, 000 for the movable property. The appellant, after agitating the matter before the revenue authorities, filed petition under article 226 of the Constitution to challenge the attachment and sale of the said properties. The High Court, as stated above, dismissed the petition. 3. It was urged before the High Court on behalf of the appellant that the service of notice which was issued by the Additional Tahsildar was effected by affixation and not personally upon the partners of the appellant-firm. The procedure adopted in this respect, according to the appellant, was not in accordance with the rules of procedure prescribed for the revenue officers and revenue courts regarding the mode of service. The High Court repelled the contention advanced on behalf of the appellant in this respect. The same contention has been advanced on behalf of the appellant before us by its learned counsel, Mr. Goyal. He has drawn our attention to rules 11, 12, 13 and 14. According to rule 11, every notice shall be served by tendering or delivering a copy of it to the person concerned personally or to his recognised agent. Rule 12 provides that where the person concerned cannot be found and has no recognised agent, service may be made on any adult male member of the person (sic) concerned, who is residing with him. Rule 13 is to the effect that where the serving officer delivers or tenders a copy of the notice to the person concerned personally or to an agent or other person on his behalf, he shall require the signature of the person to whom the copy is delivered or tendered in token of acknowledgment of service. Then follows rule 14, according to which, if service of the notice cannot be effected in the manner provided in rules 11, 12 and 13 a copy thereof may be affixed at the last known place of residence of the person concerned or at some place of public resort in the village in which the land to which the notice relates is situate or from which the land is cultivated.The contention of Mr. Goyal regarding non-compliance with rules 11 to 14, in our opinion, is not well-founded. As mentioned above, service was effected by affixation. The report of the process-server shows that before he affixed the notice, a partner of the appellant-firm had declined to accept the notice. There are a number of other reports which also show that the partners of the appellant declined on various occasions to accept notices which were sent to them in connection with the recovery proceedings. There can also be no manner of doubt that the partners of the appellant-firm were aware of the attachment and the proposed auction-sale of the properties in question. We may refer in this connection to a letter dated November 24, 1967, addressed by a partner of the appellant-firm to the sales tax recovery officer. In the said letter, it was admitted by the partner of the appellant-firm that he had received notice of the auction of the properties in dispute. On an earlier occasion the counsel for the appellant prayed for time to pay the amount of the sales tax due. The amount, however, was not paid in spite of the fact that ten days time was granted to do the needful. We, therefore, find no valid ground to interfere with the judgment of the High Court, dismissing the writ petition filed by the appellant. | 0[ds]The contention of Mr. Goyal regardinge with rules 11 to 14, in our opinion, is not. As mentioned above, service was effected by affixation. The report of ther shows that before he affixed the notice, a partner of them had declined to accept the notice. There are a number of other reports which also show that the partners of the appellant declined on various occasions to accept notices which were sent to them in connection with the recovery proceedings. There can also be no manner of doubt that the partners of them were aware of the attachment and the proposede of the properties in question. We may refer in this connection to a letter dated November 24, 1967, addressed by a partner of them to the sales tax recovery officer. In the said letter, it was admitted by the partner of them that he had received notice of the auction of the properties in dispute. On an earlier occasion the counsel for the appellant prayed for time to pay the amount of the sales tax due. The amount, however, was not paid in spite of the fact that ten days time was granted to do the needful. We, therefore, find no valid ground to interfere with the judgment of the High Court, dismissing the writ petition filed by the appellant. | 0 | 794 | 246 | ### 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:
KHANNA, J. 1. This is an appeal against the judgment of the Madhya Pradesh High Court dismissing a petition under article 226 of the Constitution of India filed by the appellant. 2. The appellant is a registered firm. Various sums of money were due from the appellant on account of sales tax. The appellant, however, could not pay those amounts. Recovery certificate for recovery of Rs. 30, 000 on account of the sales tax was issued by the sales tax authorities to the Revenue Officer. The Additional Tahsildar, Sales Tax, after issuing notices to the appellant, attached immovable and movable properties belonging to the appellant. The said properties were sold by auction on December 8, 1961. Respondent No. 3 was the highest bidder in those auction-sales. He gave a bid of Rs. 12, 000 for the immovable property and of Rs. 21, 000 for the movable property. The appellant, after agitating the matter before the revenue authorities, filed petition under article 226 of the Constitution to challenge the attachment and sale of the said properties. The High Court, as stated above, dismissed the petition. 3. It was urged before the High Court on behalf of the appellant that the service of notice which was issued by the Additional Tahsildar was effected by affixation and not personally upon the partners of the appellant-firm. The procedure adopted in this respect, according to the appellant, was not in accordance with the rules of procedure prescribed for the revenue officers and revenue courts regarding the mode of service. The High Court repelled the contention advanced on behalf of the appellant in this respect. The same contention has been advanced on behalf of the appellant before us by its learned counsel, Mr. Goyal. He has drawn our attention to rules 11, 12, 13 and 14. According to rule 11, every notice shall be served by tendering or delivering a copy of it to the person concerned personally or to his recognised agent. Rule 12 provides that where the person concerned cannot be found and has no recognised agent, service may be made on any adult male member of the person (sic) concerned, who is residing with him. Rule 13 is to the effect that where the serving officer delivers or tenders a copy of the notice to the person concerned personally or to an agent or other person on his behalf, he shall require the signature of the person to whom the copy is delivered or tendered in token of acknowledgment of service. Then follows rule 14, according to which, if service of the notice cannot be effected in the manner provided in rules 11, 12 and 13 a copy thereof may be affixed at the last known place of residence of the person concerned or at some place of public resort in the village in which the land to which the notice relates is situate or from which the land is cultivated.The contention of Mr. Goyal regarding non-compliance with rules 11 to 14, in our opinion, is not well-founded. As mentioned above, service was effected by affixation. The report of the process-server shows that before he affixed the notice, a partner of the appellant-firm had declined to accept the notice. There are a number of other reports which also show that the partners of the appellant declined on various occasions to accept notices which were sent to them in connection with the recovery proceedings. There can also be no manner of doubt that the partners of the appellant-firm were aware of the attachment and the proposed auction-sale of the properties in question. We may refer in this connection to a letter dated November 24, 1967, addressed by a partner of the appellant-firm to the sales tax recovery officer. In the said letter, it was admitted by the partner of the appellant-firm that he had received notice of the auction of the properties in dispute. On an earlier occasion the counsel for the appellant prayed for time to pay the amount of the sales tax due. The amount, however, was not paid in spite of the fact that ten days time was granted to do the needful. We, therefore, find no valid ground to interfere with the judgment of the High Court, dismissing the writ petition filed by the appellant.
### Response:
0
### Explanation:
The contention of Mr. Goyal regardinge with rules 11 to 14, in our opinion, is not. As mentioned above, service was effected by affixation. The report of ther shows that before he affixed the notice, a partner of them had declined to accept the notice. There are a number of other reports which also show that the partners of the appellant declined on various occasions to accept notices which were sent to them in connection with the recovery proceedings. There can also be no manner of doubt that the partners of them were aware of the attachment and the proposede of the properties in question. We may refer in this connection to a letter dated November 24, 1967, addressed by a partner of them to the sales tax recovery officer. In the said letter, it was admitted by the partner of them that he had received notice of the auction of the properties in dispute. On an earlier occasion the counsel for the appellant prayed for time to pay the amount of the sales tax due. The amount, however, was not paid in spite of the fact that ten days time was granted to do the needful. We, therefore, find no valid ground to interfere with the judgment of the High Court, dismissing the writ petition filed by the appellant.
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Trilochan Singh Vs. Kanta Devi and Others | Civil Appeal No. 2 of 2000 (arising out of SLP (C) No. 19168 of 1998) 1. Leave granted. 2. We have heard learned counsel for the appellant as well as the learned counsel for the Insurance Company which is the main contesting party. By their consent the appeal is being disposed of finally. Rest of the respondent claimants are already served. 3. The appellant who was the owner of the offending vehicle got his appeal against the award dismissed on account of non-deposit of Rs. 25, 000/- which was the statutory requirement for entertaining the appeal. 4. In our view, looking to the facts and circumstances of the case especially when he was a retired army personnel and also in view of the further fact that the respondent Insurance Company has already paid the full amount to the claimants and the question of the Insurance Companys realising the amount from the appellant in case the appellant fails in his appeal arises for consideration, interest of justice will be served if the impugned order is set aside on the condition | 0[ds]In our view, looking to the facts and circumstances of the case especially when he was a retired army personnel and also in view of the further fact that the respondent Insurance Company has already paid the full amount to the claimants and the question of the Insurance Companys realising the amount from the appellant in case the appellant fails in his appeal arises for consideration, interest of justice will be served if the impugned order is set aside on the condition | 0 | 198 | 88 | ### 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:
Civil Appeal No. 2 of 2000 (arising out of SLP (C) No. 19168 of 1998) 1. Leave granted. 2. We have heard learned counsel for the appellant as well as the learned counsel for the Insurance Company which is the main contesting party. By their consent the appeal is being disposed of finally. Rest of the respondent claimants are already served. 3. The appellant who was the owner of the offending vehicle got his appeal against the award dismissed on account of non-deposit of Rs. 25, 000/- which was the statutory requirement for entertaining the appeal. 4. In our view, looking to the facts and circumstances of the case especially when he was a retired army personnel and also in view of the further fact that the respondent Insurance Company has already paid the full amount to the claimants and the question of the Insurance Companys realising the amount from the appellant in case the appellant fails in his appeal arises for consideration, interest of justice will be served if the impugned order is set aside on the condition
### Response:
0
### Explanation:
In our view, looking to the facts and circumstances of the case especially when he was a retired army personnel and also in view of the further fact that the respondent Insurance Company has already paid the full amount to the claimants and the question of the Insurance Companys realising the amount from the appellant in case the appellant fails in his appeal arises for consideration, interest of justice will be served if the impugned order is set aside on the condition
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Union Of India Vs. M/S Hindustan Zinc Ltd | Credit have to be understood giving the meaning as assigned to it in the Modvat/ Cenvat Rules. Rule 57A inter alia states that the provisions of this Section shall apply to such finalised excisable goods (referred to in that section as final products). Again, Rule 2(c) of the Cenvat Credit Rules, 2002 defines “final products” as meaning excisable goods manufactured or produced from inputs except matches. Rule 2(h) of the Cenvat Credit Rules, 2004 defines “final products” as meaning excisable goods manufactured or produced from input, or using in input service. Thus, final products referred to in the aforesaid provisions can only mean to be excisable goods produced or manufactured. In the present set of cases, sulphuric acid, caustic soda flakes, trichloro ethylene and Phosphoryl A and Phosphoryl B are excisable goods manufactured and produced in India falling under different headings of the Central Excise Tariff Act. The submission was that if these products are exempt or subject to NIL rate of duty, then the inputs on which Modvat/ Cenvat Credit are claimed used in the manufacture of the aforesaid final products will attract the rigor of Rule 57CC/ Rule 6 of the Modvat/ Cenvat Credit Rules. 23. In this very direction, his further submission was that the term “by- products” is not defined either in the Act or in the Rules. Dictionary meanings cannot be resorted to in this case as it would then mean that final products would be treated as by-products defeating the plain language of Rule 57CC and Rule 6 which are applicable to final products. The only test is “excisability of goods manufactured or produced” and only if the requirements of this test are satisfied, the goods can be final products and never by-products. On this basis, the learned Solicitor General submitted that even an admission made before the Tribunal in the Birla Copper case of the goods being a by-product, cannot be relied on by the respondent.24. While pleading that the aforesaid interpretation to these Rules be accepted by this Court, submission of Mr. Parasaran was that in such an eventuality the judgment in the case of Swadeshi Polytex Ltd. v. CCE; 1989 (44) ELT 794 was not applicable, nor was the judgment in CCE v. Gas Authority of India Ltd.; 2008 (232) ELT 7 relied upon the by the respondent. Likewise his submission was that judgment of the Bombay High Court in the case of Rallis India Ltd. v. Union of India; 2009 (233) ELT 301 was erroneous wherein view taken is contrary to the aforesaid submission. 25. These arguments may seem to be attractive. However, having regard to the processes involved, which is already explained above and the reasons afforded by us, we express our inability to be persuaded by these submissions. We have already noticed above that in the case of Birla Copper (C.A. No. 2337 of 2011) the Tribunal has decided the matter following the judgment in the case of Swadeshi Limited (supra). In that case, Ethylene Glycol was reacted with DMT to produce polyester and ethanol. Methanol was not excisable while Polyester Fibre was liable to excise duty. Credit was taken of duty paid on ethylene glycol wholly for the payment of duty on polyester. The department took a position that Ethylene Glycol was used in the production of Methanol and proportionate credit taken on ethylene glycol was to be reversed. This Court ruled that the emergence of Methanol was a technological necessity and no part of ethylene glycol could be said to have been used in production of Methanol and indeed it was held that the total quantity of ethylene glycol was used for the production of polyester. The fact in all these three appeals appear to be identical to the facts and the law laid down in Swadeshi Polytex (supra). Therefore, this judgment is squarely applicable.26. Furthermore, the provisions of Rule 57CC cannot be read in isolation. In order to understand the scheme of Modvat Credit contained in this Rule, a combined reading of Rule 57A, 57B and 57D alongwith Rule 57CC becomes inevitable. We have already reproduced Rule 57D above. It can be easily discerned from a combined reading of the aforesaid provisions that the terms used are inputs, final products, by-product, waste products etc. We are of the opinion that these terms have been used taking into account commercial reality in trade. In that context when we scan through Rule 57 CC, reference to final product being manufactured with the same common inputs becomes understandable. This Rule did not talk about emergence of final product and a by-product and still said that Rule 57 CC will apply. The appellant seeks to apply Rule 57CC when Rule 57D does not talk about application of Rule 57CC to final product and by-product when the by-product emerged as a technological necessity. Accepting the argument of the appellant would amount to equating by-product and final product thereby obliterating the difference though recognised by the legislation itself. Significantly this interpretation by the Tribunal in Sterlite (supra) was not appealed against by the department.27. We are also unable to agree with the submission of the learned Secretary General that judgment in GAILs Case is not applicable. Significantly, the question as to whether Rule 57 CC will apply when by-products are cleared without payment of duty came for discussion in that case. It was held that so long as the lean gas was obtained as a by-product and not as a final product, Rule 57 CC will not apply. We are, therefore, of the view that the respondents case is squarely covered by the judgment in GAILs case. 28. At the stage we should deal with the argument of non maintainability of the writ petition filed by Hindustan Zinc Limited before the High Court. No doubt, it had filed writ petition at show cause stage. However, it was not merely the validity of show cause notice which was questioned. In the writ petition even the vires of Rule 57 CC were challenged. | 0[ds]That is the reason why the department accepted the position before the Tribunal that sulphuric acid is a by-product.In these circumstances the position taken now by the appellant that sulphuric acid cannot be treated as a by-product cannot be countenanced.On these facts this court is inclined to accept the version of the respondents that the ore concentrate is completely consumed in the extraction of zinc and no part of the metal is forming part of sulphurictherefore, agree with the High Court that the requirements of 57CC were fully met in the way in which the Respondent was maintaining records and inventory and the mischief of recovery of 8% under Rule 57 CC on exempted sulphuric acid is not attracted.These arguments may seem to be attractive. However, having regard to the processes involved, which is already explained above and the reasons afforded by us, we express our inability to be persuaded by these submissions. We have already noticed above that in the case of Birla Copper (C.A. No. 2337 of 2011) the Tribunal has decided the matter following the judgment in the case of Swadeshi Limited (supra). In that case, Ethylene Glycol was reacted with DMT to produce polyester and ethanol. Methanol was not excisable while Polyester Fibre was liable to excise duty. Credit was taken of duty paid on ethylene glycol wholly for the payment of duty on polyester. The department took a position that Ethylene Glycol was used in the production of Methanol and proportionate credit taken on ethylene glycol was to be reversed. This Court ruled that the emergence of Methanol was a technological necessity and no part of ethylene glycol could be said to have been used in production of Methanol and indeed it was held that the total quantity of ethylene glycol was used for the production of polyester. The fact in all these three appeals appear to be identical to the facts and the law laid down in Swadeshi Polytex (supra). Therefore, this judgment is squarely applicable.26. Furthermore, the provisions of Rule 57CC cannot be read in isolation. In order to understand the scheme of Modvat Credit contained in this Rule, a combined reading of Rule 57A, 57B and 57D alongwith Rule 57CC becomes inevitable. We have already reproduced Rule 57D above. It can be easily discerned from a combined reading of the aforesaid provisions that the terms used are inputs, final products, by-product, waste products etc. We are of the opinion that these terms have been used taking into account commercial reality in trade. In that context when we scan through Rule 57 CC, reference to final product being manufactured with the same common inputs becomes understandable. This Rule did not talk about emergence of final product and a by-product and still said that Rule 57 CC will apply. The appellant seeks to apply Rule 57CC when Rule 57D does not talk about application of Rule 57CC to final product and by-product when the by-product emerged as a technological necessity. Accepting the argument of the appellant would amount to equating by-product and final product thereby obliterating the difference though recognised by the legislation itself. Significantly this interpretation by the Tribunal in Sterlite (supra) was not appealed against by the department.27. We are also unable to agree with the submission of the learned Secretary General that judgment in GAILs Case is not applicable. Significantly, the question as to whether Rule 57 CC will apply when by-products are cleared without payment of duty came for discussion in that case. It was held that so long as the lean gas was obtained as a by-product and not as a final product, Rule 57 CC will not apply. We are, therefore, of the view that the respondents case is squarely covered by the judgment in GAILs case.At the stage we should deal with the argument of non maintainability of the writ petition filed by Hindustan Zinc Limited before the High Court. No doubt, it had filed writ petition at show cause stage. However, it was not merely the validity of show cause notice which was questioned. In the writ petition even the vires of Rule 57 CC were | 0 | 6,100 | 753 | ### 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:
Credit have to be understood giving the meaning as assigned to it in the Modvat/ Cenvat Rules. Rule 57A inter alia states that the provisions of this Section shall apply to such finalised excisable goods (referred to in that section as final products). Again, Rule 2(c) of the Cenvat Credit Rules, 2002 defines “final products” as meaning excisable goods manufactured or produced from inputs except matches. Rule 2(h) of the Cenvat Credit Rules, 2004 defines “final products” as meaning excisable goods manufactured or produced from input, or using in input service. Thus, final products referred to in the aforesaid provisions can only mean to be excisable goods produced or manufactured. In the present set of cases, sulphuric acid, caustic soda flakes, trichloro ethylene and Phosphoryl A and Phosphoryl B are excisable goods manufactured and produced in India falling under different headings of the Central Excise Tariff Act. The submission was that if these products are exempt or subject to NIL rate of duty, then the inputs on which Modvat/ Cenvat Credit are claimed used in the manufacture of the aforesaid final products will attract the rigor of Rule 57CC/ Rule 6 of the Modvat/ Cenvat Credit Rules. 23. In this very direction, his further submission was that the term “by- products” is not defined either in the Act or in the Rules. Dictionary meanings cannot be resorted to in this case as it would then mean that final products would be treated as by-products defeating the plain language of Rule 57CC and Rule 6 which are applicable to final products. The only test is “excisability of goods manufactured or produced” and only if the requirements of this test are satisfied, the goods can be final products and never by-products. On this basis, the learned Solicitor General submitted that even an admission made before the Tribunal in the Birla Copper case of the goods being a by-product, cannot be relied on by the respondent.24. While pleading that the aforesaid interpretation to these Rules be accepted by this Court, submission of Mr. Parasaran was that in such an eventuality the judgment in the case of Swadeshi Polytex Ltd. v. CCE; 1989 (44) ELT 794 was not applicable, nor was the judgment in CCE v. Gas Authority of India Ltd.; 2008 (232) ELT 7 relied upon the by the respondent. Likewise his submission was that judgment of the Bombay High Court in the case of Rallis India Ltd. v. Union of India; 2009 (233) ELT 301 was erroneous wherein view taken is contrary to the aforesaid submission. 25. These arguments may seem to be attractive. However, having regard to the processes involved, which is already explained above and the reasons afforded by us, we express our inability to be persuaded by these submissions. We have already noticed above that in the case of Birla Copper (C.A. No. 2337 of 2011) the Tribunal has decided the matter following the judgment in the case of Swadeshi Limited (supra). In that case, Ethylene Glycol was reacted with DMT to produce polyester and ethanol. Methanol was not excisable while Polyester Fibre was liable to excise duty. Credit was taken of duty paid on ethylene glycol wholly for the payment of duty on polyester. The department took a position that Ethylene Glycol was used in the production of Methanol and proportionate credit taken on ethylene glycol was to be reversed. This Court ruled that the emergence of Methanol was a technological necessity and no part of ethylene glycol could be said to have been used in production of Methanol and indeed it was held that the total quantity of ethylene glycol was used for the production of polyester. The fact in all these three appeals appear to be identical to the facts and the law laid down in Swadeshi Polytex (supra). Therefore, this judgment is squarely applicable.26. Furthermore, the provisions of Rule 57CC cannot be read in isolation. In order to understand the scheme of Modvat Credit contained in this Rule, a combined reading of Rule 57A, 57B and 57D alongwith Rule 57CC becomes inevitable. We have already reproduced Rule 57D above. It can be easily discerned from a combined reading of the aforesaid provisions that the terms used are inputs, final products, by-product, waste products etc. We are of the opinion that these terms have been used taking into account commercial reality in trade. In that context when we scan through Rule 57 CC, reference to final product being manufactured with the same common inputs becomes understandable. This Rule did not talk about emergence of final product and a by-product and still said that Rule 57 CC will apply. The appellant seeks to apply Rule 57CC when Rule 57D does not talk about application of Rule 57CC to final product and by-product when the by-product emerged as a technological necessity. Accepting the argument of the appellant would amount to equating by-product and final product thereby obliterating the difference though recognised by the legislation itself. Significantly this interpretation by the Tribunal in Sterlite (supra) was not appealed against by the department.27. We are also unable to agree with the submission of the learned Secretary General that judgment in GAILs Case is not applicable. Significantly, the question as to whether Rule 57 CC will apply when by-products are cleared without payment of duty came for discussion in that case. It was held that so long as the lean gas was obtained as a by-product and not as a final product, Rule 57 CC will not apply. We are, therefore, of the view that the respondents case is squarely covered by the judgment in GAILs case. 28. At the stage we should deal with the argument of non maintainability of the writ petition filed by Hindustan Zinc Limited before the High Court. No doubt, it had filed writ petition at show cause stage. However, it was not merely the validity of show cause notice which was questioned. In the writ petition even the vires of Rule 57 CC were challenged.
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0
### Explanation:
That is the reason why the department accepted the position before the Tribunal that sulphuric acid is a by-product.In these circumstances the position taken now by the appellant that sulphuric acid cannot be treated as a by-product cannot be countenanced.On these facts this court is inclined to accept the version of the respondents that the ore concentrate is completely consumed in the extraction of zinc and no part of the metal is forming part of sulphurictherefore, agree with the High Court that the requirements of 57CC were fully met in the way in which the Respondent was maintaining records and inventory and the mischief of recovery of 8% under Rule 57 CC on exempted sulphuric acid is not attracted.These arguments may seem to be attractive. However, having regard to the processes involved, which is already explained above and the reasons afforded by us, we express our inability to be persuaded by these submissions. We have already noticed above that in the case of Birla Copper (C.A. No. 2337 of 2011) the Tribunal has decided the matter following the judgment in the case of Swadeshi Limited (supra). In that case, Ethylene Glycol was reacted with DMT to produce polyester and ethanol. Methanol was not excisable while Polyester Fibre was liable to excise duty. Credit was taken of duty paid on ethylene glycol wholly for the payment of duty on polyester. The department took a position that Ethylene Glycol was used in the production of Methanol and proportionate credit taken on ethylene glycol was to be reversed. This Court ruled that the emergence of Methanol was a technological necessity and no part of ethylene glycol could be said to have been used in production of Methanol and indeed it was held that the total quantity of ethylene glycol was used for the production of polyester. The fact in all these three appeals appear to be identical to the facts and the law laid down in Swadeshi Polytex (supra). Therefore, this judgment is squarely applicable.26. Furthermore, the provisions of Rule 57CC cannot be read in isolation. In order to understand the scheme of Modvat Credit contained in this Rule, a combined reading of Rule 57A, 57B and 57D alongwith Rule 57CC becomes inevitable. We have already reproduced Rule 57D above. It can be easily discerned from a combined reading of the aforesaid provisions that the terms used are inputs, final products, by-product, waste products etc. We are of the opinion that these terms have been used taking into account commercial reality in trade. In that context when we scan through Rule 57 CC, reference to final product being manufactured with the same common inputs becomes understandable. This Rule did not talk about emergence of final product and a by-product and still said that Rule 57 CC will apply. The appellant seeks to apply Rule 57CC when Rule 57D does not talk about application of Rule 57CC to final product and by-product when the by-product emerged as a technological necessity. Accepting the argument of the appellant would amount to equating by-product and final product thereby obliterating the difference though recognised by the legislation itself. Significantly this interpretation by the Tribunal in Sterlite (supra) was not appealed against by the department.27. We are also unable to agree with the submission of the learned Secretary General that judgment in GAILs Case is not applicable. Significantly, the question as to whether Rule 57 CC will apply when by-products are cleared without payment of duty came for discussion in that case. It was held that so long as the lean gas was obtained as a by-product and not as a final product, Rule 57 CC will not apply. We are, therefore, of the view that the respondents case is squarely covered by the judgment in GAILs case.At the stage we should deal with the argument of non maintainability of the writ petition filed by Hindustan Zinc Limited before the High Court. No doubt, it had filed writ petition at show cause stage. However, it was not merely the validity of show cause notice which was questioned. In the writ petition even the vires of Rule 57 CC were
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Rourkela Shramik Sangh Vs. Steel Authority Of India Ltd. | time. In the meanwhile, these 1800 workmen and their families are on the streets. It may also be pointed out that the management of Rourkela Steel Plant have not yet complied even with the orders of the Chief Labour Commissioner (Central) dated 1.5.1995 in which he had held another 523 workmen to be eligible for regularisation. 13. It is, thus, evident that the contentions raised herein and in the said interlocutory application, are identical. 14. Despite the aforementioned order dated 16th October, 1995, the writ petition was filed by the appellant herein which was marked as C.W.P. No. 2963 of 1995. By an order dated 15th July, 1998, the said writ petition was dismissed. Aggrieved thereby, the appellant filed a L.P.A. which was also dismissed by reasons of the impugned order. 15. Mr. Shanti Bhushan, learned Senior Counsel appearing on behalf of the appellant, has raised two contentions in support of this appeal. Firstly, it was submitted that keeping in view the clear and unequivocal directions of this Court in the aforementioned judgment, the Chief Labour Commissioner (Central) could not have directed that the identity of the concerned workmen would be established only with reference to the E.S.I. Card or P.F. Card although several workmen had various documents in their possession, e.g., identity card, service certificate, wage-sheet etc. to prove their case. It was next submitted that some workmen had even been retrenched during the earlier proceedings despite an order of injunction having been passed in that behalf, and, thus, were entitled to the benefit of the judgment of this Court. The learned counsel would submit that the approach of the High Court in passing the impugned judgment must be held to be erroneous inasmuch the writ petition could not be dismissed only because the appellant withdrew I.A. No. 10 of 1995 wherein the said order dated 16th October, 1995 was passed. It was submitted that the reliefs prayed for in the said interlocutory application had nothing to do with the subject matter of the writ petition which was disposed of by this Court. 16. Mr. Shanti Bhushan would further urge that as the High Court is also an authority, the appellants herein could also file a writ petition pursuant to or in furtherance of the observations made by this Court in its order dated 16th October, 1995. 17. Mr. C.S. Vaidyanathan, learned senior counsel appearing on behalf of the respondents on the other hand, submitted that the appellants having filed I.A. No. 9 of 1991 and I.A. No. 10 of 1995 before this Court raising identical questions could not raise the same again by filing an application under Article 226 of the Constitution of India and the remedy therefore available to them, if any, was merely to approach the Industrial Court in terms of the provisions of the Industrial Disputes Act. 18. Mr. Vaidyanathan would contend that at the later stage of the enquiry, the Chief Labour Commissioner, Central, had also taken into consideration other documents produced by the workmen and arrived at a finding that no reliance can be placed thereupon. 19. The question as to whether the concerned workmen had been continuously working for a period of ten years so as to enable them to derive benefit of the judgment of this Court in R.K. Pandas case was essentially a question of fact. The Chief Labour Commissioner (Central) while determining the said question was not acting as a statutory authority. He was merely acting pursuant to or in furthermore of the directions of this Court. 20. The appellants herein, as noticed hereinbefore, immediately after the pronouncement of the judgment of this Court apprehended that a large number of workmen may be retrenched. They, therefore, sought for clarification by filing the aforementioned I.As. No. 8 and 9 of 1991, which as noticed hereinbefore, were disposed of directing that in the even they are aggrieved by an order of the Chief Labour Commissioner (Central), they may take recourse to such proceedings as are available to them in law. 21. It is interesting to note that in the interlocutory applications marked as I.A. No. 10 of 1995, the appellants themselves stated: ......The petitioners now will have to approach the Industrial Tribunal for this, which would take considerable time. In the meanwhile, these 1800 workmen and their families are on the streets...... 22. There cannot, thus, be any doubt whatsoever, that the appellants were fully aware of the fact that they were required to approach the Industrial Tribunal in terms of the provisions of the Industrial Disputes Act for ventilating their grievances. The submission of Mr. Shanti Bhushan to the effect that the High Court acts as an authority while exercising its power under Article 226 of the Constitution of India cannot be countenanced. The order of this Court dated 16th October, 1995, as quoted supra, is absolutely clear and unambiguous. The term authority used in this Courts order dated 16th October, 1995 must be read in the context in which it was used. The appellant in terms thereof could seek a reference which would mean a reference in terms of Section 10 of the Industrial Disputes Act. It could also approach the authority in accordance with law which would mean authority under a statute. The High Court, by no stretch of imagination, can be an authority under stature. 23. Furthermore, even otherwise, a disputed question of fact normally would not be entertained in a writ proceeding. This aspect of the matter has also been considered by a Constitution Bench of this Court in Steel Authority of India Ltd. and others vs. National Union Waterfront Workers and others [(2001) 7 SCC 1] . In any event, the orders of the Chief Labour Commissioner dated 4th January, 1995 also shows that other documents which were placed on record by the workmen had also been scrutinized and they had not been found reliable. 24. We are, therefore, of the opinion that no case has been made out for interference with the impugned judgment. | 0[ds]22. There cannot, thus, be any doubt whatsoever, that the appellants were fully aware of the fact that they were required to approach the Industrial Tribunal in terms of the provisions of the Industrial Disputes Act for ventilating their grievances. The submission of Mr. Shanti Bhushan to the effect that the High Court acts as an authority while exercising its power under Article 226 of the Constitution of India cannot be countenanced. The order of this Court dated 16th October, 1995, as quoted supra, is absolutely clear and unambiguous. The term authority used in this Courts order dated 16th October, 1995 must be read in the context in which it was used. The appellant in terms thereof could seek a reference which would mean a reference in terms of Section 10 of the Industrial Disputes Act. It could also approach the authority in accordance with law which would mean authority under a statute. The High Court, by no stretch of imagination, can be an authority under stature23. Furthermore, even otherwise, a disputed question of fact normally would not be entertained in a writ proceeding. This aspect of the matter has also been considered by a Constitution Bench of this Court in Steel Authority of India Ltd. and others vs. National Union Waterfront Workers and others [(2001) 7 SCC 1] . In any event, the orders of the Chief Labour Commissioner dated 4th January, 1995 also shows that other documents which were placed on record by the workmen had also been scrutinized and they had not been found reliable24. We are, therefore, of the opinion that no case has been made out for interference with the impugned judgment. | 0 | 2,901 | 313 | ### 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:
time. In the meanwhile, these 1800 workmen and their families are on the streets. It may also be pointed out that the management of Rourkela Steel Plant have not yet complied even with the orders of the Chief Labour Commissioner (Central) dated 1.5.1995 in which he had held another 523 workmen to be eligible for regularisation. 13. It is, thus, evident that the contentions raised herein and in the said interlocutory application, are identical. 14. Despite the aforementioned order dated 16th October, 1995, the writ petition was filed by the appellant herein which was marked as C.W.P. No. 2963 of 1995. By an order dated 15th July, 1998, the said writ petition was dismissed. Aggrieved thereby, the appellant filed a L.P.A. which was also dismissed by reasons of the impugned order. 15. Mr. Shanti Bhushan, learned Senior Counsel appearing on behalf of the appellant, has raised two contentions in support of this appeal. Firstly, it was submitted that keeping in view the clear and unequivocal directions of this Court in the aforementioned judgment, the Chief Labour Commissioner (Central) could not have directed that the identity of the concerned workmen would be established only with reference to the E.S.I. Card or P.F. Card although several workmen had various documents in their possession, e.g., identity card, service certificate, wage-sheet etc. to prove their case. It was next submitted that some workmen had even been retrenched during the earlier proceedings despite an order of injunction having been passed in that behalf, and, thus, were entitled to the benefit of the judgment of this Court. The learned counsel would submit that the approach of the High Court in passing the impugned judgment must be held to be erroneous inasmuch the writ petition could not be dismissed only because the appellant withdrew I.A. No. 10 of 1995 wherein the said order dated 16th October, 1995 was passed. It was submitted that the reliefs prayed for in the said interlocutory application had nothing to do with the subject matter of the writ petition which was disposed of by this Court. 16. Mr. Shanti Bhushan would further urge that as the High Court is also an authority, the appellants herein could also file a writ petition pursuant to or in furtherance of the observations made by this Court in its order dated 16th October, 1995. 17. Mr. C.S. Vaidyanathan, learned senior counsel appearing on behalf of the respondents on the other hand, submitted that the appellants having filed I.A. No. 9 of 1991 and I.A. No. 10 of 1995 before this Court raising identical questions could not raise the same again by filing an application under Article 226 of the Constitution of India and the remedy therefore available to them, if any, was merely to approach the Industrial Court in terms of the provisions of the Industrial Disputes Act. 18. Mr. Vaidyanathan would contend that at the later stage of the enquiry, the Chief Labour Commissioner, Central, had also taken into consideration other documents produced by the workmen and arrived at a finding that no reliance can be placed thereupon. 19. The question as to whether the concerned workmen had been continuously working for a period of ten years so as to enable them to derive benefit of the judgment of this Court in R.K. Pandas case was essentially a question of fact. The Chief Labour Commissioner (Central) while determining the said question was not acting as a statutory authority. He was merely acting pursuant to or in furthermore of the directions of this Court. 20. The appellants herein, as noticed hereinbefore, immediately after the pronouncement of the judgment of this Court apprehended that a large number of workmen may be retrenched. They, therefore, sought for clarification by filing the aforementioned I.As. No. 8 and 9 of 1991, which as noticed hereinbefore, were disposed of directing that in the even they are aggrieved by an order of the Chief Labour Commissioner (Central), they may take recourse to such proceedings as are available to them in law. 21. It is interesting to note that in the interlocutory applications marked as I.A. No. 10 of 1995, the appellants themselves stated: ......The petitioners now will have to approach the Industrial Tribunal for this, which would take considerable time. In the meanwhile, these 1800 workmen and their families are on the streets...... 22. There cannot, thus, be any doubt whatsoever, that the appellants were fully aware of the fact that they were required to approach the Industrial Tribunal in terms of the provisions of the Industrial Disputes Act for ventilating their grievances. The submission of Mr. Shanti Bhushan to the effect that the High Court acts as an authority while exercising its power under Article 226 of the Constitution of India cannot be countenanced. The order of this Court dated 16th October, 1995, as quoted supra, is absolutely clear and unambiguous. The term authority used in this Courts order dated 16th October, 1995 must be read in the context in which it was used. The appellant in terms thereof could seek a reference which would mean a reference in terms of Section 10 of the Industrial Disputes Act. It could also approach the authority in accordance with law which would mean authority under a statute. The High Court, by no stretch of imagination, can be an authority under stature. 23. Furthermore, even otherwise, a disputed question of fact normally would not be entertained in a writ proceeding. This aspect of the matter has also been considered by a Constitution Bench of this Court in Steel Authority of India Ltd. and others vs. National Union Waterfront Workers and others [(2001) 7 SCC 1] . In any event, the orders of the Chief Labour Commissioner dated 4th January, 1995 also shows that other documents which were placed on record by the workmen had also been scrutinized and they had not been found reliable. 24. We are, therefore, of the opinion that no case has been made out for interference with the impugned judgment.
### Response:
0
### Explanation:
22. There cannot, thus, be any doubt whatsoever, that the appellants were fully aware of the fact that they were required to approach the Industrial Tribunal in terms of the provisions of the Industrial Disputes Act for ventilating their grievances. The submission of Mr. Shanti Bhushan to the effect that the High Court acts as an authority while exercising its power under Article 226 of the Constitution of India cannot be countenanced. The order of this Court dated 16th October, 1995, as quoted supra, is absolutely clear and unambiguous. The term authority used in this Courts order dated 16th October, 1995 must be read in the context in which it was used. The appellant in terms thereof could seek a reference which would mean a reference in terms of Section 10 of the Industrial Disputes Act. It could also approach the authority in accordance with law which would mean authority under a statute. The High Court, by no stretch of imagination, can be an authority under stature23. Furthermore, even otherwise, a disputed question of fact normally would not be entertained in a writ proceeding. This aspect of the matter has also been considered by a Constitution Bench of this Court in Steel Authority of India Ltd. and others vs. National Union Waterfront Workers and others [(2001) 7 SCC 1] . In any event, the orders of the Chief Labour Commissioner dated 4th January, 1995 also shows that other documents which were placed on record by the workmen had also been scrutinized and they had not been found reliable24. We are, therefore, of the opinion that no case has been made out for interference with the impugned judgment.
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Union of India Vs. K.P. Joseph & Others | been re-opened. To resolve this question, it is necessary to understand the provisions of the Order. The first sentence in para 3 of the Order makes it clear that it is applicable only to persons re-employed on or after 25-11-1958. The respondent No. 1 clearly does not come within this category. The Order then goes on to say that past cases will not be re-opened. That means that cases of persons re-employed prior to that date will not be re-opened. But the contention of the first respondent is that although he was re-employed prior to 25-11-1958, he is governed by clause (3) of paragraph 3, and as he has exercised the option pursuant to clause (4) of the Order he is entitled to the benefit of the Order. In other words, the contention was that an exception to the general rule that past cases will not be re-opened has been created by clause (3) of paragraph 3 of the Order in favour of persons who were re-employed from a date prior to 25-11-1958 for an unspecified period or for a period which extended beyond the date of the issue of the Order and who exercised the option to be brought under the provisions of the Order with immediate effect and as his case fell within the exception, he was entitled to the benefits of the Order. We think that the contention of the first respondent is well founded. It is no doubt true that past cases, namely, cases of persons re-employed prior to 25-11-1958 will not be re-opened. That is the general rule. But the effect of clause (3) of paragraph (3) is to create an exception to the general rule in the case of persons re-employed before 25-11-1958 for an unspecified period or for a period which extends beyond the date of the Order and who have exercised their option in writing to be brought under the Order.7. There is no dispute that the first respondent has exercised the option to be brought under the provisions of the Order. We, therefore, think that the High Court was right in its view that the first respondent was entitled to the benefit of the Order.8. The appellant, however, contended that the Order being an administrative direction conferred no justiciable right upon the first respondent which could be enforced in a Court by a writ or order in the nature of mandamus. The appellant submitted that the very foundation for the issue of a writ or an order in the nature of mandamus is the existence of a legal right and as an administrative order could confer no justiciable right, the High Court was wrong in issuing the order directing the second respondent to fix the pay of the first respondent in accordance with the Order.9. Generally speaking, an administrative Order confers no justiciable right, but this rule, like all other general rules, is subject to exceptions. This Court has held in Sant Ram Sharma v. State of Rajasthan, (1968) 1 SCR 111 = (AIR 1967 SC 1910 ) that although Government cannot supersede statutory rules by administrative instructions, yet, if the rules framed under Art. 309 of the Constitution are silent on any particular point, the Government can fill up gaps and supplement the rules and issue instructions not inconsistent with the rules already framed and these instructions will govern the conditions of service.10. In Union of India v. M/s. Indo Afghan Agencies Ltd. (1968) 2 SCR 366 at p. 377 = (AIR 1968 SC 718 ), this Court, in considering the nature of the Import Trade Policy said :"Granting that it is executive in character, this Court has held that Courts have the power in appropriate cases to compel performance of the obligations imposed by the Schemes upon the departmental authorities."To say that an administrative order can never confer any right would be too wide a proposition. There are administrative orders which confer rights and impose duties. It is because an administrative order can abridge or take away rights that we have imported the principle of natural justice of audid alteram partem into this area. A very perceptive writer has written :"Let us take one of Mr. Harrisons instances, a regulation from the British War Office that no recruit shall be enlisted who is not five feet six inches high. Suppose a recruiting officer musters in a man who is five feet five inches only in height, and pays him the Kings shilling; afterwards the officer is sued by the Government for being short in his accounts; among other items he claims to be allowed the shilling paid to the undersized recruit. The Court has to consider and apply this regulation and, whatever its effect may be, that effect will be given to it by the Court exactly as effect will be given to a statute providing that murderers shall be hanged, or that last wills must have two witnesses." (John Chipman Gray on "The Nature and Sources of the Law").11. We should not be understood as laying down any general proposition on this question. But we think that the Order in question conferred upon the first respondent the right to have his pay fixed in the manner specified in the Order and that was part of the conditions of his service. We see no reason why the Court should not enforce that right.12. It was contended on behalf of the appellant that the Order not being retrospective in character, the respondents pay should not have been fixed with retrospective effect from 2-7-1953.The order is not retrospective in character. The High Court was therefore wrong in fixing the pay with retrospective effect from 2-7-1953. The direction could only be to fix the pay with effect from the date of the Order and the first respondent did not contend otherwise in this Court. The second respondent will, therefore, fix the pay of the 1st respondent in accordance with the provisions of the Order with effect from the date of the Order. | 0[ds]Generally speaking, an administrative Order confers no justiciable right, but this rule, like all other general rules, is subject to exceptions. This Court has held in Sant Ram Sharma v. State of Rajasthan, (1968) 1 SCR 111 = (AIR 1967 SC 1910 ) that although Government cannot supersede statutory rules by administrative instructions, yet, if the rules framed under Art. 309 of the Constitution are silent on any particular point, the Government can fill up gaps and supplement the rules and issue instructions not inconsistent with the rules already framed and these instructions will govern the conditions of service.10. In Union of India v. M/s. Indo Afghan Agencies Ltd. (1968) 2 SCR 366 at p. 377 = (AIR 1968 SC 718 ), this Court, in considering the nature of the Import Trade Policy saidthat it is executive in character, this Court has held that Courts have the power in appropriate cases to compel performance of the obligations imposed by the Schemes upon the departmentalsay that an administrative order can never confer any right would be too wide a proposition. There are administrative orders which confer rights and impose duties. It is because an administrative order can abridge or take away rights that we have imported the principle of natural justice of audid alteram partem into this area. A very perceptive writer has writtenus take one of Mr. Harrisons instances, a regulation from the British War Office that no recruit shall be enlisted who is not five feet six inches high. Suppose a recruiting officer musters in a man who is five feet five inches only in height, and pays him the Kings shilling; afterwards the officer is sued by the Government for being short in his accounts; among other items he claims to be allowed the shilling paid to the undersized recruit. The Court has to consider and apply this regulation and, whatever its effect may be, that effect will be given to it by the Court exactly as effect will be given to a statute providing that murderers shall be hanged, or that last wills must have two witnesses." (John Chipman Gray on "The Nature and Sources of the Law").We should not be understood as laying down any general proposition on this question. But we think that the Order in question conferred upon the first respondent the right to have his pay fixed in the manner specified in the Order and that was part of the conditions of his service. We see no reason why the Court should not enforce that right. | 0 | 1,637 | 471 | ### 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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been re-opened. To resolve this question, it is necessary to understand the provisions of the Order. The first sentence in para 3 of the Order makes it clear that it is applicable only to persons re-employed on or after 25-11-1958. The respondent No. 1 clearly does not come within this category. The Order then goes on to say that past cases will not be re-opened. That means that cases of persons re-employed prior to that date will not be re-opened. But the contention of the first respondent is that although he was re-employed prior to 25-11-1958, he is governed by clause (3) of paragraph 3, and as he has exercised the option pursuant to clause (4) of the Order he is entitled to the benefit of the Order. In other words, the contention was that an exception to the general rule that past cases will not be re-opened has been created by clause (3) of paragraph 3 of the Order in favour of persons who were re-employed from a date prior to 25-11-1958 for an unspecified period or for a period which extended beyond the date of the issue of the Order and who exercised the option to be brought under the provisions of the Order with immediate effect and as his case fell within the exception, he was entitled to the benefits of the Order. We think that the contention of the first respondent is well founded. It is no doubt true that past cases, namely, cases of persons re-employed prior to 25-11-1958 will not be re-opened. That is the general rule. But the effect of clause (3) of paragraph (3) is to create an exception to the general rule in the case of persons re-employed before 25-11-1958 for an unspecified period or for a period which extends beyond the date of the Order and who have exercised their option in writing to be brought under the Order.7. There is no dispute that the first respondent has exercised the option to be brought under the provisions of the Order. We, therefore, think that the High Court was right in its view that the first respondent was entitled to the benefit of the Order.8. The appellant, however, contended that the Order being an administrative direction conferred no justiciable right upon the first respondent which could be enforced in a Court by a writ or order in the nature of mandamus. The appellant submitted that the very foundation for the issue of a writ or an order in the nature of mandamus is the existence of a legal right and as an administrative order could confer no justiciable right, the High Court was wrong in issuing the order directing the second respondent to fix the pay of the first respondent in accordance with the Order.9. Generally speaking, an administrative Order confers no justiciable right, but this rule, like all other general rules, is subject to exceptions. This Court has held in Sant Ram Sharma v. State of Rajasthan, (1968) 1 SCR 111 = (AIR 1967 SC 1910 ) that although Government cannot supersede statutory rules by administrative instructions, yet, if the rules framed under Art. 309 of the Constitution are silent on any particular point, the Government can fill up gaps and supplement the rules and issue instructions not inconsistent with the rules already framed and these instructions will govern the conditions of service.10. In Union of India v. M/s. Indo Afghan Agencies Ltd. (1968) 2 SCR 366 at p. 377 = (AIR 1968 SC 718 ), this Court, in considering the nature of the Import Trade Policy said :"Granting that it is executive in character, this Court has held that Courts have the power in appropriate cases to compel performance of the obligations imposed by the Schemes upon the departmental authorities."To say that an administrative order can never confer any right would be too wide a proposition. There are administrative orders which confer rights and impose duties. It is because an administrative order can abridge or take away rights that we have imported the principle of natural justice of audid alteram partem into this area. A very perceptive writer has written :"Let us take one of Mr. Harrisons instances, a regulation from the British War Office that no recruit shall be enlisted who is not five feet six inches high. Suppose a recruiting officer musters in a man who is five feet five inches only in height, and pays him the Kings shilling; afterwards the officer is sued by the Government for being short in his accounts; among other items he claims to be allowed the shilling paid to the undersized recruit. The Court has to consider and apply this regulation and, whatever its effect may be, that effect will be given to it by the Court exactly as effect will be given to a statute providing that murderers shall be hanged, or that last wills must have two witnesses." (John Chipman Gray on "The Nature and Sources of the Law").11. We should not be understood as laying down any general proposition on this question. But we think that the Order in question conferred upon the first respondent the right to have his pay fixed in the manner specified in the Order and that was part of the conditions of his service. We see no reason why the Court should not enforce that right.12. It was contended on behalf of the appellant that the Order not being retrospective in character, the respondents pay should not have been fixed with retrospective effect from 2-7-1953.The order is not retrospective in character. The High Court was therefore wrong in fixing the pay with retrospective effect from 2-7-1953. The direction could only be to fix the pay with effect from the date of the Order and the first respondent did not contend otherwise in this Court. The second respondent will, therefore, fix the pay of the 1st respondent in accordance with the provisions of the Order with effect from the date of the Order.
### Response:
0
### Explanation:
Generally speaking, an administrative Order confers no justiciable right, but this rule, like all other general rules, is subject to exceptions. This Court has held in Sant Ram Sharma v. State of Rajasthan, (1968) 1 SCR 111 = (AIR 1967 SC 1910 ) that although Government cannot supersede statutory rules by administrative instructions, yet, if the rules framed under Art. 309 of the Constitution are silent on any particular point, the Government can fill up gaps and supplement the rules and issue instructions not inconsistent with the rules already framed and these instructions will govern the conditions of service.10. In Union of India v. M/s. Indo Afghan Agencies Ltd. (1968) 2 SCR 366 at p. 377 = (AIR 1968 SC 718 ), this Court, in considering the nature of the Import Trade Policy saidthat it is executive in character, this Court has held that Courts have the power in appropriate cases to compel performance of the obligations imposed by the Schemes upon the departmentalsay that an administrative order can never confer any right would be too wide a proposition. There are administrative orders which confer rights and impose duties. It is because an administrative order can abridge or take away rights that we have imported the principle of natural justice of audid alteram partem into this area. A very perceptive writer has writtenus take one of Mr. Harrisons instances, a regulation from the British War Office that no recruit shall be enlisted who is not five feet six inches high. Suppose a recruiting officer musters in a man who is five feet five inches only in height, and pays him the Kings shilling; afterwards the officer is sued by the Government for being short in his accounts; among other items he claims to be allowed the shilling paid to the undersized recruit. The Court has to consider and apply this regulation and, whatever its effect may be, that effect will be given to it by the Court exactly as effect will be given to a statute providing that murderers shall be hanged, or that last wills must have two witnesses." (John Chipman Gray on "The Nature and Sources of the Law").We should not be understood as laying down any general proposition on this question. But we think that the Order in question conferred upon the first respondent the right to have his pay fixed in the manner specified in the Order and that was part of the conditions of his service. We see no reason why the Court should not enforce that right.
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Biswambhar Singh Vs. The State Of Orissa And Another | the record in support of such an unusual arrangement. If the forests are included within the boundaries of the estate and if the Zamindar of Nagra "holds" the estate under the Raja of Gangpur, he must be holding the forests also under the Raja of Gangpur. The suggestion that the proprietor of Nagra accepted a grant from the Raja of Gangpur only in respect of the collection of Mahals or villages but retained his independent chieftainship with respect to the forest lands interspersed between the villages but situate within the geographical limits of the entire estate is hardly convincing. For the above reasons and those set out in the judgment of the learned Chief Justice we are of the opinion that the forest lands are included within the estate held by the Zamindar of Nagra under the Raja of Gangpur.15. In the view that the Zamindar of Nagra is an intermediary and his territories are an estate it must follow that the appellant Shri Sibnarayan Singh Mahapatra cannot get any relief if the Act is valid. Learned counsel appearing in support of his appeal (No. 169 to 1953) then falls back on the question of the constitutionality of the Act. Here he has a preliminary hurdle to get over, for it the Act is covered and protected by Article 31 - then the Act cannot be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by any Provisions of Part III of the Constitution.It has, therefore, been the endeavour of learned counsel for the appellant before us, as it was before the High Court, that Nagra was not an "estate" as defined in Article 31-A (2) (a). The learned Chief Justice took the view that Nagra was an estate as defined and consequently the Act was within the protection of Article 31-A but Narasimham, J., took the opposite view. The third Judge Mahapatra, J., agreed with the learned Chief Justice. In the view we take on the question of the alleged violation of the provisions of Article 14 it is not necessary for us, for the purpose of disposing of this appeal, to enter into a long discussion on the applicability of Article 31-A, to the impugned Act.16. On the assumption, then, that Article 31-A is out of the way the Act in question becomes liable to attack both under Article 31(2) and Article 14. Learned counsel appearing before us did not call in aid Article 31(2) but confined himself to Article 14. In the High Court Article 14 was invoked in two ways namely (1) that the provision for assessing and fixing the amount of compensation is discriminatory and (2) that section 3 which gives an unfettered discretion to the State Government to issue or not to issue notification with respect to an estate is discriminatory in that it enables the State Government to issue notification with respect to those Zamindars who opposed the ruling party in the election and to refrain from doing so with respect to others who were loyal to that party. The objection as to discrimination founded on the manner of assessment of the compensation has not been pressed before us and learned counsel confined his arguments to the second ground. Here again the learned Chief Justice held that there was violation of Article 14 while Narasimham, J, took the opposite view. Mr. Justice Mahapatra, however agreed with the Chief Justice. We find ourselves in agreement with the majority view.17. The long title of the Act and the two preambles which have been quoted above clearly indicate that the object and purpose of the Act is to abolish all the rights, title and interest in land of Intermediaries by whatever name known. This is a clear enunciation of the policy which is sought to be implemented by the operative provisions of the Act. Whatever discretion has been vested in the State Government under section 3 or section 4 must be exercised in the light of this policy and, therefore, it cannot be said to be an absolute or unfettered discretion, for sooner or later all estates must perforce be abolished. From the very nature of things a certain amount of discretionary latitude had to be given to the State Government. It would have been a colosal task if the State Government had to take over all the estates at one and the same time. It would have broken down the entire administrative machinery. It could not be possible to collect sufficient staff to take over and discharge the responsibilities. It would be difficult to arrange for the requisite finance all at once. It was, therefore, imperative to confer some discretion on the State Government. It has not been suggested or shown that in practice any discrimination has been made. If any notification or order is made, not in furthereance of the policy of the Act but in bad faith and as and by way of discrimination such notification or order, which by virtue of Article 13(3) comes within the definition of "law", will itself be void under Article 13(2). Learned counsel appearing for the appellant has not shown, by advancing any cogent and convincing argument, how and why the reasonings adopted by the majority of the learned Judges below are faulty or untenable. In the premises, it is not necessary for us to pursue this matter further beyond saying that we find ourselves in agreement with the conclusions of the majority of the learned Judges of the High Court.18. Learned counsel for the appellant referred to another point, namely that the amending Act altering the definition of the date of vesting was invalid as there was no public purpose for taking away the vested right that the original definition of the expression in the Act had given to the persons whose estates had been notified. Learned counsel, however, did not seriously press this objection and nothing further need be said about it. | 1[ds]9. We have had the advantage of perusing the judgment prepared by our learned brother Bose and we agree, substantially for reasons stated therein, that the appellants Shri Biswambhar Singh and Shri Janardhan Singh are not intermediaries as defined in section 2(h) and their respective properties namely, Hemgir and Sarapgarh are not "estate" within the meaning of section 2(g) and that being so the State Government had no jurisdiction or authority to issue any notification under section 3 with respect to their properties. In this view of the matter no constitutional questions need be considered in Appeals Nos. 167 and 168 of 1953, which will therefore have to beis, therefore, no getting away from the fact that an Ekrarnama had been executed by the Raja of Gangapur and Balki Mahapatra, the predecessor, in tittle of this appellant, under which Balki Mahapatra "held" the estate of Nagra upon terms of payment of an annual rent. Indeed, the appellant Shri Sibnarayan Singh Mahapatra firmly takes his stand on the Ekarnama and its terms.12. A question has been raised that the original Ekarnama of 1879 has not been filed and as no evidence was led to explain the reason for its non-production, secondary evidence of its contents is inadmissible. We see no force in this belated contention. The Rubakari and the other documents referred to above were filed without any objection as to their admissibility on the ground that they are merely secondary evidence of the contents of the Ekarnama. Indeed, in the matter of production and proof of documents the parties undoubtedly proceeded a little informally.It may also be mentioned here that in the grounds of appeal set forth in the petition for leave to this Court no grievance was made that secondary evidence of the contents of the Ekrarnama had been wrongly let in. In the circumstances, this appellant cannot now be heard to complain of admission of inadmissible evidence as to the terms of the Ekrarnama. Apart from this, the recital of the Ekrarnama and its terms in an ancient public document like the Rubakari whose authenticity has not been, nor indeed could be doubted furnishes evidence of the existence and genuineness of the settlement arrived at by the parties.13. Proceeding, then, or the footing that Balki Mahapatra and his descendants including the present proprietor held the Nagra Zamindari Estate under the Ekrarnama on the terms of payment of a fixed annual rent there can arise no question as to the real status of the proprietor of nagra vis-a-vis the Raja of Gangpur since 1879, whatever the position may have been ;prior thereto. It is therefore, quite clear that the proprietors of Nagra are Zamindars within the meaning of the Ekrarnama, call it a deed or "other instrument" as one likes. In this view of the matter the appellant Shri Sibnarayan Singh Mahapatra is an intermediary as defined in section 2(h) of the Act and his estate is an "estate" within the meaning of section 2(g) and consequently there is no escape from the conclusion that the State Government had simple jurisdiction or authority to issue a notification under section 3 of theis no dispute that geographically the forest tract is included within the Nagra Zamindari estate. Out attention was drawn to certain maps or plans which clearly indicate that the forest lands are scattered in blocks within the boundaries of the estate. There is no dispute that the annual rent fixed under the Ekrarnama was so payable in respect of the wholeis no evidence on record that in fixing the annual rent the forests were left out of consideration in the sense that they were treated as a separate item of property. There is no proof on the record in support of such an unusual arrangement. If the forests are included within the boundaries of the estate and if the Zamindar of Nagra "holds" the estate under the Raja of Gangpur, he must be holding the forests also under the Raja of Gangpur. The suggestion that the proprietor of Nagra accepted a grant from the Raja of Gangpur only in respect of the collection of Mahals or villages but retained his independent chieftainship with respect to the forest lands interspersed between the villages but situate within the geographical limits of the entire estate is hardly convincing. For the above reasons and those set out in the judgment of the learned Chief Justice we are of the opinion that the forest lands are included within the estate held by the Zamindar of Nagra under the Raja of Gangpur.15. In the view that the Zamindar of Nagra is an intermediary and his territories are an estate it must follow that the appellant Shri Sibnarayan Singh Mahapatra cannot get any relief if the Act is valid. Learned counsel appearing in support of his appeal (No. 169 to 1953) then falls back on the question of the constitutionality of the Act. Here he has a preliminary hurdle to get over, for it the Act is covered and protected by Article 31 - then the Act cannot be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by any Provisions of Part III of thethe view we take on the question of the alleged violation of the provisions of Article 14 it is not necessary for us, for the purpose of disposing of this appeal, to enter into a long discussion on the applicability of Article 31-A, to the impugnedis a clear enunciation of the policy which is sought to be implemented by the operative provisions of the Act. Whatever discretion has been vested in the State Government under section 3 or section 4 must be exercised in the light of this policy and, therefore, it cannot be said to be an absolute or unfettered discretion, for sooner or later all estates must perforce be abolished. From the very nature of things a certain amount of discretionary latitude had to be given to the State Government. It would have been a colosal task if the State Government had to take over all the estates at one and the same time. It would have broken down the entire administrative machinery. It could not be possible to collect sufficient staff to take over and discharge the responsibilities. It would be difficult to arrange for the requisite finance all at once. It was, therefore, imperative to confer some discretion on the State Government. It has not been suggested or shown that in practice any discrimination has been made. If any notification or order is made, not in furthereance of the policy of the Act but in bad faith and as and by way of discrimination such notification or order, which by virtue of Article 13(3) comes within the definition of "law", will itself be void under Article 13(2). Learned counsel appearing for the appellant has not shown, by advancing any cogent and convincing argument, how and why the reasonings adopted by the majority of the learned Judges below are faulty or untenable. In the premises, it is not necessary for us to pursue this matter further beyond saying that we find ourselves in agreement with the conclusions of the majority of the learned Judges of the High Court. | 1 | 4,788 | 1,326 | ### 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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the record in support of such an unusual arrangement. If the forests are included within the boundaries of the estate and if the Zamindar of Nagra "holds" the estate under the Raja of Gangpur, he must be holding the forests also under the Raja of Gangpur. The suggestion that the proprietor of Nagra accepted a grant from the Raja of Gangpur only in respect of the collection of Mahals or villages but retained his independent chieftainship with respect to the forest lands interspersed between the villages but situate within the geographical limits of the entire estate is hardly convincing. For the above reasons and those set out in the judgment of the learned Chief Justice we are of the opinion that the forest lands are included within the estate held by the Zamindar of Nagra under the Raja of Gangpur.15. In the view that the Zamindar of Nagra is an intermediary and his territories are an estate it must follow that the appellant Shri Sibnarayan Singh Mahapatra cannot get any relief if the Act is valid. Learned counsel appearing in support of his appeal (No. 169 to 1953) then falls back on the question of the constitutionality of the Act. Here he has a preliminary hurdle to get over, for it the Act is covered and protected by Article 31 - then the Act cannot be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by any Provisions of Part III of the Constitution.It has, therefore, been the endeavour of learned counsel for the appellant before us, as it was before the High Court, that Nagra was not an "estate" as defined in Article 31-A (2) (a). The learned Chief Justice took the view that Nagra was an estate as defined and consequently the Act was within the protection of Article 31-A but Narasimham, J., took the opposite view. The third Judge Mahapatra, J., agreed with the learned Chief Justice. In the view we take on the question of the alleged violation of the provisions of Article 14 it is not necessary for us, for the purpose of disposing of this appeal, to enter into a long discussion on the applicability of Article 31-A, to the impugned Act.16. On the assumption, then, that Article 31-A is out of the way the Act in question becomes liable to attack both under Article 31(2) and Article 14. Learned counsel appearing before us did not call in aid Article 31(2) but confined himself to Article 14. In the High Court Article 14 was invoked in two ways namely (1) that the provision for assessing and fixing the amount of compensation is discriminatory and (2) that section 3 which gives an unfettered discretion to the State Government to issue or not to issue notification with respect to an estate is discriminatory in that it enables the State Government to issue notification with respect to those Zamindars who opposed the ruling party in the election and to refrain from doing so with respect to others who were loyal to that party. The objection as to discrimination founded on the manner of assessment of the compensation has not been pressed before us and learned counsel confined his arguments to the second ground. Here again the learned Chief Justice held that there was violation of Article 14 while Narasimham, J, took the opposite view. Mr. Justice Mahapatra, however agreed with the Chief Justice. We find ourselves in agreement with the majority view.17. The long title of the Act and the two preambles which have been quoted above clearly indicate that the object and purpose of the Act is to abolish all the rights, title and interest in land of Intermediaries by whatever name known. This is a clear enunciation of the policy which is sought to be implemented by the operative provisions of the Act. Whatever discretion has been vested in the State Government under section 3 or section 4 must be exercised in the light of this policy and, therefore, it cannot be said to be an absolute or unfettered discretion, for sooner or later all estates must perforce be abolished. From the very nature of things a certain amount of discretionary latitude had to be given to the State Government. It would have been a colosal task if the State Government had to take over all the estates at one and the same time. It would have broken down the entire administrative machinery. It could not be possible to collect sufficient staff to take over and discharge the responsibilities. It would be difficult to arrange for the requisite finance all at once. It was, therefore, imperative to confer some discretion on the State Government. It has not been suggested or shown that in practice any discrimination has been made. If any notification or order is made, not in furthereance of the policy of the Act but in bad faith and as and by way of discrimination such notification or order, which by virtue of Article 13(3) comes within the definition of "law", will itself be void under Article 13(2). Learned counsel appearing for the appellant has not shown, by advancing any cogent and convincing argument, how and why the reasonings adopted by the majority of the learned Judges below are faulty or untenable. In the premises, it is not necessary for us to pursue this matter further beyond saying that we find ourselves in agreement with the conclusions of the majority of the learned Judges of the High Court.18. Learned counsel for the appellant referred to another point, namely that the amending Act altering the definition of the date of vesting was invalid as there was no public purpose for taking away the vested right that the original definition of the expression in the Act had given to the persons whose estates had been notified. Learned counsel, however, did not seriously press this objection and nothing further need be said about it.
### Response:
1
### Explanation:
The Rubakari and the other documents referred to above were filed without any objection as to their admissibility on the ground that they are merely secondary evidence of the contents of the Ekarnama. Indeed, in the matter of production and proof of documents the parties undoubtedly proceeded a little informally.It may also be mentioned here that in the grounds of appeal set forth in the petition for leave to this Court no grievance was made that secondary evidence of the contents of the Ekrarnama had been wrongly let in. In the circumstances, this appellant cannot now be heard to complain of admission of inadmissible evidence as to the terms of the Ekrarnama. Apart from this, the recital of the Ekrarnama and its terms in an ancient public document like the Rubakari whose authenticity has not been, nor indeed could be doubted furnishes evidence of the existence and genuineness of the settlement arrived at by the parties.13. Proceeding, then, or the footing that Balki Mahapatra and his descendants including the present proprietor held the Nagra Zamindari Estate under the Ekrarnama on the terms of payment of a fixed annual rent there can arise no question as to the real status of the proprietor of nagra vis-a-vis the Raja of Gangpur since 1879, whatever the position may have been ;prior thereto. It is therefore, quite clear that the proprietors of Nagra are Zamindars within the meaning of the Ekrarnama, call it a deed or "other instrument" as one likes. In this view of the matter the appellant Shri Sibnarayan Singh Mahapatra is an intermediary as defined in section 2(h) of the Act and his estate is an "estate" within the meaning of section 2(g) and consequently there is no escape from the conclusion that the State Government had simple jurisdiction or authority to issue a notification under section 3 of theis no dispute that geographically the forest tract is included within the Nagra Zamindari estate. Out attention was drawn to certain maps or plans which clearly indicate that the forest lands are scattered in blocks within the boundaries of the estate. There is no dispute that the annual rent fixed under the Ekrarnama was so payable in respect of the wholeis no evidence on record that in fixing the annual rent the forests were left out of consideration in the sense that they were treated as a separate item of property. There is no proof on the record in support of such an unusual arrangement. If the forests are included within the boundaries of the estate and if the Zamindar of Nagra "holds" the estate under the Raja of Gangpur, he must be holding the forests also under the Raja of Gangpur. The suggestion that the proprietor of Nagra accepted a grant from the Raja of Gangpur only in respect of the collection of Mahals or villages but retained his independent chieftainship with respect to the forest lands interspersed between the villages but situate within the geographical limits of the entire estate is hardly convincing. For the above reasons and those set out in the judgment of the learned Chief Justice we are of the opinion that the forest lands are included within the estate held by the Zamindar of Nagra under the Raja of Gangpur.15. In the view that the Zamindar of Nagra is an intermediary and his territories are an estate it must follow that the appellant Shri Sibnarayan Singh Mahapatra cannot get any relief if the Act is valid. Learned counsel appearing in support of his appeal (No. 169 to 1953) then falls back on the question of the constitutionality of the Act. Here he has a preliminary hurdle to get over, for it the Act is covered and protected by Article 31 - then the Act cannot be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by any Provisions of Part III of thethe view we take on the question of the alleged violation of the provisions of Article 14 it is not necessary for us, for the purpose of disposing of this appeal, to enter into a long discussion on the applicability of Article 31-A, to the impugnedis a clear enunciation of the policy which is sought to be implemented by the operative provisions of the Act. Whatever discretion has been vested in the State Government under section 3 or section 4 must be exercised in the light of this policy and, therefore, it cannot be said to be an absolute or unfettered discretion, for sooner or later all estates must perforce be abolished. From the very nature of things a certain amount of discretionary latitude had to be given to the State Government. It would have been a colosal task if the State Government had to take over all the estates at one and the same time. It would have broken down the entire administrative machinery. It could not be possible to collect sufficient staff to take over and discharge the responsibilities. It would be difficult to arrange for the requisite finance all at once. It was, therefore, imperative to confer some discretion on the State Government. It has not been suggested or shown that in practice any discrimination has been made. If any notification or order is made, not in furthereance of the policy of the Act but in bad faith and as and by way of discrimination such notification or order, which by virtue of Article 13(3) comes within the definition of "law", will itself be void under Article 13(2). Learned counsel appearing for the appellant has not shown, by advancing any cogent and convincing argument, how and why the reasonings adopted by the majority of the learned Judges below are faulty or untenable. In the premises, it is not necessary for us to pursue this matter further beyond saying that we find ourselves in agreement with the conclusions of the majority of the learned Judges of the High Court.
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B.L. Goel Vs. State of Uttar Pradesh and Ors | posts on officiating basis only, and they (promotees) could claim confirmation only when substantive vacancies/posts became available to them. It is further argued that the intendment of Rule 8 of the 1953 Rules was that 25 per cent of the vacancies in U.P. Higher Judicial Service should be filled by direct recruitment, and this, according to the learned Counsel implies that confirmation of direct recruits and promotees at any given time should also be made in the ratio of 1 : 3 by rotation. It is urged that when the matter is considered from this angle, the en bloc confirmation of 12 promotees with effect from April 1, 1966 followed by the confirmation of the three direct recruits (respondents 3, 4 and 5) with effect from May 30, 1968, May 27, 1968 and June 1968, was neither improper, nor arbitrary. Learned Counsel further maintains that equities are wholly on the side of respondents 3, 4 and 5 who are not younger than the appellant, and this should also be taken into account as a factor in their favour. 19. The last but lukewarm contention of Shri Andley is that it is not clearly borne out by the record that the 22 temporary posts, converted into permanent ones with effect from April 1, 1966, were created for the purpose of absorbing the promotees only. 20. We do not think it necessary to decide the question with regard to the constitutional validity of Rules 20 and 23, because this appeal can be disposed of on the second ground urged by Shri Garg. Before dealing with that contention, it is necessary to have a clear picture of its factual premises. There is no dispute that the appellant was promoted as officiating Civil and Sessions Judge in July 1960, while Respondents 3, 4 and 5 joined the service as Civil and Sessions Judges on probation, about six years later in May/June, 1966. We are unable to accept Shri Andleys argument that the date of the Respondents entry into service should be assumed as the date in 1964, when the Selection Committee selected them for appointment. There is no warrant for importing such a fiction. The stark fact remains that respondents 3, 4 and 5 joined the service in May/June, 1966. 21. It is further an uncontroverted fact that the appellant was promoted to the senior grade as officiating District and Sessions Judge about one year prior to the respondents promotion to that grade. It is further clear from the record (vide Paragraph 6(g) of the affidavit of Shri Radhika Raman, Under Secretary to the Government of Uttar Pradesh: Annexure IV A to the Rejoinder Affidavit of Respondents 3 and 5 filed in the High Court as also the copies of the Notifications filed by the appellant in this Court) that the State Government created (by conversion of the existing temporary posts/courts) 22 permanent posts/courts of Civil and Sessions Judges, under G.O. Nos. 870/7-1-503, dated 19-6-1971 with effect from 1-1-69. Later on, by another Government Order No. 2693/VII/A-Nyay/503/70, dated 3-3-1973, in modification of the earlier notification, the creation of the aforesaid 22 permanent posts was given effect from 1-4-1966. By the impugned Government Notification of March 19, 1975, against 12 of those 22 posts, twelve promoted officers shown at Serial Nos. 24 to 35 were confirmed with effect from 1-4-1966. Against the next 3 of those 22 posts, respondents 3, 4 and 5 were confirmed with effect from 31-5-68, 27-5-68 and 1-6-68. Against the remaining seven promoted officers including the appellant, were confirmed with effect from January 1, 1969. The first proviso to Rule 8 of 1953 Rules which provided for a quota of 25% for direct recruitment and 75% for promotion, was specifically declared void by this Court in Chandra Mohans case decided in 1966. That void Rule, being non-existent, was not available for the purposes of confirmation etc. 22. After considering the entire material on record and hearing the Counsel for the parties, including Shri Dikshit appearing for the State, we are unable to appreciate, why the appellant like 12 other promoted officers, was not confirmed with effect from April 1, 1966, when he was continuously working as officiating Civil and Sessions Judge from July, 1960. 23. In the case of promoted officers, the main criteria to be considered for their confirmation are : (i) Availability of a substantive vacancy/post. (ii) Suitability for the post. 24. Here, in the case of the appellant, a substantive post was available to him with effect from April 1, 1966, when respondents 3, 4 and 5 had not even been appointed, on probation or otherwise, to the service. By that date, April 1, 1966, he had put in service as officiating Civil and Sessions Judge for a period of 5 years and 9 months approximately. There is nothing on record to suggest that by or on April 1, 1966, he was not found suitable for confirmation. Why was he, then, not accorded the same treatment in the matter of fixing the date of his confirmation as had been meted out to twelve promoted officers who were confirmed with effect from April 1, 1966. Shri Dikshit has not been able to satisfy us that in not allocating 1-4-66 to the appellant as the date of his confirmation, the Government were acting according to any intelligible differentia or reasonable principle. Nor is any a principle justifying a differential treatment to the appellant in the matter of fixing the date of his confirmation, discernible from the impugned Notification dated March 19, 1975, itself. 25. We are therefore, of opinion that this Government Notification dated March 19, 1975 cannot, as it stands, be sustained and needs reconsideration. 26. The same comments apply mutatis mutandis to the impugned Notification, dated July 22, 1977, issued by the High Court. Moreover, once it is found that the Notification dated March 19, 1975 cannot be sustained, the foundation for fixing dates of confirmation and determining relative seniority of District and Sessions Judges will also crumble. | 1[ds]20. We do not think it necessary to decide the question with regard to the constitutional validity of Rules 20 and 23, because this appeal can be disposed of on the second ground urged by Shri Garg.There is no dispute that the appellant was promoted as officiating Civil and Sessions Judge in July 1960, while Respondents 3, 4 and 5 joined the service as Civil and Sessions Judges on probation, about six years later in May/June, 1966. We are unable to accept Shri Andleys argument that the date of the Respondents entry into service should be assumed as the date in 1964, when the Selection Committee selected them for appointment. There is no warrant for importing such a fiction. The stark fact remains that respondents 3, 4 and 5 joined the service in May/June, 1966.21. It is further an uncontroverted fact that the appellant was promoted to the senior grade as officiating District and Sessions Judge about one year prior to the respondents promotion to that grade. It is further clear from the record (vide Paragraph 6(g) of the affidavit of Shri Radhika Raman, Under Secretary to the Government of Uttar Pradesh: Annexure IV A to the Rejoinder Affidavit of Respondents 3 and 5 filed in the High Court as also the copies of the Notifications filed by the appellant in this Court) that the State Government created (by conversion of the existing temporary posts/courts) 22 permanent posts/courts of Civil and Sessions Judges, under G.O. Nos. 870/7-1-503, dated 19-6-1971 with effect from 1-1-69. Later on, by another Government Order No. 2693/VII/A-Nyay/503/70, dated 3-3-1973, in modification of the earlier notification, the creation of the aforesaid 22 permanent posts was given effect from 1-4-1966. By the impugned Government Notification of March 19, 1975, against 12 of those 22 posts, twelve promoted officers shown at Serial Nos. 24 to 35 were confirmed with effect from 1-4-1966. Against the next 3 of those 22 posts, respondents 3, 4 and 5 were confirmed with effect from 31-5-68, 27-5-68 and 1-6-68. Against the remaining seven promoted officers including the appellant, were confirmed with effect from January 1, 1969. The first proviso to Rule 8 of 1953 Rules which provided for a quota of 25% for direct recruitment and 75% for promotion, was specifically declared void by this Court in Chandra Mohans case decided in 1966. That void Rule, being non-existent, was not available for the purposes of confirmation etc.22. After considering the entire material on record and hearing the Counsel for the parties, including Shri Dikshit appearing for the State, we are unable to appreciate, why the appellant like 12 other promoted officers, was not confirmed with effect from April 1, 1966, when he was continuously working as officiating Civil and Sessions Judge from July, 1960.23. In the case of promoted officers, the main criteria to be considered for their confirmation are :(i) Availability of a substantive vacancy/post.(ii) Suitability for the post.24. Here, in the case of the appellant, a substantive post was available to him with effect from April 1, 1966, when respondents 3, 4 and 5 had not even been appointed, on probation or otherwise, to the service. By that date, April 1, 1966, he had put in service as officiating Civil and Sessions Judge for a period of 5 years and 9 months approximately. There is nothing on record to suggest that by or on April 1, 1966, he was not found suitable for confirmation. Why was he, then, not accorded the same treatment in the matter of fixing the date of his confirmation as had been meted out to twelve promoted officers who were confirmed with effect from April 1, 1966. Shri Dikshit has not been able to satisfy us that in not allocating 1-4-66 to the appellant as the date of his confirmation, the Government were acting according to any intelligible differentia or reasonable principle. Nor is any a principle justifying a differential treatment to the appellant in the matter of fixing the date of his confirmation, discernible from the impugned Notification dated March 19, 1975, itself.25. We are therefore, of opinion that this Government Notification dated March 19, 1975 cannot, as it stands, be sustained and needs reconsideration.26. The same comments apply mutatis mutandis to the impugned Notification, dated July 22, 1977, issued by the High Court. Moreover, once it is found that the Notification dated March 19, 1975 cannot be sustained, the foundation for fixing dates of confirmation and determining relative seniority of District and Sessions Judges will also crumble. | 1 | 4,348 | 865 | ### 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:
posts on officiating basis only, and they (promotees) could claim confirmation only when substantive vacancies/posts became available to them. It is further argued that the intendment of Rule 8 of the 1953 Rules was that 25 per cent of the vacancies in U.P. Higher Judicial Service should be filled by direct recruitment, and this, according to the learned Counsel implies that confirmation of direct recruits and promotees at any given time should also be made in the ratio of 1 : 3 by rotation. It is urged that when the matter is considered from this angle, the en bloc confirmation of 12 promotees with effect from April 1, 1966 followed by the confirmation of the three direct recruits (respondents 3, 4 and 5) with effect from May 30, 1968, May 27, 1968 and June 1968, was neither improper, nor arbitrary. Learned Counsel further maintains that equities are wholly on the side of respondents 3, 4 and 5 who are not younger than the appellant, and this should also be taken into account as a factor in their favour. 19. The last but lukewarm contention of Shri Andley is that it is not clearly borne out by the record that the 22 temporary posts, converted into permanent ones with effect from April 1, 1966, were created for the purpose of absorbing the promotees only. 20. We do not think it necessary to decide the question with regard to the constitutional validity of Rules 20 and 23, because this appeal can be disposed of on the second ground urged by Shri Garg. Before dealing with that contention, it is necessary to have a clear picture of its factual premises. There is no dispute that the appellant was promoted as officiating Civil and Sessions Judge in July 1960, while Respondents 3, 4 and 5 joined the service as Civil and Sessions Judges on probation, about six years later in May/June, 1966. We are unable to accept Shri Andleys argument that the date of the Respondents entry into service should be assumed as the date in 1964, when the Selection Committee selected them for appointment. There is no warrant for importing such a fiction. The stark fact remains that respondents 3, 4 and 5 joined the service in May/June, 1966. 21. It is further an uncontroverted fact that the appellant was promoted to the senior grade as officiating District and Sessions Judge about one year prior to the respondents promotion to that grade. It is further clear from the record (vide Paragraph 6(g) of the affidavit of Shri Radhika Raman, Under Secretary to the Government of Uttar Pradesh: Annexure IV A to the Rejoinder Affidavit of Respondents 3 and 5 filed in the High Court as also the copies of the Notifications filed by the appellant in this Court) that the State Government created (by conversion of the existing temporary posts/courts) 22 permanent posts/courts of Civil and Sessions Judges, under G.O. Nos. 870/7-1-503, dated 19-6-1971 with effect from 1-1-69. Later on, by another Government Order No. 2693/VII/A-Nyay/503/70, dated 3-3-1973, in modification of the earlier notification, the creation of the aforesaid 22 permanent posts was given effect from 1-4-1966. By the impugned Government Notification of March 19, 1975, against 12 of those 22 posts, twelve promoted officers shown at Serial Nos. 24 to 35 were confirmed with effect from 1-4-1966. Against the next 3 of those 22 posts, respondents 3, 4 and 5 were confirmed with effect from 31-5-68, 27-5-68 and 1-6-68. Against the remaining seven promoted officers including the appellant, were confirmed with effect from January 1, 1969. The first proviso to Rule 8 of 1953 Rules which provided for a quota of 25% for direct recruitment and 75% for promotion, was specifically declared void by this Court in Chandra Mohans case decided in 1966. That void Rule, being non-existent, was not available for the purposes of confirmation etc. 22. After considering the entire material on record and hearing the Counsel for the parties, including Shri Dikshit appearing for the State, we are unable to appreciate, why the appellant like 12 other promoted officers, was not confirmed with effect from April 1, 1966, when he was continuously working as officiating Civil and Sessions Judge from July, 1960. 23. In the case of promoted officers, the main criteria to be considered for their confirmation are : (i) Availability of a substantive vacancy/post. (ii) Suitability for the post. 24. Here, in the case of the appellant, a substantive post was available to him with effect from April 1, 1966, when respondents 3, 4 and 5 had not even been appointed, on probation or otherwise, to the service. By that date, April 1, 1966, he had put in service as officiating Civil and Sessions Judge for a period of 5 years and 9 months approximately. There is nothing on record to suggest that by or on April 1, 1966, he was not found suitable for confirmation. Why was he, then, not accorded the same treatment in the matter of fixing the date of his confirmation as had been meted out to twelve promoted officers who were confirmed with effect from April 1, 1966. Shri Dikshit has not been able to satisfy us that in not allocating 1-4-66 to the appellant as the date of his confirmation, the Government were acting according to any intelligible differentia or reasonable principle. Nor is any a principle justifying a differential treatment to the appellant in the matter of fixing the date of his confirmation, discernible from the impugned Notification dated March 19, 1975, itself. 25. We are therefore, of opinion that this Government Notification dated March 19, 1975 cannot, as it stands, be sustained and needs reconsideration. 26. The same comments apply mutatis mutandis to the impugned Notification, dated July 22, 1977, issued by the High Court. Moreover, once it is found that the Notification dated March 19, 1975 cannot be sustained, the foundation for fixing dates of confirmation and determining relative seniority of District and Sessions Judges will also crumble.
### Response:
1
### Explanation:
20. We do not think it necessary to decide the question with regard to the constitutional validity of Rules 20 and 23, because this appeal can be disposed of on the second ground urged by Shri Garg.There is no dispute that the appellant was promoted as officiating Civil and Sessions Judge in July 1960, while Respondents 3, 4 and 5 joined the service as Civil and Sessions Judges on probation, about six years later in May/June, 1966. We are unable to accept Shri Andleys argument that the date of the Respondents entry into service should be assumed as the date in 1964, when the Selection Committee selected them for appointment. There is no warrant for importing such a fiction. The stark fact remains that respondents 3, 4 and 5 joined the service in May/June, 1966.21. It is further an uncontroverted fact that the appellant was promoted to the senior grade as officiating District and Sessions Judge about one year prior to the respondents promotion to that grade. It is further clear from the record (vide Paragraph 6(g) of the affidavit of Shri Radhika Raman, Under Secretary to the Government of Uttar Pradesh: Annexure IV A to the Rejoinder Affidavit of Respondents 3 and 5 filed in the High Court as also the copies of the Notifications filed by the appellant in this Court) that the State Government created (by conversion of the existing temporary posts/courts) 22 permanent posts/courts of Civil and Sessions Judges, under G.O. Nos. 870/7-1-503, dated 19-6-1971 with effect from 1-1-69. Later on, by another Government Order No. 2693/VII/A-Nyay/503/70, dated 3-3-1973, in modification of the earlier notification, the creation of the aforesaid 22 permanent posts was given effect from 1-4-1966. By the impugned Government Notification of March 19, 1975, against 12 of those 22 posts, twelve promoted officers shown at Serial Nos. 24 to 35 were confirmed with effect from 1-4-1966. Against the next 3 of those 22 posts, respondents 3, 4 and 5 were confirmed with effect from 31-5-68, 27-5-68 and 1-6-68. Against the remaining seven promoted officers including the appellant, were confirmed with effect from January 1, 1969. The first proviso to Rule 8 of 1953 Rules which provided for a quota of 25% for direct recruitment and 75% for promotion, was specifically declared void by this Court in Chandra Mohans case decided in 1966. That void Rule, being non-existent, was not available for the purposes of confirmation etc.22. After considering the entire material on record and hearing the Counsel for the parties, including Shri Dikshit appearing for the State, we are unable to appreciate, why the appellant like 12 other promoted officers, was not confirmed with effect from April 1, 1966, when he was continuously working as officiating Civil and Sessions Judge from July, 1960.23. In the case of promoted officers, the main criteria to be considered for their confirmation are :(i) Availability of a substantive vacancy/post.(ii) Suitability for the post.24. Here, in the case of the appellant, a substantive post was available to him with effect from April 1, 1966, when respondents 3, 4 and 5 had not even been appointed, on probation or otherwise, to the service. By that date, April 1, 1966, he had put in service as officiating Civil and Sessions Judge for a period of 5 years and 9 months approximately. There is nothing on record to suggest that by or on April 1, 1966, he was not found suitable for confirmation. Why was he, then, not accorded the same treatment in the matter of fixing the date of his confirmation as had been meted out to twelve promoted officers who were confirmed with effect from April 1, 1966. Shri Dikshit has not been able to satisfy us that in not allocating 1-4-66 to the appellant as the date of his confirmation, the Government were acting according to any intelligible differentia or reasonable principle. Nor is any a principle justifying a differential treatment to the appellant in the matter of fixing the date of his confirmation, discernible from the impugned Notification dated March 19, 1975, itself.25. We are therefore, of opinion that this Government Notification dated March 19, 1975 cannot, as it stands, be sustained and needs reconsideration.26. The same comments apply mutatis mutandis to the impugned Notification, dated July 22, 1977, issued by the High Court. Moreover, once it is found that the Notification dated March 19, 1975 cannot be sustained, the foundation for fixing dates of confirmation and determining relative seniority of District and Sessions Judges will also crumble.
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The Director of Treasuries in Karnataka & Anr Vs. V. Somyashree | (iii) the appointment to any public post in the service of the State has to be made on the basis of the principle in accordance with Articles 14 and 16 of the Constitution of India; (iv) appointment on compassionate ground can be made only on fulfilling the norms laid down by the States policy and/or satisfaction of the eligibility criteria as per the policy; (v) the norms prevailing on the date of the consideration of the application should be the basis for consideration of claim for compassionate appointment. 8. Applying the law laid down by this Court in the aforesaid decision to the facts of the case on hand, we are of the opinion that as such the High Court has gone beyond Rule 2 and Rule 3 of the Rules, 1996 by directing the appellants to consider the application of the respondent herein for appointment on compassionate ground as divorced daughter. Rule 2 and Rule 3 of the Rules, 1996 read as under: 2. Definitions:- (1) In these rules, unless the context otherwise requires:- (a) Dependent of a deceased Government servant means- (i) in the case of deceased male Government servant, his widow, son, (unmarried daughter and widowed daughter) who were dependent upon him; and were living with him; and (ii) in the case of a deceased female Government servant, her widower, son, (unmarried daughter and widowed daughter) who were dependent upon her and were living with her; (iii) family in relation to a deceased Government servant means his or her spouse and their son, (unmarried daughter and widowed daughter) who were living with him. (2) Words and expressions used but not defined shall have the same meaning assigned to them in the Karnataka Civil Services (General Recruitment) Rules, 1977. 6. The eligibility on the death of a female employee is in terms of Rule 3(2)(ii) of the Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996, which reads as follows: Rule 3(2)(ii):- (ii) in the case of the deceased female Government servant; (a) a son; (b) an unmarried daughter, if the son is not eligible or for any valid reason he is not willing to accept the appointment; (c) the widower, if the son and daughter are not eligible or for any valid reason they are not willing to accept the appointment. (d) a widowed daughter, if the widower, son and unmarried daughter are not eligible or for any valid reason they are not willing to accept the appointment. 3. xxx 4 xxx 8.1 From the aforesaid rules it can be seen that only unmarried daughter and widowed daughter who were dependent upon the deceased female Government servant at the time of her death and living with her can be said to be dependent of a deceased Government servant and that an unmarried daughter and widowed daughter only can be said to be eligible for appointment on compassionate ground in the case of death of the female Government servant. Rule 2 and Rule 3 reproduced hereinabove do not include divorced daughter as eligible for appointment on compassionate ground and even as dependent. As observed hereinabove and even as held by this Court in the case of N.C. Santhosh (Supra), the norms prevailing on the date of consideration of the application should be the basis of consideration of claim for compassionate appointment. The word divorced daughter has been added subsequently by Amendment, 2021. Therefore, at the relevant time when the deceased employee died and when the original writ petitioner – respondent herein made an application for appointment on compassionate ground the divorced daughter were not eligible for appointment on compassionate ground and the divorced daughter was not within the definition of dependent. 8.2 Apart from the above one additional aspect needs to be noticed, which the High Court has failed to consider. It is to be noted that the deceased employee died on 25.03.2012. The respondent herein – original writ petitioner at that time was a married daughter. Her marriage was subsisting on the date of the death of the deceased i.e. on 25.03.2012. Immediately on the death of the deceased employee, the respondent initiated the divorced proceedings under Section 13B of the Hindu Marriage Act, 1955 on 12.09.2012 for decree of divorce by mutual consent. By Judgment dated 20.03.2013, the Learned Principal Civil Judge, Mandya granted the decree of divorce by mutual consent. That immediately on the very next day i.e. on 21.03.2013, the respondent herein on the basis of the decree of divorce by mutual consent applied for appointment on compassionate ground. The aforesaid chronology of dates and events would suggest that only for the purpose of getting appointment on compassionate ground the decree of divorce by mutual consent has been obtained. Otherwise, as a married daughter she was not entitled to the appointment on compassionate ground. Therefore, looking to the aforesaid facts and circumstances of the case, otherwise also the High Court ought not to have directed the appellants to consider the application of the respondent herein for appointment on compassionate ground as divorced daughter. This is one additional ground to reject the application of the respondent for appointment on compassionate ground. 8.3 Even otherwise, it is required to be noted that at the time when the deceased employee died on 25.03.2012 the marriage between the respondent and her husband was subsisting. Therefore, at the time when the deceased employee died she was a married daughter and therefore, also cannot be said to be dependent as defined under Rule 2 of the Rules 1996. Therefore, even if it is assumed that the divorced daughter may fall in the same class of unmarried daughter and widowed daughter in that case also the date on which the deceased employee died she – respondent herein was not the divorced daughter as she obtained the divorce by mutual consent subsequent to the death of the deceased employee. Therefore, also the respondent shall not be eligible for the appointment on compassionate ground on the death of her mother and deceased employee. | 1[ds]7. While considering the submissions made on behalf of the rival parties a recent decision of this Court in the case of N.C. Santhosh (Supra) on the appointment on compassionate ground is required to be referred to. After considering catena of decisions of this Court on appointment on compassionate grounds it is observed and held that appointment to any public post in the service of the State has to be made on the basis of principles in accordance with Articles 14 and 16 of the Constitution of India and the compassionate appointment is an exception to the general rule. It is further observed that the dependent of the deceased Government employee are made eligible by virtue of the policy on compassionate appointment and they must fulfill the norms laid down by the States policy. It is further observed and held that the norms prevailing on the date of the consideration of the application should be the basis for consideration of claim of compassionate appointment. A dependent of a government employee, in the absence of any vested right accruing on the death of the government employee, can only demand consideration of his/her application. It is further observed he/she is, however, entitled to seek consideration in accordance with the norms as applicable on the day of death of the Government employee. The law laid down by this Court in the aforesaid decision on grant of appointment on compassionate ground can be summarized as under:(i) that the compassionate appointment is an exception to the general rule;(ii) that no aspirant has a right to compassionate appointment;(iii) the appointment to any public post in the service of the State has to be made on the basis of the principle in accordance with Articles 14 and 16 of the Constitution of India;(iv) appointment on compassionate ground can be made only on fulfilling the norms laid down by the States policy and/or satisfaction of the eligibility criteria as per the policy;(v) the norms prevailing on the date of the consideration of the application should be the basis for consideration of claim for compassionate appointment.8. Applying the law laid down by this Court in the aforesaid decision to the facts of the case on hand, we are of the opinion that as such the High Court has gone beyond Rule 2 and Rule 3 of the Rules, 1996 by directing the appellants to consider the application of the respondent herein for appointment on compassionate ground as divorced daughter.8.1 From the aforesaid rules it can be seen that only unmarried daughter and widowed daughter who were dependent upon the deceased female Government servant at the time of her death and living with her can be said to be dependent of a deceased Government servant and that an unmarried daughter and widowed daughter only can be said to be eligible for appointment on compassionate ground in the case of death of the female Government servant. Rule 2 and Rule 3 reproduced hereinabove do not include divorced daughter as eligible for appointment on compassionate ground and even as dependent. As observed hereinabove and even as held by this Court in the case of N.C. Santhosh (Supra), the norms prevailing on the date of consideration of the application should be the basis of consideration of claim for compassionate appointment. The word divorced daughter has been added subsequently by Amendment, 2021. Therefore, at the relevant time when the deceased employee died and when the original writ petitioner – respondent herein made an application for appointment on compassionate ground the divorced daughter were not eligible for appointment on compassionate ground and the divorced daughter was not within the definition of dependent.8.2 Apart from the above one additional aspect needs to be noticed, which the High Court has failed to consider. It is to be noted that the deceased employee died on 25.03.2012. The respondent herein – original writ petitioner at that time was a married daughter. Her marriage was subsisting on the date of the death of the deceased i.e. on 25.03.2012. Immediately on the death of the deceased employee, the respondent initiated the divorced proceedings under Section 13B of the Hindu Marriage Act, 1955 on 12.09.2012 for decree of divorce by mutual consent. By Judgment dated 20.03.2013, the Learned Principal Civil Judge, Mandya granted the decree of divorce by mutual consent. That immediately on the very next day i.e. on 21.03.2013, the respondent herein on the basis of the decree of divorce by mutual consent applied for appointment on compassionate ground. The aforesaid chronology of dates and events would suggest that only for the purpose of getting appointment on compassionate ground the decree of divorce by mutual consent has been obtained. Otherwise, as a married daughter she was not entitled to the appointment on compassionate ground. Therefore, looking to the aforesaid facts and circumstances of the case, otherwise also the High Court ought not to have directed the appellants to consider the application of the respondent herein for appointment on compassionate ground as divorced daughter. This is one additional ground to reject the application of the respondent for appointment on compassionate ground.8.3 Even otherwise, it is required to be noted that at the time when the deceased employee died on 25.03.2012 the marriage between the respondent and her husband was subsisting. Therefore, at the time when the deceased employee died she was a married daughter and therefore, also cannot be said to be dependent as defined under Rule 2 of the Rules 1996. Therefore, even if it is assumed that the divorced daughter may fall in the same class of unmarried daughter and widowed daughter in that case also the date on which the deceased employee died she – respondent herein was not the divorced daughter as she obtained the divorce by mutual consent subsequent to the death of the deceased employee. Therefore, also the respondent shall not be eligible for the appointment on compassionate ground on the death of her mother and deceased employee. | 1 | 2,803 | 1,072 | ### 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:
(iii) the appointment to any public post in the service of the State has to be made on the basis of the principle in accordance with Articles 14 and 16 of the Constitution of India; (iv) appointment on compassionate ground can be made only on fulfilling the norms laid down by the States policy and/or satisfaction of the eligibility criteria as per the policy; (v) the norms prevailing on the date of the consideration of the application should be the basis for consideration of claim for compassionate appointment. 8. Applying the law laid down by this Court in the aforesaid decision to the facts of the case on hand, we are of the opinion that as such the High Court has gone beyond Rule 2 and Rule 3 of the Rules, 1996 by directing the appellants to consider the application of the respondent herein for appointment on compassionate ground as divorced daughter. Rule 2 and Rule 3 of the Rules, 1996 read as under: 2. Definitions:- (1) In these rules, unless the context otherwise requires:- (a) Dependent of a deceased Government servant means- (i) in the case of deceased male Government servant, his widow, son, (unmarried daughter and widowed daughter) who were dependent upon him; and were living with him; and (ii) in the case of a deceased female Government servant, her widower, son, (unmarried daughter and widowed daughter) who were dependent upon her and were living with her; (iii) family in relation to a deceased Government servant means his or her spouse and their son, (unmarried daughter and widowed daughter) who were living with him. (2) Words and expressions used but not defined shall have the same meaning assigned to them in the Karnataka Civil Services (General Recruitment) Rules, 1977. 6. The eligibility on the death of a female employee is in terms of Rule 3(2)(ii) of the Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996, which reads as follows: Rule 3(2)(ii):- (ii) in the case of the deceased female Government servant; (a) a son; (b) an unmarried daughter, if the son is not eligible or for any valid reason he is not willing to accept the appointment; (c) the widower, if the son and daughter are not eligible or for any valid reason they are not willing to accept the appointment. (d) a widowed daughter, if the widower, son and unmarried daughter are not eligible or for any valid reason they are not willing to accept the appointment. 3. xxx 4 xxx 8.1 From the aforesaid rules it can be seen that only unmarried daughter and widowed daughter who were dependent upon the deceased female Government servant at the time of her death and living with her can be said to be dependent of a deceased Government servant and that an unmarried daughter and widowed daughter only can be said to be eligible for appointment on compassionate ground in the case of death of the female Government servant. Rule 2 and Rule 3 reproduced hereinabove do not include divorced daughter as eligible for appointment on compassionate ground and even as dependent. As observed hereinabove and even as held by this Court in the case of N.C. Santhosh (Supra), the norms prevailing on the date of consideration of the application should be the basis of consideration of claim for compassionate appointment. The word divorced daughter has been added subsequently by Amendment, 2021. Therefore, at the relevant time when the deceased employee died and when the original writ petitioner – respondent herein made an application for appointment on compassionate ground the divorced daughter were not eligible for appointment on compassionate ground and the divorced daughter was not within the definition of dependent. 8.2 Apart from the above one additional aspect needs to be noticed, which the High Court has failed to consider. It is to be noted that the deceased employee died on 25.03.2012. The respondent herein – original writ petitioner at that time was a married daughter. Her marriage was subsisting on the date of the death of the deceased i.e. on 25.03.2012. Immediately on the death of the deceased employee, the respondent initiated the divorced proceedings under Section 13B of the Hindu Marriage Act, 1955 on 12.09.2012 for decree of divorce by mutual consent. By Judgment dated 20.03.2013, the Learned Principal Civil Judge, Mandya granted the decree of divorce by mutual consent. That immediately on the very next day i.e. on 21.03.2013, the respondent herein on the basis of the decree of divorce by mutual consent applied for appointment on compassionate ground. The aforesaid chronology of dates and events would suggest that only for the purpose of getting appointment on compassionate ground the decree of divorce by mutual consent has been obtained. Otherwise, as a married daughter she was not entitled to the appointment on compassionate ground. Therefore, looking to the aforesaid facts and circumstances of the case, otherwise also the High Court ought not to have directed the appellants to consider the application of the respondent herein for appointment on compassionate ground as divorced daughter. This is one additional ground to reject the application of the respondent for appointment on compassionate ground. 8.3 Even otherwise, it is required to be noted that at the time when the deceased employee died on 25.03.2012 the marriage between the respondent and her husband was subsisting. Therefore, at the time when the deceased employee died she was a married daughter and therefore, also cannot be said to be dependent as defined under Rule 2 of the Rules 1996. Therefore, even if it is assumed that the divorced daughter may fall in the same class of unmarried daughter and widowed daughter in that case also the date on which the deceased employee died she – respondent herein was not the divorced daughter as she obtained the divorce by mutual consent subsequent to the death of the deceased employee. Therefore, also the respondent shall not be eligible for the appointment on compassionate ground on the death of her mother and deceased employee.
### Response:
1
### Explanation:
7. While considering the submissions made on behalf of the rival parties a recent decision of this Court in the case of N.C. Santhosh (Supra) on the appointment on compassionate ground is required to be referred to. After considering catena of decisions of this Court on appointment on compassionate grounds it is observed and held that appointment to any public post in the service of the State has to be made on the basis of principles in accordance with Articles 14 and 16 of the Constitution of India and the compassionate appointment is an exception to the general rule. It is further observed that the dependent of the deceased Government employee are made eligible by virtue of the policy on compassionate appointment and they must fulfill the norms laid down by the States policy. It is further observed and held that the norms prevailing on the date of the consideration of the application should be the basis for consideration of claim of compassionate appointment. A dependent of a government employee, in the absence of any vested right accruing on the death of the government employee, can only demand consideration of his/her application. It is further observed he/she is, however, entitled to seek consideration in accordance with the norms as applicable on the day of death of the Government employee. The law laid down by this Court in the aforesaid decision on grant of appointment on compassionate ground can be summarized as under:(i) that the compassionate appointment is an exception to the general rule;(ii) that no aspirant has a right to compassionate appointment;(iii) the appointment to any public post in the service of the State has to be made on the basis of the principle in accordance with Articles 14 and 16 of the Constitution of India;(iv) appointment on compassionate ground can be made only on fulfilling the norms laid down by the States policy and/or satisfaction of the eligibility criteria as per the policy;(v) the norms prevailing on the date of the consideration of the application should be the basis for consideration of claim for compassionate appointment.8. Applying the law laid down by this Court in the aforesaid decision to the facts of the case on hand, we are of the opinion that as such the High Court has gone beyond Rule 2 and Rule 3 of the Rules, 1996 by directing the appellants to consider the application of the respondent herein for appointment on compassionate ground as divorced daughter.8.1 From the aforesaid rules it can be seen that only unmarried daughter and widowed daughter who were dependent upon the deceased female Government servant at the time of her death and living with her can be said to be dependent of a deceased Government servant and that an unmarried daughter and widowed daughter only can be said to be eligible for appointment on compassionate ground in the case of death of the female Government servant. Rule 2 and Rule 3 reproduced hereinabove do not include divorced daughter as eligible for appointment on compassionate ground and even as dependent. As observed hereinabove and even as held by this Court in the case of N.C. Santhosh (Supra), the norms prevailing on the date of consideration of the application should be the basis of consideration of claim for compassionate appointment. The word divorced daughter has been added subsequently by Amendment, 2021. Therefore, at the relevant time when the deceased employee died and when the original writ petitioner – respondent herein made an application for appointment on compassionate ground the divorced daughter were not eligible for appointment on compassionate ground and the divorced daughter was not within the definition of dependent.8.2 Apart from the above one additional aspect needs to be noticed, which the High Court has failed to consider. It is to be noted that the deceased employee died on 25.03.2012. The respondent herein – original writ petitioner at that time was a married daughter. Her marriage was subsisting on the date of the death of the deceased i.e. on 25.03.2012. Immediately on the death of the deceased employee, the respondent initiated the divorced proceedings under Section 13B of the Hindu Marriage Act, 1955 on 12.09.2012 for decree of divorce by mutual consent. By Judgment dated 20.03.2013, the Learned Principal Civil Judge, Mandya granted the decree of divorce by mutual consent. That immediately on the very next day i.e. on 21.03.2013, the respondent herein on the basis of the decree of divorce by mutual consent applied for appointment on compassionate ground. The aforesaid chronology of dates and events would suggest that only for the purpose of getting appointment on compassionate ground the decree of divorce by mutual consent has been obtained. Otherwise, as a married daughter she was not entitled to the appointment on compassionate ground. Therefore, looking to the aforesaid facts and circumstances of the case, otherwise also the High Court ought not to have directed the appellants to consider the application of the respondent herein for appointment on compassionate ground as divorced daughter. This is one additional ground to reject the application of the respondent for appointment on compassionate ground.8.3 Even otherwise, it is required to be noted that at the time when the deceased employee died on 25.03.2012 the marriage between the respondent and her husband was subsisting. Therefore, at the time when the deceased employee died she was a married daughter and therefore, also cannot be said to be dependent as defined under Rule 2 of the Rules 1996. Therefore, even if it is assumed that the divorced daughter may fall in the same class of unmarried daughter and widowed daughter in that case also the date on which the deceased employee died she – respondent herein was not the divorced daughter as she obtained the divorce by mutual consent subsequent to the death of the deceased employee. Therefore, also the respondent shall not be eligible for the appointment on compassionate ground on the death of her mother and deceased employee.
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State of Madhya Pradesh and Another Vs. Kumari Nivedita Jain and Others | the Council, the Central Government will forward the same to the Government of the State in which the University or medical institution is situated, the State Government shall forward it along with such remarks as it may m ake to the University or Medical Institution, with an intimation of the period within which, the University or medical institution may submit its explanation to the State Government;, on receipt of the explanation, if any within the s tipulated period the State Government on the expiry of the period shall make its recommendations to the Central Government, the Central Government after making such further enquiries, if any, as it may think fit, proceed to act in the manne r laid down in sub-sec. (4) of S. 19 of the Act. S. 19A of the Act which is important for our purposes in this appeal reads as follows:, Provided that a candidate who has appeared in a qualifying examination the result of which has not been a declared, may be provisionally allowed to take up the competitive examination, i n case of his selection for admission to a medical college, he shall not be admitted thereto unless in the meanwhile he has passed the qualifying examination. 15. It cannot be disputed that the State must do everything possibleof the Scheduled Castes, Scheduled Tribes, other backward communities, the State is entitled to make reservations for them in the matter of admission to medical, other technical institutions. In the absence of any law to the contrary, it must also be open to the Government to impose such conditions as would make the reservation effective, would benefit the candidates belonging to these categories for whose benefit, welfare the reservations have been made. In any particular situation, taking into consideration the realities, circumstances prevailing in the State it will be open to the State to vary, modify the conditions regarding selection f or admission, if such modification or variation becomes necessary for achieving the purpose for which reservation has been made, if there be no law to the contrary. Note (ii) of rule 20 of the Rules for admission framed by the State Government specifically empower the Government to grant such relaxation in the minimum qualifying marks to the extent considered necessary.In the State of Kerala, Anr. v. N.M. Thomas (1) this Court by a majority had held that relaxation of the Rules whic h required a lower division clerk to pass a departmental test within a period of two years in the interest of the employees belonging to Scheduled Castes, Scheduled Tribes was not unconstitutional or illegal. 16. The relaxation made by the State Government in the rule regarding selection of candidates belonging to Scheduled Castes, Scheduled Tribes for admission into medical colleges cannot be said to be unreasonable, the said relaxation constitutes no violation of Art. 15 (l), (2) of the Constitution. The said relaxation also does not offend Art. 14 of the Constitution. 17. It has to be noticed that there is no relaxation of the condition regarding eligibility for admission into medical colleges. The relaxation is only in the rule regarding selection of candidates belonging to Scheduled Castes, Scheduled Tribes categories who were otherwise qualified, eligible to seek admission into medical colleges only in relation to seats reserved for them. The respondent Nivedita Jain, other deserving candidates may feel that because of the reservations they are being deprived of the opportunity of getting their admission into medical colleges. 18. It is however, to be noted that the validity of the reservations of seats for candidates belonging to Scheduled Castes, Scheduled Tribes categories has not been challenged in the writ petition, very properly as in view of Art. IS (4) of the Constitution. In the case of Jagdish Saran, Ors. v. Union of India, Ors. (l) relied on by Mr. Phadke, this Court has held that the Indian Constitution is wedded to equal protection, non-discrimination, Arts.14, 15, 16 are inviolable, Art. 2 9 (2) strikes a similar note though it does not refer to A regional restrictions or reservations; Art. IS further saves States power to make special provisions for women, children or for advancement of socially, educationally backward classes, reservations under Art. IS (4) exist, are applied.This Court further held at p. 855 as under:-, The only other ground that was urged in support of the case of the writ petitioners that the order in question is illegal, invalid, is that the order violat es ordiance 54 of the University of Jabalpur. No such ground has been taken in the writ petition. 19. Though the High Court has considered this argument, the High Court does not appear to have come to any definite finding on this question. This question, in the instant case, cannot be said to be a question of pure law. In the affidavit which has been filed on behalf of the University, it has been stated that the ordinance 54 has not been adhered to. 20. In the absence of any plea being taken in the writ petition, we are of the opinion that the respondent is not entitled to urge this point, rely on any alleged contravention of ordinance 54 of Jabalpur University. 21. The Judgment and order passed by the High Court are hereby set aside and the writ petition is dismissed. There will, how ever, be no order as to costs. 22. Though this appeal succeeds, yet in our opinion, justice requires that the respondent Nivedita Jain who has already been admitted to the Medical College on the basis of interim order passed by the Court and ha s been prosecuting her studies should be allowed to continue her studies and to continue to be student of the Medical College where she is already studying. She is otherwise a qualified candidate and eligible for admission into the medical course which she is now undergoing and the cause of justice does not require that her studies should be interrupted and her career should not be put in jeopardy. | 1[ds]It seems to us prima facie that those provisions do not authorise the Council to do so. But we refrain from expressing any final opinion in the matter as the Council is not a party before usAs we have earlier noticed, the order in question has been struck down by the High Court essentially on the ground that the order which is an executive order violates Regulation II of the Council which has the force of a Statute. It is not in dispute, it cannot be disputed that the order m question is in conflict with the provisions contained in Regulation II of the CouncilFor a proper appreciation of these rival contentions, it becomes necessary to analyze, understand the scheme of the Act, the Regulations framed thereunder. The Act was enacted "to provide for reconstitution of the Medical Council of India, the maintenance of Medical Register for India, for matters connected therewith". S. 2 deals with definitions, defines "Regulation" in subsec. (i) to mean "a Regulation under s. 33". Ss. 3 to 10 of the Act are not of any material consequence, these sections deal with composition of the Council, its functions. S. 11, 12, 13, 14 which deal with the question of recognition of medical qualifications by the Council are also not very relevant for our present purpose. S. 15 which deals with question of a person possessing qualifications for enrollment on any State Medical Register, is also not very material.S. 16 provides that every University or Medical Institution in India whic h grants a recognised medical qualification shall furnish such information as the Council may from time to time require, as to the courses of study, examination to be undergone in order to obtain such qualification, as to the ages at which courses of study, examination are required to be undergone, such qualification is conferred, generally as to the requisites for obtaining such qualifications granted by the University or Medical Institution. S. 17 confers a r ight of inspection of Medical Institution, College, Hospital or other institutions where medical education is given, also to attend any examination held by any University or Medical Institutionof recommending to the C entral Government recognition of medical qualifications granted by that University or medical institution14. S. 18 confers a further right of appointing visitors for inspection of any medical institution, College, Hospital or other institutions where medical education is given, for attending any examination held by any University or Medical Institutionof granting recognised medical qualifications. S. 19 empowers the committee to make a representation to the Central Government for withdrawal of the recognition, if it appears to the Council on a report by the Committee or the Visitor that the Courses of study, examination to be undergone in, or the proficiency required from candidates at any examination held by any University or medical institution do not conform to the standards prescribed by the Council or that the staff, equipment, accommodation, training, other facilities for instructions, training provided in such University or Medical Institution or in any College or other institution affiliated to that University do not conform to the standards prescribed by the Council.The said Section 19 further provides that in the event of any representation being made to the Cen tral Government by the Council, the Central Government will forward the same to the Government of the State in which the University or medical institution is situated, the State Government shall forward it along with such remarks as it may m ake to the University or Medical Institution, with an intimation of the period within which, the University or medical institution may submit its explanation to the State Government;, on receipt of the explanation, if any within the s tipulated period the State Government on the expiry of the period shall make its recommendations to the Central Government, the Central Government after making such further enquiries, if any, as it may think fit, proceed to act in the manne r laid down in. (4) of S. 19 of the Act. S. 19A of the Act which is important for our purposes in this appeal reads as follows:, Provided that a candidate who has appeared in a qualifying examination the result of which has not been a declared, may be provisionally allowed to take up the competitive examination, i n case of his selection for admission to a medical college, he shall not be admitted thereto unless in the meanwhile he has passed the qualifying examination15. It cannot be disputed that the State must do everything possibleof the Scheduled Castes, Scheduled Tribes, other backward communities, the State is entitled to make reservations for them in the matter of admission to medical, other technical institutions. In the absence of any law to the contrary, it must also be open to the Government to impose such conditions as would make the reservation effective, would benefit the candidates belonging to these categories for whose benefit, welfare the reservations have been made. In any particular situation, taking into consideration the realities, circumstances prevailing in the State it will be open to the State to vary, modify the conditions regarding selection f or admission, if such modification or variation becomes necessary for achieving the purpose for which reservation has been made, if there be no law to the contrary. Note (ii) of rule 20 of the Rules for admission framed by the State Government specifically empower the Government to grant such relaxation in the minimum qualifying marks to the extent considered necessary.In the State of Kerala, Anr. v. N.M. Thomas (1) this Court by a majority had held that relaxation of the Rules whic h required a lower division clerk to pass a departmental test within a period of two years in the interest of the employees belonging to Scheduled Castes, Scheduled Tribes was not unconstitutional or illegal16. The relaxation made by the State Government in the rule regarding selection of candidates belonging to Scheduled Castes, Scheduled Tribes for admission into medical colleges cannot be said to be unreasonable, the said relaxation constitutes no violation of Art. 15 (l), (2) of the Constitution. The said relaxation also does not offend Art. 14 of the Constitution17. It has to be noticed that there is no relaxation of the condition regarding eligibility for admission into medical colleges. The relaxation is only in the rule regarding selection of candidates belonging to Scheduled Castes, Scheduled Tribes categories who were otherwise qualified, eligible to seek admission into medical colleges only in relation to seats reserved for them. The respondent Nivedita Jain, other deserving candidates may feel that because of the reservations they are being deprived of the opportunity of getting their admission into medical colleges18. It is however, to be noted that the validity of the reservations of seats for candidates belonging to Scheduled Castes, Scheduled Tribes categories has not been challenged in the writ petition, very properly as in view of Art. IS (4) of the Constitution. In the case of Jagdish Saran, Ors. v. Union of India, Ors. (l) relied on by Mr. Phadke, this Court has held that the Indian Constitution is wedded to equal protection,, Arts.14, 15, 16 are inviolable, Art. 2 9 (2) strikes a similar note though it does not refer to A regional restrictions or reservations; Art. IS further saves States power to make special provisions for women, children or for advancement of socially, educationally backward classes, reservations under Art. IS (4) exist, are applied.This Court further held at p. 855 as, The only other ground that was urged in support of the case of the writ petitioners that the order in question is illegal, invalid, is that the order violat es ordiance 54 of the University of Jabalpur. No such ground has been taken in the writ petition19. Though the High Court has considered this argument, the High Court does not appear to have come to any definite finding on this question. This question, in the instant case, cannot be said to be a question of pure law. In the affidavit which has been filed on behalf of the University, it has been stated that the ordinance 54 has not been adhered to20. In the absence of any plea being taken in the writ petition, we are of the opinion that the respondent is not entitled to urge this point, rely on any alleged contravention of ordinance 54 of Jabalpur University. | 1 | 4,091 | 1,567 | ### Instruction:
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the Council, the Central Government will forward the same to the Government of the State in which the University or medical institution is situated, the State Government shall forward it along with such remarks as it may m ake to the University or Medical Institution, with an intimation of the period within which, the University or medical institution may submit its explanation to the State Government;, on receipt of the explanation, if any within the s tipulated period the State Government on the expiry of the period shall make its recommendations to the Central Government, the Central Government after making such further enquiries, if any, as it may think fit, proceed to act in the manne r laid down in sub-sec. (4) of S. 19 of the Act. S. 19A of the Act which is important for our purposes in this appeal reads as follows:, Provided that a candidate who has appeared in a qualifying examination the result of which has not been a declared, may be provisionally allowed to take up the competitive examination, i n case of his selection for admission to a medical college, he shall not be admitted thereto unless in the meanwhile he has passed the qualifying examination. 15. It cannot be disputed that the State must do everything possibleof the Scheduled Castes, Scheduled Tribes, other backward communities, the State is entitled to make reservations for them in the matter of admission to medical, other technical institutions. In the absence of any law to the contrary, it must also be open to the Government to impose such conditions as would make the reservation effective, would benefit the candidates belonging to these categories for whose benefit, welfare the reservations have been made. In any particular situation, taking into consideration the realities, circumstances prevailing in the State it will be open to the State to vary, modify the conditions regarding selection f or admission, if such modification or variation becomes necessary for achieving the purpose for which reservation has been made, if there be no law to the contrary. Note (ii) of rule 20 of the Rules for admission framed by the State Government specifically empower the Government to grant such relaxation in the minimum qualifying marks to the extent considered necessary.In the State of Kerala, Anr. v. N.M. Thomas (1) this Court by a majority had held that relaxation of the Rules whic h required a lower division clerk to pass a departmental test within a period of two years in the interest of the employees belonging to Scheduled Castes, Scheduled Tribes was not unconstitutional or illegal. 16. The relaxation made by the State Government in the rule regarding selection of candidates belonging to Scheduled Castes, Scheduled Tribes for admission into medical colleges cannot be said to be unreasonable, the said relaxation constitutes no violation of Art. 15 (l), (2) of the Constitution. The said relaxation also does not offend Art. 14 of the Constitution. 17. It has to be noticed that there is no relaxation of the condition regarding eligibility for admission into medical colleges. The relaxation is only in the rule regarding selection of candidates belonging to Scheduled Castes, Scheduled Tribes categories who were otherwise qualified, eligible to seek admission into medical colleges only in relation to seats reserved for them. The respondent Nivedita Jain, other deserving candidates may feel that because of the reservations they are being deprived of the opportunity of getting their admission into medical colleges. 18. It is however, to be noted that the validity of the reservations of seats for candidates belonging to Scheduled Castes, Scheduled Tribes categories has not been challenged in the writ petition, very properly as in view of Art. IS (4) of the Constitution. In the case of Jagdish Saran, Ors. v. Union of India, Ors. (l) relied on by Mr. Phadke, this Court has held that the Indian Constitution is wedded to equal protection, non-discrimination, Arts.14, 15, 16 are inviolable, Art. 2 9 (2) strikes a similar note though it does not refer to A regional restrictions or reservations; Art. IS further saves States power to make special provisions for women, children or for advancement of socially, educationally backward classes, reservations under Art. IS (4) exist, are applied.This Court further held at p. 855 as under:-, The only other ground that was urged in support of the case of the writ petitioners that the order in question is illegal, invalid, is that the order violat es ordiance 54 of the University of Jabalpur. No such ground has been taken in the writ petition. 19. Though the High Court has considered this argument, the High Court does not appear to have come to any definite finding on this question. This question, in the instant case, cannot be said to be a question of pure law. In the affidavit which has been filed on behalf of the University, it has been stated that the ordinance 54 has not been adhered to. 20. In the absence of any plea being taken in the writ petition, we are of the opinion that the respondent is not entitled to urge this point, rely on any alleged contravention of ordinance 54 of Jabalpur University. 21. The Judgment and order passed by the High Court are hereby set aside and the writ petition is dismissed. There will, how ever, be no order as to costs. 22. Though this appeal succeeds, yet in our opinion, justice requires that the respondent Nivedita Jain who has already been admitted to the Medical College on the basis of interim order passed by the Court and ha s been prosecuting her studies should be allowed to continue her studies and to continue to be student of the Medical College where she is already studying. She is otherwise a qualified candidate and eligible for admission into the medical course which she is now undergoing and the cause of justice does not require that her studies should be interrupted and her career should not be put in jeopardy.
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given, for attending any examination held by any University or Medical Institutionof granting recognised medical qualifications. S. 19 empowers the committee to make a representation to the Central Government for withdrawal of the recognition, if it appears to the Council on a report by the Committee or the Visitor that the Courses of study, examination to be undergone in, or the proficiency required from candidates at any examination held by any University or medical institution do not conform to the standards prescribed by the Council or that the staff, equipment, accommodation, training, other facilities for instructions, training provided in such University or Medical Institution or in any College or other institution affiliated to that University do not conform to the standards prescribed by the Council.The said Section 19 further provides that in the event of any representation being made to the Cen tral Government by the Council, the Central Government will forward the same to the Government of the State in which the University or medical institution is situated, the State Government shall forward it along with such remarks as it may m ake to the University or Medical Institution, with an intimation of the period within which, the University or medical institution may submit its explanation to the State Government;, on receipt of the explanation, if any within the s tipulated period the State Government on the expiry of the period shall make its recommendations to the Central Government, the Central Government after making such further enquiries, if any, as it may think fit, proceed to act in the manne r laid down in. (4) of S. 19 of the Act. S. 19A of the Act which is important for our purposes in this appeal reads as follows:, Provided that a candidate who has appeared in a qualifying examination the result of which has not been a declared, may be provisionally allowed to take up the competitive examination, i n case of his selection for admission to a medical college, he shall not be admitted thereto unless in the meanwhile he has passed the qualifying examination15. It cannot be disputed that the State must do everything possibleof the Scheduled Castes, Scheduled Tribes, other backward communities, the State is entitled to make reservations for them in the matter of admission to medical, other technical institutions. In the absence of any law to the contrary, it must also be open to the Government to impose such conditions as would make the reservation effective, would benefit the candidates belonging to these categories for whose benefit, welfare the reservations have been made. In any particular situation, taking into consideration the realities, circumstances prevailing in the State it will be open to the State to vary, modify the conditions regarding selection f or admission, if such modification or variation becomes necessary for achieving the purpose for which reservation has been made, if there be no law to the contrary. Note (ii) of rule 20 of the Rules for admission framed by the State Government specifically empower the Government to grant such relaxation in the minimum qualifying marks to the extent considered necessary.In the State of Kerala, Anr. v. N.M. Thomas (1) this Court by a majority had held that relaxation of the Rules whic h required a lower division clerk to pass a departmental test within a period of two years in the interest of the employees belonging to Scheduled Castes, Scheduled Tribes was not unconstitutional or illegal16. The relaxation made by the State Government in the rule regarding selection of candidates belonging to Scheduled Castes, Scheduled Tribes for admission into medical colleges cannot be said to be unreasonable, the said relaxation constitutes no violation of Art. 15 (l), (2) of the Constitution. The said relaxation also does not offend Art. 14 of the Constitution17. It has to be noticed that there is no relaxation of the condition regarding eligibility for admission into medical colleges. The relaxation is only in the rule regarding selection of candidates belonging to Scheduled Castes, Scheduled Tribes categories who were otherwise qualified, eligible to seek admission into medical colleges only in relation to seats reserved for them. The respondent Nivedita Jain, other deserving candidates may feel that because of the reservations they are being deprived of the opportunity of getting their admission into medical colleges18. It is however, to be noted that the validity of the reservations of seats for candidates belonging to Scheduled Castes, Scheduled Tribes categories has not been challenged in the writ petition, very properly as in view of Art. IS (4) of the Constitution. In the case of Jagdish Saran, Ors. v. Union of India, Ors. (l) relied on by Mr. Phadke, this Court has held that the Indian Constitution is wedded to equal protection,, Arts.14, 15, 16 are inviolable, Art. 2 9 (2) strikes a similar note though it does not refer to A regional restrictions or reservations; Art. IS further saves States power to make special provisions for women, children or for advancement of socially, educationally backward classes, reservations under Art. IS (4) exist, are applied.This Court further held at p. 855 as, The only other ground that was urged in support of the case of the writ petitioners that the order in question is illegal, invalid, is that the order violat es ordiance 54 of the University of Jabalpur. No such ground has been taken in the writ petition19. Though the High Court has considered this argument, the High Court does not appear to have come to any definite finding on this question. This question, in the instant case, cannot be said to be a question of pure law. In the affidavit which has been filed on behalf of the University, it has been stated that the ordinance 54 has not been adhered to20. In the absence of any plea being taken in the writ petition, we are of the opinion that the respondent is not entitled to urge this point, rely on any alleged contravention of ordinance 54 of Jabalpur University.
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VARADARAJAN Vs. KANAKAVALLI AND ORS | be expected that when the question regarding the will was gone into in a detailed enquiry, where the evidence was recorded not only of the appellant, but also of the attesting witness of the will and where these witnesses were thoroughly cross- examined and where the defendant also examined himself and tried to prove that the will was a false document and it was held that he had utterly failed in proving that the document was false, particularly because the document was fully proved by the appellant and his attesting witness, it would be futile to expect the witness to lead that evidence again in the main suit. xx xx xx 25. Dr. Kailash Chand, learned counsel appearing for the respondent, also relied on ruling in Vijayalakshmi Jayaram v. M.R. Parasuram [AIR 1995 AP 351 ] . It is correctly held by the Andhra Pradesh High Court that Order 22 Rule 5 is only for the purpose of bringing legal representatives on record for conducting of proceedings in which they are to be brought on record and it does not operate as res judicata. However, the High Court further correctly reiterated the legal position that the inter se dispute between the rival legal representatives has to be independently tried and decided in separate proceedings. Here, there was no question of any rivalry between the legal representatives or anybody claiming any rival title against the appellant-plaintiff. Therefore, there was no question of the appellant-plaintiff proving the will all over again in the same suit. 26. The other judgment relied upon is the Full Bench judgment of the Punjab and Haryana High Court in Mohinder Kaur v. Piara Singh [AIR 1931 P&H 130] . The same view was reiterated. As we have already pointed out, there is no question of finding fault with the view expressed. However, in the peculiar facts and circumstances of this case, there will be no question of non-suiting the appellant-plaintiff, particularly because in the same suit, there would be no question of repeating the evidence, particularly when he had asserted that he had become owner on the basis of the will (Ext. P-1). 12. In another judgment reported as Jaladi Suguna (Deceased) through LRs. v. Satya Sai Central Trust & Ors. (2008) 8 SCC 521 , this Court held that the determination as to who is the legal representative under Order XXII Rule 5 of the Code is for the limited purpose of representation of the estate of the deceased and for adjudication of that case. This Court held as under: 15. Filing an application to bring the legal representatives on record, does not amount to bringing the legal representatives on record. When an LR application is filed, the court should consider it and decide whether the persons named therein as the legal representatives, should be brought on record to represent the estate of the deceased. Until such decision by the court, the persons claiming to be the legal representatives have no right to represent the estate of the deceased, nor prosecute or defend the case. If there is a dispute as to who is the legal representative, a decision should be rendered on such dispute. Only when the question of legal representative is determined by the court and such legal representative is brought on record, can it be said that the estate of the deceased is represented. The determination as to who is the legal representative under Order 22 Rule 5 will of course be for the limited purpose of representation of the estate of the deceased, for adjudication of that case. Such determination for such limited purpose will not confer on the person held to be the legal representative, any right to the property which is the subject-matter of the suit, vis-à-vis other rival claimants to the estate of the deceased. (emphasis supplied) 13. In another judgment reported as Suresh Kumar Bansal v. Krishna Bansal & Anr. (2010) 2 SCC 162 , this Court held as under: 20. It is now well settled that determination of the question as to who is the legal representative of the deceased plaintiff or defendant under Order 22 Rule 5 of the Code of Civil Procedure is only for the purpose of bringing legal representatives on record for the conducting of those legal proceedings only and does not operate as res judicata and the inter se dispute between the rival legal representatives has to be independently tried and decided in probate proceedings. If this is allowed to be carried on for a decision of an eviction suit or other allied suits, the suits would be delayed, by which only the tenants will be benefited. 14. In view of the aforesaid judgments, we find that the appellant is the sole claimant to the estate of the deceased on the basis of Will. The Executing Court has found that the appellant is the legal representative of the deceased competent to execute the decree. In view of the said fact, the appellant as the legal representative is entitled to execute the decree and to take it to its logical end. 15. In addition to the nature of proceedings to implead the legal representative to execute the decree, we find that none of the tests laid down in Section 115 of the Code were satisfied by the High Court so as to set aside the order passed by the Executing Court. The High Court in exercise of revision jurisdiction has interfered with the order passed by the Executing Court as if it was acting as the first court of appeal. An order passed by a subordinate court can be interfered with only if it exercises its jurisdiction, not vested in it by law or has failed to exercise its jurisdiction so vested or has acted in exercise of jurisdiction illegally or with material irregularity. The mere fact that the High Court had a different view on the same facts would not confer jurisdiction to interfere with an order passed by the Executing Court. | 1[ds]7. We find that the order of the High Court is not sustainable in law. The appellant claims to be the legal representative of Umadevi on the basis of the Will executed by her. He has produced an attesting witness and the scribe of the Will. The witnesses have deposed the execution of the Will by Umadevi in favour of the appellant who is the son of her sister. No one else has come forward to seek execution of decree as the legal representative of the deceased decree holder. It is Umadevi who has filed the execution petition but after her death, the appellant has filed an application to continue with the execution. In the absence of any rival claimant claiming to be the legal representative of the deceased decree holder, the High Court was not justified in setting aside the order of the Executing Court, when in terms of Order XXII Rule 5 of the Code, the jurisdiction to determine who is a legal heir is summary in nature8. We may state that Order XXII of the Code is applicable to the pending proceedings in a suit. But the conflicting claims of legal representatives can be decided in execution proceedings in view of the principles of Rule 5 of Order XXII14. In view of the aforesaid judgments, we find that the appellant is the sole claimant to the estate of the deceased on the basis of Will. The Executing Court has found that the appellant is the legal representative of the deceased competent to execute the decree. In view of the said fact, the appellant as the legal representative is entitled to execute the decree and to take it to its logical end15. In addition to the nature of proceedings to implead the legal representative to execute the decree, we find that none of the tests laid down in Section 115 of the Code were satisfied by the High Court so as to set aside the order passed by the Executing Court. The High Court in exercise of revision jurisdiction has interfered with the order passed by the Executing Court as if it was acting as the first court of appeal. An order passed by a subordinate court can be interfered with only if it exercises its jurisdiction, not vested in it by law or has failed to exercise its jurisdiction so vested or hasacted in exercise of jurisdiction illegally or with material irregularity. The mere fact that the High Court had a different view on the same facts would not confer jurisdiction to interfere with an order passed by the Executing Court. | 1 | 3,728 | 463 | ### Instruction:
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be expected that when the question regarding the will was gone into in a detailed enquiry, where the evidence was recorded not only of the appellant, but also of the attesting witness of the will and where these witnesses were thoroughly cross- examined and where the defendant also examined himself and tried to prove that the will was a false document and it was held that he had utterly failed in proving that the document was false, particularly because the document was fully proved by the appellant and his attesting witness, it would be futile to expect the witness to lead that evidence again in the main suit. xx xx xx 25. Dr. Kailash Chand, learned counsel appearing for the respondent, also relied on ruling in Vijayalakshmi Jayaram v. M.R. Parasuram [AIR 1995 AP 351 ] . It is correctly held by the Andhra Pradesh High Court that Order 22 Rule 5 is only for the purpose of bringing legal representatives on record for conducting of proceedings in which they are to be brought on record and it does not operate as res judicata. However, the High Court further correctly reiterated the legal position that the inter se dispute between the rival legal representatives has to be independently tried and decided in separate proceedings. Here, there was no question of any rivalry between the legal representatives or anybody claiming any rival title against the appellant-plaintiff. Therefore, there was no question of the appellant-plaintiff proving the will all over again in the same suit. 26. The other judgment relied upon is the Full Bench judgment of the Punjab and Haryana High Court in Mohinder Kaur v. Piara Singh [AIR 1931 P&H 130] . The same view was reiterated. As we have already pointed out, there is no question of finding fault with the view expressed. However, in the peculiar facts and circumstances of this case, there will be no question of non-suiting the appellant-plaintiff, particularly because in the same suit, there would be no question of repeating the evidence, particularly when he had asserted that he had become owner on the basis of the will (Ext. P-1). 12. In another judgment reported as Jaladi Suguna (Deceased) through LRs. v. Satya Sai Central Trust & Ors. (2008) 8 SCC 521 , this Court held that the determination as to who is the legal representative under Order XXII Rule 5 of the Code is for the limited purpose of representation of the estate of the deceased and for adjudication of that case. This Court held as under: 15. Filing an application to bring the legal representatives on record, does not amount to bringing the legal representatives on record. When an LR application is filed, the court should consider it and decide whether the persons named therein as the legal representatives, should be brought on record to represent the estate of the deceased. Until such decision by the court, the persons claiming to be the legal representatives have no right to represent the estate of the deceased, nor prosecute or defend the case. If there is a dispute as to who is the legal representative, a decision should be rendered on such dispute. Only when the question of legal representative is determined by the court and such legal representative is brought on record, can it be said that the estate of the deceased is represented. The determination as to who is the legal representative under Order 22 Rule 5 will of course be for the limited purpose of representation of the estate of the deceased, for adjudication of that case. Such determination for such limited purpose will not confer on the person held to be the legal representative, any right to the property which is the subject-matter of the suit, vis-à-vis other rival claimants to the estate of the deceased. (emphasis supplied) 13. In another judgment reported as Suresh Kumar Bansal v. Krishna Bansal & Anr. (2010) 2 SCC 162 , this Court held as under: 20. It is now well settled that determination of the question as to who is the legal representative of the deceased plaintiff or defendant under Order 22 Rule 5 of the Code of Civil Procedure is only for the purpose of bringing legal representatives on record for the conducting of those legal proceedings only and does not operate as res judicata and the inter se dispute between the rival legal representatives has to be independently tried and decided in probate proceedings. If this is allowed to be carried on for a decision of an eviction suit or other allied suits, the suits would be delayed, by which only the tenants will be benefited. 14. In view of the aforesaid judgments, we find that the appellant is the sole claimant to the estate of the deceased on the basis of Will. The Executing Court has found that the appellant is the legal representative of the deceased competent to execute the decree. In view of the said fact, the appellant as the legal representative is entitled to execute the decree and to take it to its logical end. 15. In addition to the nature of proceedings to implead the legal representative to execute the decree, we find that none of the tests laid down in Section 115 of the Code were satisfied by the High Court so as to set aside the order passed by the Executing Court. The High Court in exercise of revision jurisdiction has interfered with the order passed by the Executing Court as if it was acting as the first court of appeal. An order passed by a subordinate court can be interfered with only if it exercises its jurisdiction, not vested in it by law or has failed to exercise its jurisdiction so vested or has acted in exercise of jurisdiction illegally or with material irregularity. The mere fact that the High Court had a different view on the same facts would not confer jurisdiction to interfere with an order passed by the Executing Court.
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7. We find that the order of the High Court is not sustainable in law. The appellant claims to be the legal representative of Umadevi on the basis of the Will executed by her. He has produced an attesting witness and the scribe of the Will. The witnesses have deposed the execution of the Will by Umadevi in favour of the appellant who is the son of her sister. No one else has come forward to seek execution of decree as the legal representative of the deceased decree holder. It is Umadevi who has filed the execution petition but after her death, the appellant has filed an application to continue with the execution. In the absence of any rival claimant claiming to be the legal representative of the deceased decree holder, the High Court was not justified in setting aside the order of the Executing Court, when in terms of Order XXII Rule 5 of the Code, the jurisdiction to determine who is a legal heir is summary in nature8. We may state that Order XXII of the Code is applicable to the pending proceedings in a suit. But the conflicting claims of legal representatives can be decided in execution proceedings in view of the principles of Rule 5 of Order XXII14. In view of the aforesaid judgments, we find that the appellant is the sole claimant to the estate of the deceased on the basis of Will. The Executing Court has found that the appellant is the legal representative of the deceased competent to execute the decree. In view of the said fact, the appellant as the legal representative is entitled to execute the decree and to take it to its logical end15. In addition to the nature of proceedings to implead the legal representative to execute the decree, we find that none of the tests laid down in Section 115 of the Code were satisfied by the High Court so as to set aside the order passed by the Executing Court. The High Court in exercise of revision jurisdiction has interfered with the order passed by the Executing Court as if it was acting as the first court of appeal. An order passed by a subordinate court can be interfered with only if it exercises its jurisdiction, not vested in it by law or has failed to exercise its jurisdiction so vested or hasacted in exercise of jurisdiction illegally or with material irregularity. The mere fact that the High Court had a different view on the same facts would not confer jurisdiction to interfere with an order passed by the Executing Court.
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THE STATE OF GUJARAT Vs. AFROZ MOHAMMED HASANFATTA | of receipt in the normal course of his business dealings. The bank statement produced by the prosecution showing the deposit of amount in the account of respondent-accused and M/s Nile Trading Corporation and receipt of the amount by the respondents brother are the prima facie materials showing that there are sufficient grounds for proceeding against the accused. The evidence and materials so produced by the prosecution cannot be brushed aside on the possible defence which the respondent is taking that such credits are in the regular course of his business dealings. 45. The learned senior counsel for the respondent contended that the receipt of over Rs.16,00,00,000/- by the respondent- accused was business income from the sale of diamonds. Learned counsel for the appellant-State submitted that no such explanation has ever been offered by the respondent in the revision petition or before the learned Single Judge and this argument has been made across the Bar. The correctness of the defence plea that the money received by the respondent in the bank account of M/s Nile Trading Corporation (proprietorship of respondent-accused) and by his brother-Jafar Mohammad is to show that the said amount has been received in the regular course of business transaction. The respondent would also have to show that he has declared this receipt as business income in his income tax return for the relevant year. 46. Additionally, the prosecution also relies upon Call Detail Records to show that the respondent was in contact with the accused Madanlal Jain, witness Praful Patel and accused Amit @ Bilal Haroon Gilani during the period when these alleged instances of hawala took place. 47. The learned Single Judge in the impugned order extensively extracted statement of the witnesses viz. Jafar Mohammed, brother of respondent, Samir Jiker Gohil, Manager of Nile Industries and other witnesses of Angadias Firms, concluded that none of the statements allege anything incriminating against the respondent. The learned Single Judge further observed that neither the angadiyas nor the cheque discounters who admittedly were recipients of huge cash payments for further transfer to other companies, alleged any dealing or transaction with the petitioner, much less any incriminating transaction. There was huge flow of money into the account of the respondent and Nile Trading Corporation and also to his brother Jafar Mohammed. During trial, it is for the prosecution to show how these money transactions are linked to establish that the respondent was collecting money from remitters and transmitting the same to Prafulbhai Patel through Angadias. At the stage of issue of process, the court is not required to go into the merits of the evidence collected and examine whether they are incriminating the accused or not. 48. The learned Single Judge extracted the statement of Angadias in extenso and observed that the representatives of S. Babulal Angadia and P . Umeshchandra whose names are appearing in the statements of Prafulbhai Patel also did not reveal any such transaction with the respondent herein. Likewise, the learned Single Judge also referred to the banking transactions and observed that the bank statements of the respondent and his brother do not show commission of any offence lodged against the respondent even on prima facie basis. As discussed earlier, at the stage of issuance of process, sufficiency of evidence or otherwise is not to be seen. Meticulous consideration of the statement of witnesses and other materials produced is unfolded. The above materials produced by the prosecution ought not to have been brushed aside by the learned Single Judge to quash the order of issuance of summons to the respondent-accused. As to whether these evidence are sufficient to sustain the conviction of the respondent-accused or whether he has a plausible defence or explanation is the matter to be considered at the stage of trial. The learned Single Judge ought not to have weighed the merits of the case at the initial stage of issuance of summons to the accused. 49. While hearing revision under Section 397 Cr.P .C., the High Court does not sit as an appellate court and will not reappreciate the evidence unless the judgment of the lower court suffers from perversity. Based on the charge sheet and the materials produced thereon when the Magistrate satisfied that there are sufficient grounds for proceeding, the learned Single Judge was not justified in examining the merits and demerits of the case and substitute its own view. When the satisfaction of the Magistrate was based on the charge sheet and the materials placed before him, the satisfaction cannot be said to be erroneous or perverse and the satisfaction ought not to have been interfered with. 50. As discussed earlier, while taking cognizance of an offence based upon a police report, it is the satisfaction of the Magistrate that there is sufficient ground to proceed against the accused. As discussed earlier, along with the second supplementary charge sheet, number of materials like statement of witnesses, Bank statement of the respondent-accused and his company Nile Trading Corporation and other Bank Statement, Call Detail Records and other materials were placed. Upon consideration of the second supplementary charge sheet and the materials placed thereon, the Magistrate satisfied himself that there is sufficient ground to proceed against the respondent and issued summons. The learned Single Judge, in our considered view, erred in interfering with the order of the Magistrate in exercise of revisional jurisdiction. 51. In our view, the learned Single Judge ought not to have gone into the merits of the matter when the matter is in nascent stage. When the prosecution relies upon the materials, strict standard of proof is not to be applied at the stage of issuance of summons nor to examine the probable defence which the accused may take. All that the court is required to do is to satisfy itself as to whether there are sufficient grounds for proceeding. The learned Single Judge committed a serious error in going into the merits and demerits of the case and the impugned order is liable to be set aside. | 1[ds]15. It is well-settled that at the stage of issuing process, the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and the Magistrate is only to be satisfied that there are sufficient grounds for proceeding against the accused. It is fairly well-settled that when issuing summons, the Magistrate need not explicitly state the reasons for his satisfaction that there are sufficient grounds for proceeding against the accused.17. The learned senior counsel appearing for the respondent- accused relied upon various judgments to contend that while taking cognizance, the court has to record the reasons that prima facie case is made out and that there are sufficient grounds for proceeding against the accused for that offence. The learned senior counsel appearing on behalf of the respondent-accused relied upon judgments in the case of Pepsi Foods Ltd. and Mehmood Ul Rehman to contend that while taking cognizance, the Court has to record reasons that prima facie case is made out and that there are sufficient grounds for proceeding against the accused for that offence. On the facts and circumstances of those cases, this Court held that the order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. However, what needs to be understood is that those cases relate to issuance of process taking cognizance of offences based on the complaint. Be it noted that as per the definition under Section 2(d) Cr.P .C, complaint does not include a police report. Those cases do not relate to taking of cognizance upon a police report under Section 190(1)(b) Cr.P .C. Those cases relate to taking cognizance of offences based on the complaint.A combined reading of Section 203 and Section 204 Cr.P .C. shows that for dismissal of a complaint, reasons should be recorded. The procedure for trial of warrant cases is provided in Chapter XIX – Trial of Warrant Cases by the Magistrates. Chapter XIX deals with two types of cases – A – Cases instituted on a police report and B – Cases instituted otherwise than on police report. In the present case, cognizance has been taken on the basis of police report21. In summoning the accused, it is not necessary for the Magistrate to examine the merits and demerits of the case and whether the materials collected is adequate for supporting the conviction. The court is not required to evaluate the evidence and its merits. The standard to be adopted for summoning the accused under Section 204 Cr.P .C. is not the same at the time of framing the charge. For issuance of summons under Section 204 Cr.P .C., the expression used is there is sufficient ground for proceeding…..; whereas for framing the charges, the expression used in Sections 240 and 246 IPC is there is ground for presuming that the accused has committed an offence…... At the stage of taking cognizance of the offence based upon a police report and for issuance of summons under Section 204 Cr.P .C., detailed enquiry regarding the merits and demerits of the case is not required. The fact that after investigation of the case, the police has filed charge sheet along with the materials thereon may be considered as sufficient ground for proceeding for issuance of summons under Section 204 Cr.P .C22. In so far as taking cognizance based on the police report, the Magistrate has the advantage of the charge sheet, statement of witnesses and other evidence collected by the police during the investigation. Investigating Officer/SHO collects the necessary evidence during the investigation conducted in compliance with the provisions of the Criminal Procedure Code and in accordance with the rules of investigation. Evidence and materials so collected are sifted at the level of the Investigating Officer and thereafter, charge sheet was filed. In appropriate cases, opinion of the Public Prosecutor is also obtained before filing the charge sheet. The court thus has the advantage of the police report along with the materials placed before it by the police. Under Section 190 (1)(b) Cr.P .C., where the Magistrate has taken cognizance of an offence upon a police report and the Magistrate is satisfied that there is sufficient ground for proceeding, the Magistrate directs issuance of process. In case of taking cognizance of an offence based upon the police report, the Magistrate is not required to record reasons for issuing the process. In cases instituted on a police report, the Magistrate is only required to pass an order issuing summons to the accused. Such an order of issuing summons to the accused is based upon subject to satisfaction of the Magistrate considering the police report and other documents and satisfying himself that there is sufficient ground for proceeding against the accused. In a case based upon the police report, at the stage of issuing the summons to the accused, the Magistrate is not required to record any reason. In case, if the charge sheet is barred by law or where there is lack of jurisdiction or when the charge sheet is rejected or not taken on file, then the Magistrate is required to record his reasons for rejection of the charge sheet and for not taking on file. In the present case, cognizance of the offence has been taken by taking into consideration the charge sheet filed by the police for the offence under Sections 420, 465, 467, 468, 471, 477A and 120B IPC, the order for issuance of process without explicitly recording reasons for its satisfaction for issue of process does not suffer from any illegality31. The above statement of Prafulbhai Patel prima facie shows that the respondent-accused participated in the collection of cash and also acted as a facilitator for the illegal transfer of cash abroad. After extracting the statement of Prafulbhai Patel, the learned Single Judge held that the statement of Prafulbhai Patel no way shows the role of the petitioner in any cheating, forgery, falsification of accounts, conspiracy, making foreign remittance on the strength of fake Bills of Entry, dealing of the petitioner in cash with cheque discounters or Angadias to arrange for remittances against forged Bills of Entry. In our view, the learned Single Judge erred in observing that the statement of Prafulbhai Patel no way shows role of the respondent-accused. A reading of the statement of Prafulbhai Patel prima facie shows that the respondent-accused was collecting cash and sending it to Prafulbhai Patel through couriers and thereby acted as a conduit for the illegal transfer of cash abroad32. The learned Single Judge then proceeded to examine the evidentiary value of the statement of Prafulbhai Patel and observed that the statement of Prafulbhai Patel is in the nature of hearsay and is inadmissible in evidence. The learned Single Judge observed that the statement of Prafulbhai Patel with reference to the respondents business and accounts is only hearsay and he never stated that he had directly or indirectly dealt with the respondent33. The learned senior counsel for the respondent submitted that the statement of Prafulbhai Patel which is in the nature of hearsay is inadmissible qua the respondent. It was submitted that there was no contemporaneous exposition which corroborates the statement of Prafulbhai Patel to make it fall under Section 6 of Evidence Act so as to make it admissible as res gestae. It was submitted that the statement of Prafulbhai Patel being in the nature of hearsay and in the absence of any material to bring it under Section 6 of the Indian Evidence Act, there is no basis for the allegation against the respondent-accused and the learned Single Judge rightly held that there is no ground for proceeding against the accused36. The learned senior counsel appearing for the respondent submitted that in their statements, Angadias have not stated anything incriminating against the respondent and in the absence of any material emerging from the statement of these witnesses, there is nothing incriminating against the respondent to connect him with the transactions of remittance of foreign exchange to foreignThere is no merit in the above contention. The Angadias are yet to be examined in the court. During the time of trial, at the time of examining of Angadiyas, it is open to the prosecution to confront them with the relevant materials linking the respondent with the alleged transactions37. For issuance of process against the accused, it has to be seen only whether there is sufficient ground for proceeding against the accused. At the stage of issuance of process, the Court is not required to weigh the evidentiary value of the materials on record. The Court must apply its mind to the allegations in the charge sheet and the evidence produced and satisfy itself that there is sufficient ground to proceed against the accused. The Court is not to examine the merits and demerits of the case and not to determine the adequacy of the evidence for holding the accused guilty. The Court is also not required to embark upon the possible defences. Likewise, possible defences need not be taken into consideration at the time of issuing process unless there is an ex- facie defence such as a legal bar or if in law the accused is not liable. [Vide Nupur Talwar v. Central Bureau of Investigation and another (2012) 11 SCC 465 ]38. The learned Single Judge observed that there is nothing in the supplementary charge sheets to even remotely suggest any role of the petitioner in setting up of any of the foreign companies who were recipient of the amounts fraudulently sent abroad or any Indian Entity which fraudulently remitted the amounts out of India ………. or of having received the remitted amount out of India directly or indirectly. The learned Single Judge was not right in saying that there was no material that the respondent has played any role in the conspiracy in making the black money in cash into white and fraudulently inducing the banks based on fake bills of entry and remitting the amount in foreign exchange to foreign banks based in Hong Kong and Dubai. The learned Single Judge erred in brushing aside the materials produced by the prosecution which prima-facie indicate the role of the respondent that he used to collect the money from the remitters and respondent and his person Amit @ Bilal Haroon Gilani sending it through Angadiya Firms to Prafulbhai Patel who in turn deposited the same through RTGS in the accounts of the companies operated by Madan Lal Jain which money was transferred abroad by foreign exchange (vide chart supra). We deem it appropriate to refer to some of the evidence and other materials produced by the prosecution along with the charge sheet39. Jafar Mohammad-brother of the respondent admitted that Rs.3,00,00,000/- were deposited in his account on the instructions of the respondent-accused from the company controlled by accused-Madanlal Jain. On being asked about the entry of Rs.1,00,00,000/- on 06.01.2014 and Rs.2,00,00,000/- on 31.01.2014 in his current account from the account of M/s Natural Trading Company (company of accused Madanlal Jain), Jafar Mohammed stated that in January, 2014 he needed some money in the share business and therefore, he spoke to the respondent- Afroz Mohammad Hasanfatta about getting him loan and so, the amount was credited in his account through RTGS. He stated that he does not know about the ownership of M/s Natural Trading Company and also does not know Madanlal Jain. The question whether Jafar Mohammad, brother of respondent-accused received money as a genuine loan transaction or whether it was a part of the commission, could be examined only at the stage of trial when the parties adduced oral or documentary evidence40. That apart, in the statement dated 18.10.2014, Samir Jiker Godil, Manager of Nile Industries/proprietorship of respondent, stated that he obtained an unsecured loan of Rs.1,15,00,000/- from the respondent-Afroz in February, 2014 and the said amount was credited in the account of his wife with Union Bank of India from the bank account of Nile Trading Corporation. He stated that he took the said amount from the respondent to do business in share market. He stated that the said amount was given to him by crediting the same in the bank account of his wife Foziya Samir Godil from the bank account of M/s Nile Trading Corporation. He stated that out of the said amount, he repaid Rs.91,00,000/- by depositing the same in the bank account of two persons as per say of respondent from the aforementioned bank account of his wife through RTGS. He stated that he does not know in whose account the said amount was deposited42. Mr. Mukul Rohatgi, learned senior counsel appearing for the respondent submitted that the two companies namely M/s Natural Trading Corporation and Gangeshwar Mercantile Pvt. Ltd. who had remitted an amount of Rs.16,00,00,000/- in the accounts of the respondent and his brother which amount is stated to be as commission, have not been arraigned as accused nor its Director/partner Shri Pukhraj Anandmal Mutha has been shown asThis contention does not merit acceptance. Only during the time of trial, trail of money from the above two companies to the account of the respondent could be established44. Having received a huge amount of Rs.16,00,00,000/-, it is for the accused to establish his defence plea at the time of trial that the money is by way of receipt in the normal course of his business dealings. The bank statement produced by the prosecution showing the deposit of amount in the account of respondent-accused and M/s Nile Trading Corporation and receipt of the amount by the respondents brother are the prima facie materials showing that there are sufficient grounds for proceeding against the accused. The evidence and materials so produced by the prosecution cannot be brushed aside on the possible defence which the respondent is taking that such credits are in the regular course of his business dealings45. The learned senior counsel for the respondent contended that the receipt of over Rs.16,00,00,000/- by the respondent- accused was business income from the sale of diamonds. Learned counsel for the appellant-State submitted that no such explanation has ever been offered by the respondent in the revision petition or before the learned Single Judge and this argument has been made across the Bar. The correctness of the defence plea that the money received by the respondent in the bank account of M/s Nile Trading Corporation (proprietorship of respondent-accused) and by his brother-Jafar Mohammad is to show that the said amount has been received in the regular course of business transaction. The respondent would also have to show that he has declared this receipt as business income in his income tax return for the relevant year46. Additionally, the prosecution also relies upon Call Detail Records to show that the respondent was in contact with the accused Madanlal Jain, witness Praful Patel and accused Amit @ Bilal Haroon Gilani during the period when these alleged instances of hawala took place47. The learned Single Judge in the impugned order extensively extracted statement of the witnesses viz. Jafar Mohammed, brother of respondent, Samir Jiker Gohil, Manager of Nile Industries and other witnesses of Angadias Firms, concluded that none of the statements allege anything incriminating against the respondent. The learned Single Judge further observed that neither the angadiyas nor the cheque discounters who admittedly were recipients of huge cash payments for further transfer to other companies, alleged any dealing or transaction with the petitioner, much less any incriminating transaction. There was huge flow of money into the account of the respondent and Nile Trading Corporation and also to his brother Jafar Mohammed. During trial, it is for the prosecution to show how these money transactions are linked to establish that the respondent was collecting money from remitters and transmitting the same to Prafulbhai Patel through Angadias. At the stage of issue of process, the court is not required to go into the merits of the evidence collected and examine whether they are incriminating the accused or not48. The learned Single Judge extracted the statement of Angadias in extenso and observed that the representatives of S. Babulal Angadia and P . Umeshchandra whose names are appearing in the statements of Prafulbhai Patel also did not reveal any such transaction with the respondent herein. Likewise, the learned Single Judge also referred to the banking transactions and observed that the bank statements of the respondent and his brother do not show commission of any offence lodged against the respondent even on prima facie basis. As discussed earlier, at the stage of issuance of process, sufficiency of evidence or otherwise is not to be seen. Meticulous consideration of the statement of witnesses and other materials produced is unfolded. The above materials produced by the prosecution ought not to have been brushed aside by the learned Single Judge to quash the order of issuance of summons to the respondent-accused. As to whether these evidence are sufficient to sustain the conviction of the respondent-accused or whether he has a plausible defence or explanation is the matter to be considered at the stage of trial. The learned Single Judge ought not to have weighed the merits of the case at the initial stage of issuance of summons to the accused49. While hearing revision under Section 397 Cr.P .C., the High Court does not sit as an appellate court and will not reappreciate the evidence unless the judgment of the lower court suffers from perversity. Based on the charge sheet and the materials produced thereon when the Magistrate satisfied that there are sufficient grounds for proceeding, the learned Single Judge was not justified in examining the merits and demerits of the case and substitute its own view. When the satisfaction of the Magistrate was based on the charge sheet and the materials placed before him, the satisfaction cannot be said to be erroneous or perverse and the satisfaction ought not to have been interfered with50. As discussed earlier, while taking cognizance of an offence based upon a police report, it is the satisfaction of the Magistrate that there is sufficient ground to proceed against the accused. As discussed earlier, along with the second supplementary charge sheet, number of materials like statement of witnesses, Bank statement of the respondent-accused and his company Nile Trading Corporation and other Bank Statement, Call Detail Records and other materials were placed. Upon consideration of the second supplementary charge sheet and the materials placed thereon, the Magistrate satisfied himself that there is sufficient ground to proceed against the respondent and issued summons. The learned Single Judge, in our considered view, erred in interfering with the order of the Magistrate in exercise of revisional jurisdiction51. In our view, the learned Single Judge ought not to have gone into the merits of the matter when the matter is in nascent stage. When the prosecution relies upon the materials, strict standard of proof is not to be applied at the stage of issuance of summons nor to examine the probable defence which the accused may take. All that the court is required to do is to satisfy itself as to whether there are sufficient grounds for proceeding. The learned Single Judge committed a serious error in going into the merits and demerits of the case and the impugned order is liable to be set aside. | 1 | 10,450 | 3,445 | ### Instruction:
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of receipt in the normal course of his business dealings. The bank statement produced by the prosecution showing the deposit of amount in the account of respondent-accused and M/s Nile Trading Corporation and receipt of the amount by the respondents brother are the prima facie materials showing that there are sufficient grounds for proceeding against the accused. The evidence and materials so produced by the prosecution cannot be brushed aside on the possible defence which the respondent is taking that such credits are in the regular course of his business dealings. 45. The learned senior counsel for the respondent contended that the receipt of over Rs.16,00,00,000/- by the respondent- accused was business income from the sale of diamonds. Learned counsel for the appellant-State submitted that no such explanation has ever been offered by the respondent in the revision petition or before the learned Single Judge and this argument has been made across the Bar. The correctness of the defence plea that the money received by the respondent in the bank account of M/s Nile Trading Corporation (proprietorship of respondent-accused) and by his brother-Jafar Mohammad is to show that the said amount has been received in the regular course of business transaction. The respondent would also have to show that he has declared this receipt as business income in his income tax return for the relevant year. 46. Additionally, the prosecution also relies upon Call Detail Records to show that the respondent was in contact with the accused Madanlal Jain, witness Praful Patel and accused Amit @ Bilal Haroon Gilani during the period when these alleged instances of hawala took place. 47. The learned Single Judge in the impugned order extensively extracted statement of the witnesses viz. Jafar Mohammed, brother of respondent, Samir Jiker Gohil, Manager of Nile Industries and other witnesses of Angadias Firms, concluded that none of the statements allege anything incriminating against the respondent. The learned Single Judge further observed that neither the angadiyas nor the cheque discounters who admittedly were recipients of huge cash payments for further transfer to other companies, alleged any dealing or transaction with the petitioner, much less any incriminating transaction. There was huge flow of money into the account of the respondent and Nile Trading Corporation and also to his brother Jafar Mohammed. During trial, it is for the prosecution to show how these money transactions are linked to establish that the respondent was collecting money from remitters and transmitting the same to Prafulbhai Patel through Angadias. At the stage of issue of process, the court is not required to go into the merits of the evidence collected and examine whether they are incriminating the accused or not. 48. The learned Single Judge extracted the statement of Angadias in extenso and observed that the representatives of S. Babulal Angadia and P . Umeshchandra whose names are appearing in the statements of Prafulbhai Patel also did not reveal any such transaction with the respondent herein. Likewise, the learned Single Judge also referred to the banking transactions and observed that the bank statements of the respondent and his brother do not show commission of any offence lodged against the respondent even on prima facie basis. As discussed earlier, at the stage of issuance of process, sufficiency of evidence or otherwise is not to be seen. Meticulous consideration of the statement of witnesses and other materials produced is unfolded. The above materials produced by the prosecution ought not to have been brushed aside by the learned Single Judge to quash the order of issuance of summons to the respondent-accused. As to whether these evidence are sufficient to sustain the conviction of the respondent-accused or whether he has a plausible defence or explanation is the matter to be considered at the stage of trial. The learned Single Judge ought not to have weighed the merits of the case at the initial stage of issuance of summons to the accused. 49. While hearing revision under Section 397 Cr.P .C., the High Court does not sit as an appellate court and will not reappreciate the evidence unless the judgment of the lower court suffers from perversity. Based on the charge sheet and the materials produced thereon when the Magistrate satisfied that there are sufficient grounds for proceeding, the learned Single Judge was not justified in examining the merits and demerits of the case and substitute its own view. When the satisfaction of the Magistrate was based on the charge sheet and the materials placed before him, the satisfaction cannot be said to be erroneous or perverse and the satisfaction ought not to have been interfered with. 50. As discussed earlier, while taking cognizance of an offence based upon a police report, it is the satisfaction of the Magistrate that there is sufficient ground to proceed against the accused. As discussed earlier, along with the second supplementary charge sheet, number of materials like statement of witnesses, Bank statement of the respondent-accused and his company Nile Trading Corporation and other Bank Statement, Call Detail Records and other materials were placed. Upon consideration of the second supplementary charge sheet and the materials placed thereon, the Magistrate satisfied himself that there is sufficient ground to proceed against the respondent and issued summons. The learned Single Judge, in our considered view, erred in interfering with the order of the Magistrate in exercise of revisional jurisdiction. 51. In our view, the learned Single Judge ought not to have gone into the merits of the matter when the matter is in nascent stage. When the prosecution relies upon the materials, strict standard of proof is not to be applied at the stage of issuance of summons nor to examine the probable defence which the accused may take. All that the court is required to do is to satisfy itself as to whether there are sufficient grounds for proceeding. The learned Single Judge committed a serious error in going into the merits and demerits of the case and the impugned order is liable to be set aside.
### Response:
1
### Explanation:
trial that the money is by way of receipt in the normal course of his business dealings. The bank statement produced by the prosecution showing the deposit of amount in the account of respondent-accused and M/s Nile Trading Corporation and receipt of the amount by the respondents brother are the prima facie materials showing that there are sufficient grounds for proceeding against the accused. The evidence and materials so produced by the prosecution cannot be brushed aside on the possible defence which the respondent is taking that such credits are in the regular course of his business dealings45. The learned senior counsel for the respondent contended that the receipt of over Rs.16,00,00,000/- by the respondent- accused was business income from the sale of diamonds. Learned counsel for the appellant-State submitted that no such explanation has ever been offered by the respondent in the revision petition or before the learned Single Judge and this argument has been made across the Bar. The correctness of the defence plea that the money received by the respondent in the bank account of M/s Nile Trading Corporation (proprietorship of respondent-accused) and by his brother-Jafar Mohammad is to show that the said amount has been received in the regular course of business transaction. The respondent would also have to show that he has declared this receipt as business income in his income tax return for the relevant year46. Additionally, the prosecution also relies upon Call Detail Records to show that the respondent was in contact with the accused Madanlal Jain, witness Praful Patel and accused Amit @ Bilal Haroon Gilani during the period when these alleged instances of hawala took place47. The learned Single Judge in the impugned order extensively extracted statement of the witnesses viz. Jafar Mohammed, brother of respondent, Samir Jiker Gohil, Manager of Nile Industries and other witnesses of Angadias Firms, concluded that none of the statements allege anything incriminating against the respondent. The learned Single Judge further observed that neither the angadiyas nor the cheque discounters who admittedly were recipients of huge cash payments for further transfer to other companies, alleged any dealing or transaction with the petitioner, much less any incriminating transaction. There was huge flow of money into the account of the respondent and Nile Trading Corporation and also to his brother Jafar Mohammed. During trial, it is for the prosecution to show how these money transactions are linked to establish that the respondent was collecting money from remitters and transmitting the same to Prafulbhai Patel through Angadias. At the stage of issue of process, the court is not required to go into the merits of the evidence collected and examine whether they are incriminating the accused or not48. The learned Single Judge extracted the statement of Angadias in extenso and observed that the representatives of S. Babulal Angadia and P . Umeshchandra whose names are appearing in the statements of Prafulbhai Patel also did not reveal any such transaction with the respondent herein. Likewise, the learned Single Judge also referred to the banking transactions and observed that the bank statements of the respondent and his brother do not show commission of any offence lodged against the respondent even on prima facie basis. As discussed earlier, at the stage of issuance of process, sufficiency of evidence or otherwise is not to be seen. Meticulous consideration of the statement of witnesses and other materials produced is unfolded. The above materials produced by the prosecution ought not to have been brushed aside by the learned Single Judge to quash the order of issuance of summons to the respondent-accused. As to whether these evidence are sufficient to sustain the conviction of the respondent-accused or whether he has a plausible defence or explanation is the matter to be considered at the stage of trial. The learned Single Judge ought not to have weighed the merits of the case at the initial stage of issuance of summons to the accused49. While hearing revision under Section 397 Cr.P .C., the High Court does not sit as an appellate court and will not reappreciate the evidence unless the judgment of the lower court suffers from perversity. Based on the charge sheet and the materials produced thereon when the Magistrate satisfied that there are sufficient grounds for proceeding, the learned Single Judge was not justified in examining the merits and demerits of the case and substitute its own view. When the satisfaction of the Magistrate was based on the charge sheet and the materials placed before him, the satisfaction cannot be said to be erroneous or perverse and the satisfaction ought not to have been interfered with50. As discussed earlier, while taking cognizance of an offence based upon a police report, it is the satisfaction of the Magistrate that there is sufficient ground to proceed against the accused. As discussed earlier, along with the second supplementary charge sheet, number of materials like statement of witnesses, Bank statement of the respondent-accused and his company Nile Trading Corporation and other Bank Statement, Call Detail Records and other materials were placed. Upon consideration of the second supplementary charge sheet and the materials placed thereon, the Magistrate satisfied himself that there is sufficient ground to proceed against the respondent and issued summons. The learned Single Judge, in our considered view, erred in interfering with the order of the Magistrate in exercise of revisional jurisdiction51. In our view, the learned Single Judge ought not to have gone into the merits of the matter when the matter is in nascent stage. When the prosecution relies upon the materials, strict standard of proof is not to be applied at the stage of issuance of summons nor to examine the probable defence which the accused may take. All that the court is required to do is to satisfy itself as to whether there are sufficient grounds for proceeding. The learned Single Judge committed a serious error in going into the merits and demerits of the case and the impugned order is liable to be set aside.
|
Indrapuri Griha Nirman Sahakari Samiti Ltd Vs. The State Of Rajasthan & Ors | Ray, C.J.1. These appeals are by special leave from the judgment D/- 12-4-1973 of the Rajasthan High Court.2. The State of Rajasthan proposed to acquire land for the planned development of the city of Jaipur.On 13 May, 1960 a notice was issued under Sec. 4 of the Rajasthan Land Acquisition Act, 1953 (hereinafter referred to as the Act) which was published in the Rajasthan Gazette on 9 June, 1960. No objection was made under Section 5A of the Act. A notice under Section 6 of the Act was published on 11 May, 1961. On 18 July, 1961 notices under S.9 of the Act were issued, 63 persons including the predecessor-in-title of the appellant in Civil Appeal No. 943 of 1973 filed claims.An award under the Act was made on 9 January, 1964. On 9 July 1964 the award was amended because of certain transactions of sale of portions of the land.3. Writ Petitions were filed on 23 January, 1970. The appellants challenged the validity of the notifications dated 13 May, 1960 and 3 May, 1961 issued under Sections 4 and 6 of the Act. The appellants also challenged the notices dated 18 July, 1961 under S.9 of the Act.4. The High Court held that the appellants were guilty of inordinate delay. The appellants failed on that ground.The High Court also dealt with the challenge to the land acquisition proceedings on the ground of discrimination and the further plea that the land was being acquired at negligible price and the same would be sold at exorbitant price by the Improvement Trust to the public. The High Court did not accept any of the grounds on the merits.5. The Attorney General said at the threshold that if the appellants would fail on the ground of delay it was not necessary to go into the rest of the contentions in the judgment.6. This Court in the recent unreported decision in Writ Petn. No. 362 of 1972 decided on 28-8-1974 = (now reported in AIR 1974 SC 2077 ) Aflatoon v. Lt. Governor of Delhi, held that if persons allowed the Government to complete the acquisition proceedings on the basis that the notification under Section 4 and the declaration under Section 6 were valid and then attacked the notification on grounds which were available to them at the time when the notification was published it would be putting a premium on dilatory tactics.7. The facts in Aflatoons case, Writ Petn. No. 362 of 1972. D/- 23-8-1974 = (now reported in AIR 1974 SC 2077 ) (supra) were these. On 13 November, 1959 notification under Section 4 of the Land Acquisition Act was issued. Between 1959 and 1961 objections were filed under Section 3A of the Act. On 18 March, 1966 declaration under Section 6 of the Act was published. In 1970 notices under Section 9 of the Act were issued. Writ Petitions were filed in 1972. The petititioners did not move after the declaration under Section 6 of the Act. The petitioners came to the court after the issue of notices under Section 9 of the Act.8. In the present case the facts show in bold relief that the appellants came to Court nine years after the declaration under Section 6 of the Act.9. Land Acquisition proceedings commence with the notification under Section 4 of the Act. Objections are invited under Section 5A of the Act. Therefore a declaration under Section 6 of the Act is made. Any challenge to a notification under Section 4 and a declaration under Sec.6 of the Act should be made within a reasonable time thereafter. The length of the delay is an important circumstance because of the nature of the acts done during the interval on the basis of the notification and the declaration.10. The High Court rightly dismissed the applications on the ground of delay.11. | 0[ds]In the present case the facts show in bold relief that the appellants came to Court nine years after the declaration under Section 6 of the Act.Land Acquisition proceedings commence with the notification under Section 4 of the Act. Objections are invited under Section 5A of the Act. Therefore a declaration under Section 6 of the Act is made. Any challenge to a notification under Section 4 and a declaration under Sec.6 of the Act should be made within a reasonable time thereafter. The length of the delay is an important circumstance because of the nature of the acts done during the interval on the basis of the notification and the declaration.The High Court rightly dismissed the applications on the ground of delay. | 0 | 698 | 132 | ### 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:
Ray, C.J.1. These appeals are by special leave from the judgment D/- 12-4-1973 of the Rajasthan High Court.2. The State of Rajasthan proposed to acquire land for the planned development of the city of Jaipur.On 13 May, 1960 a notice was issued under Sec. 4 of the Rajasthan Land Acquisition Act, 1953 (hereinafter referred to as the Act) which was published in the Rajasthan Gazette on 9 June, 1960. No objection was made under Section 5A of the Act. A notice under Section 6 of the Act was published on 11 May, 1961. On 18 July, 1961 notices under S.9 of the Act were issued, 63 persons including the predecessor-in-title of the appellant in Civil Appeal No. 943 of 1973 filed claims.An award under the Act was made on 9 January, 1964. On 9 July 1964 the award was amended because of certain transactions of sale of portions of the land.3. Writ Petitions were filed on 23 January, 1970. The appellants challenged the validity of the notifications dated 13 May, 1960 and 3 May, 1961 issued under Sections 4 and 6 of the Act. The appellants also challenged the notices dated 18 July, 1961 under S.9 of the Act.4. The High Court held that the appellants were guilty of inordinate delay. The appellants failed on that ground.The High Court also dealt with the challenge to the land acquisition proceedings on the ground of discrimination and the further plea that the land was being acquired at negligible price and the same would be sold at exorbitant price by the Improvement Trust to the public. The High Court did not accept any of the grounds on the merits.5. The Attorney General said at the threshold that if the appellants would fail on the ground of delay it was not necessary to go into the rest of the contentions in the judgment.6. This Court in the recent unreported decision in Writ Petn. No. 362 of 1972 decided on 28-8-1974 = (now reported in AIR 1974 SC 2077 ) Aflatoon v. Lt. Governor of Delhi, held that if persons allowed the Government to complete the acquisition proceedings on the basis that the notification under Section 4 and the declaration under Section 6 were valid and then attacked the notification on grounds which were available to them at the time when the notification was published it would be putting a premium on dilatory tactics.7. The facts in Aflatoons case, Writ Petn. No. 362 of 1972. D/- 23-8-1974 = (now reported in AIR 1974 SC 2077 ) (supra) were these. On 13 November, 1959 notification under Section 4 of the Land Acquisition Act was issued. Between 1959 and 1961 objections were filed under Section 3A of the Act. On 18 March, 1966 declaration under Section 6 of the Act was published. In 1970 notices under Section 9 of the Act were issued. Writ Petitions were filed in 1972. The petititioners did not move after the declaration under Section 6 of the Act. The petitioners came to the court after the issue of notices under Section 9 of the Act.8. In the present case the facts show in bold relief that the appellants came to Court nine years after the declaration under Section 6 of the Act.9. Land Acquisition proceedings commence with the notification under Section 4 of the Act. Objections are invited under Section 5A of the Act. Therefore a declaration under Section 6 of the Act is made. Any challenge to a notification under Section 4 and a declaration under Sec.6 of the Act should be made within a reasonable time thereafter. The length of the delay is an important circumstance because of the nature of the acts done during the interval on the basis of the notification and the declaration.10. The High Court rightly dismissed the applications on the ground of delay.11.
### Response:
0
### Explanation:
In the present case the facts show in bold relief that the appellants came to Court nine years after the declaration under Section 6 of the Act.Land Acquisition proceedings commence with the notification under Section 4 of the Act. Objections are invited under Section 5A of the Act. Therefore a declaration under Section 6 of the Act is made. Any challenge to a notification under Section 4 and a declaration under Sec.6 of the Act should be made within a reasonable time thereafter. The length of the delay is an important circumstance because of the nature of the acts done during the interval on the basis of the notification and the declaration.The High Court rightly dismissed the applications on the ground of delay.
|
Kanaklata Das & Others Vs. Naba Kumar Das & Others | order of the High Court, restore the order of the Trial Court with observations hereinbelow.10. In other words, we are inclined to dismiss the application filed by respondent No. 1 under Order 1 Rule 10(2) of the Code in appellants’ ejectment suit.11. There are some well-settled principles of law on the question involved in this appeal, which need to be taken into consideration while deciding the question arose in this appeal. These principles are mentioned infra.12. First, in an eviction suit filed by the plaintiff (Landlord) against the defendant(Tenant) under the State Rent Act, the landlord and tenant are the only necessary parties.13. In other words, in a tenancy suit, only two persons are necessary parties for the decision of the suit, namely, the landlord and the tenant.14. Second, the landlord (plaintiff) in such suit is required to plead and prove only two things to enable him to claim a decree for eviction against his tenant from the tenanted suit premises. First, there exists a relationship of the landlord and tenant between the plaintiff and the defendant and second, the ground(s) on which the plaintiff-landlord has sought defendant’s-tenants eviction under the Rent Act exists. When these two things are proved, eviction suit succeeds.15. Third, the question of title to the suit premises is not germane for the decision of the eviction suit. The reason being, if the landlord fails to prove his title to the suit premises but proves the existence of relationship of the landlord and tenant in relation to the suit premises and further proves existence of any ground on which the eviction is sought under the Tenancy Act, the eviction suit succeeds.16. Conversely, if the landlord proves his title to the suit premises but fails to prove the existence of relationship of the landlord and tenant in relation to the suit premises, the eviction suit fails. (See-Dr. Ranbir Singh vs. Asharfi Lal, 1995(6) SCC 580).17. Fourth, the plaintiff being a dominus litis cannot be compelled to make any third person a party to the suit, be that a plaintiff or the defendant, against his wish unless such person is able to prove that he is a necessary party to the suit and without his presence, the suit cannot proceed and nor can be decided effectively.18. In other words, no person can compel the plaintiff to allow such person to become the co-plaintiff or defendant in the suit. It is more so when such person is unable to show as to how he is a necessary or proper party to the suit and how without his presence, the suit can neither proceed and nor it can be decided or how his presence is necessary for the effective decision of the suit. (See-Ruma Chakraborty vs. Sudha Rani Banerjee & Anr., 2005(8) SCC 140)19. Fifth, a necessary party is one without whom, no order can be made effectively, a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. (See-Udit Narain Singh Malpaharia vs. Additional Member Board of Revenue, Bihar & Anr., AIR 1963 786)20. Sixth, if there are co-owners or co-landlords of the suit premises then any co-owner or co-landlord can file a suit for eviction against the tenant. In other words, it is not necessary that all the owners/landlords should join in filing the eviction suit against the tenant. (See-Kasthuri Radhakrishnan & Ors. vs. M. Chinniyan & Anr., 2016(3) SCC 296)21. Keeping in mind the aforementioned well settled principles of law and on examining the legality of the impugned order, we find that the impugned order is not legally sustainable and hence deserves to be set aside.22. In our considered opinion, respondent No. 1, who claims to be the co-sharer or/and co-owner with the plaintiffs (appellants herein) of the suit property is neither a necessary and nor a proper party in the eviction suit of the appellants against respondent Nos. 2 to 5. In other words, such eviction suit can be decreed or dismissed on merits even without the impleadment of respondent No.1.23. In the eviction suit, the question of title or the extent of the shares held by the appellants and respondent No. 1 against each other in the suit premises cannot be decided and nor can be made the subject matter for its determination.24. The reason being that this is not a suit between the appellants (plaintiffs) and respondent No.1 where their inter se rights relating to the suit premises can be gone into but rather is an ejectment suit filed by the appellants against respondent Nos. 2 to 5 for their eviction from the suit premises.25. Therefore, the Lis in the suit is between the appellants on the one hand and respondent Nos. 2 to 5 on the other hand and the decision in the suit would depend upon the question as to whether there exists any relationship of landlord and tenant between the appellants and respondent Nos. 2 to 5 in relation to the suit premises and, if so, whether the grounds pleaded in the plaint for claiming eviction of respondent Nos. 2 to 5 are established or not. For deciding these two main questions, the presence of respondent No. 1 is not necessary.26. For these reasons, we are of the considered opinion that respondent No. 1 is neither a necessary and nor a proper party in the suit.27. We, however, make it clear that any finding whether directly or indirectly, if recorded by the Trial Court touching the question of title over the suit property, would not be binding on respondent No.1 regardless of the outcome of the suit and respondent No. 1 would be free to file an independent civil suit against the appellants for a declaration of his right, title and interest in the suit premises and in any other properties, if so, and claim partition and separate possession of his share by metes and bounds in all such properties. | 1[ds]9. Having heard the learned counsel for the appellants and respondent No. 1,who alone is the contesting respondent in this appeal and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside the impugned order of the High Court, restore the order of the Trial Court with observations hereinbelow.10. In other words, we are inclined to dismiss the application filed by respondent No. 1 under Order 1 Rule 10(2) of the Code inejectment suit.11. There are someprinciples of law on the question involved in this appeal, which need to be taken into consideration while deciding the question arose in this appeal. These principles are mentioned infra.12. First, in an eviction suit filed by the plaintiff (Landlord) against the defendant(Tenant) under the State Rent Act, the landlord and tenant are the only necessary parties.13. In other words, in a tenancy suit, only two persons are necessary parties for the decision of the suit, namely, the landlord and the tenant.14. Second, the landlord (plaintiff) in such suit is required to plead and prove only two things to enable him to claim a decree for eviction against his tenant from the tenanted suit premises. First, there exists a relationship of the landlord and tenant between the plaintiff and the defendant and second, the ground(s) on which thets eviction under the Rent Act exists. When these two things are proved, eviction suit succeeds.15. Third, the question of title to the suit premises is not germane for the decision of the eviction suit. The reason being, if the landlord fails to prove his title to the suit premises but proves the existence of relationship of the landlord and tenant in relation to the suit premises and further proves existence of any ground on which the eviction is sought under the Tenancy Act, the eviction suit succeeds.16. Conversely, if the landlord proves his title to the suit premises but fails to prove the existence of relationship of the landlord and tenant in relation to the suit premises, the eviction suit fails.Fourth, the plaintiff being a dominus litis cannot be compelled to make any third person a party to the suit, be that a plaintiff or the defendant, against his wish unless such person is able to prove that he is a necessary party to the suit and without his presence, the suit cannot proceed and nor can be decided effectively.18. In other words, no person can compel the plaintiff to allow such person to become theor defendant in the suit. It is more so when such person is unable to show as to how he is a necessary or proper party to the suit and how without his presence, the suit can neither proceed and nor it can be decided or how his presence is necessary for the effective decision of the suit.19. Fifth, a necessary party is one without whom, no order can be made effectively, a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding.20. Sixth, if there areds of the suit premises then anyrd can file a suit for eviction against the tenant. In other words, it is not necessary that all the owners/landlords should join in filing the eviction suit against the tenant.21. Keeping in mind the aforementioned well settled principles of law and on examining the legality of the impugned order, we find that the impugned order is not legally sustainable and hence deserves to be set aside.22. In our considered opinion, respondent No. 1, who claims to be theer with the plaintiffs (appellants herein) of the suit property is neither a necessary and nor a proper party in the eviction suit of the appellants against respondent Nos. 2 to 5. In other words, such eviction suit can be decreed or dismissed on merits even without the impleadment of respondent No.1.23. In the eviction suit, the question of title or the extent of the shares held by the appellants and respondent No. 1 against each other in the suit premises cannot be decided and nor can be made the subject matter for its determination.24. The reason being that this is not a suit between the appellants (plaintiffs) and respondent No.1 where their inter se rights relating to the suit premises can be gone into but rather is an ejectment suit filed by the appellants against respondent Nos. 2 to 5 for their eviction from the suit premises.25. Therefore, the Lis in the suit is between the appellants on the one hand and respondent Nos. 2 to 5 on the other hand and the decision in the suit would depend upon the question as to whether there exists any relationship of landlord and tenant between the appellants and respondent Nos. 2 to 5 in relation to the suit premises and, if so, whether the grounds pleaded in the plaint for claiming eviction of respondent Nos. 2 to 5 are established or not. For deciding these two main questions, the presence of respondent No. 1 is not necessary.26. For these reasons, we are of the considered opinion that respondent No. 1 is neither a necessary and nor a proper party in the suit.27. We, however, make it clear that any finding whether directly or indirectly, if recorded by the Trial Court touching the question of title over the suit property, would not be binding on respondent No.1 regardless of the outcome of the suit and respondent No. 1 would be free to file an independent civil suit against the appellants for a declaration of his right, title and interest in the suit premises and in any other properties, if so, and claim partition and separate possession of his share by metes and bounds in all such properties. | 1 | 1,698 | 1,087 | ### 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:
order of the High Court, restore the order of the Trial Court with observations hereinbelow.10. In other words, we are inclined to dismiss the application filed by respondent No. 1 under Order 1 Rule 10(2) of the Code in appellants’ ejectment suit.11. There are some well-settled principles of law on the question involved in this appeal, which need to be taken into consideration while deciding the question arose in this appeal. These principles are mentioned infra.12. First, in an eviction suit filed by the plaintiff (Landlord) against the defendant(Tenant) under the State Rent Act, the landlord and tenant are the only necessary parties.13. In other words, in a tenancy suit, only two persons are necessary parties for the decision of the suit, namely, the landlord and the tenant.14. Second, the landlord (plaintiff) in such suit is required to plead and prove only two things to enable him to claim a decree for eviction against his tenant from the tenanted suit premises. First, there exists a relationship of the landlord and tenant between the plaintiff and the defendant and second, the ground(s) on which the plaintiff-landlord has sought defendant’s-tenants eviction under the Rent Act exists. When these two things are proved, eviction suit succeeds.15. Third, the question of title to the suit premises is not germane for the decision of the eviction suit. The reason being, if the landlord fails to prove his title to the suit premises but proves the existence of relationship of the landlord and tenant in relation to the suit premises and further proves existence of any ground on which the eviction is sought under the Tenancy Act, the eviction suit succeeds.16. Conversely, if the landlord proves his title to the suit premises but fails to prove the existence of relationship of the landlord and tenant in relation to the suit premises, the eviction suit fails. (See-Dr. Ranbir Singh vs. Asharfi Lal, 1995(6) SCC 580).17. Fourth, the plaintiff being a dominus litis cannot be compelled to make any third person a party to the suit, be that a plaintiff or the defendant, against his wish unless such person is able to prove that he is a necessary party to the suit and without his presence, the suit cannot proceed and nor can be decided effectively.18. In other words, no person can compel the plaintiff to allow such person to become the co-plaintiff or defendant in the suit. It is more so when such person is unable to show as to how he is a necessary or proper party to the suit and how without his presence, the suit can neither proceed and nor it can be decided or how his presence is necessary for the effective decision of the suit. (See-Ruma Chakraborty vs. Sudha Rani Banerjee & Anr., 2005(8) SCC 140)19. Fifth, a necessary party is one without whom, no order can be made effectively, a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. (See-Udit Narain Singh Malpaharia vs. Additional Member Board of Revenue, Bihar & Anr., AIR 1963 786)20. Sixth, if there are co-owners or co-landlords of the suit premises then any co-owner or co-landlord can file a suit for eviction against the tenant. In other words, it is not necessary that all the owners/landlords should join in filing the eviction suit against the tenant. (See-Kasthuri Radhakrishnan & Ors. vs. M. Chinniyan & Anr., 2016(3) SCC 296)21. Keeping in mind the aforementioned well settled principles of law and on examining the legality of the impugned order, we find that the impugned order is not legally sustainable and hence deserves to be set aside.22. In our considered opinion, respondent No. 1, who claims to be the co-sharer or/and co-owner with the plaintiffs (appellants herein) of the suit property is neither a necessary and nor a proper party in the eviction suit of the appellants against respondent Nos. 2 to 5. In other words, such eviction suit can be decreed or dismissed on merits even without the impleadment of respondent No.1.23. In the eviction suit, the question of title or the extent of the shares held by the appellants and respondent No. 1 against each other in the suit premises cannot be decided and nor can be made the subject matter for its determination.24. The reason being that this is not a suit between the appellants (plaintiffs) and respondent No.1 where their inter se rights relating to the suit premises can be gone into but rather is an ejectment suit filed by the appellants against respondent Nos. 2 to 5 for their eviction from the suit premises.25. Therefore, the Lis in the suit is between the appellants on the one hand and respondent Nos. 2 to 5 on the other hand and the decision in the suit would depend upon the question as to whether there exists any relationship of landlord and tenant between the appellants and respondent Nos. 2 to 5 in relation to the suit premises and, if so, whether the grounds pleaded in the plaint for claiming eviction of respondent Nos. 2 to 5 are established or not. For deciding these two main questions, the presence of respondent No. 1 is not necessary.26. For these reasons, we are of the considered opinion that respondent No. 1 is neither a necessary and nor a proper party in the suit.27. We, however, make it clear that any finding whether directly or indirectly, if recorded by the Trial Court touching the question of title over the suit property, would not be binding on respondent No.1 regardless of the outcome of the suit and respondent No. 1 would be free to file an independent civil suit against the appellants for a declaration of his right, title and interest in the suit premises and in any other properties, if so, and claim partition and separate possession of his share by metes and bounds in all such properties.
### Response:
1
### Explanation:
9. Having heard the learned counsel for the appellants and respondent No. 1,who alone is the contesting respondent in this appeal and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside the impugned order of the High Court, restore the order of the Trial Court with observations hereinbelow.10. In other words, we are inclined to dismiss the application filed by respondent No. 1 under Order 1 Rule 10(2) of the Code inejectment suit.11. There are someprinciples of law on the question involved in this appeal, which need to be taken into consideration while deciding the question arose in this appeal. These principles are mentioned infra.12. First, in an eviction suit filed by the plaintiff (Landlord) against the defendant(Tenant) under the State Rent Act, the landlord and tenant are the only necessary parties.13. In other words, in a tenancy suit, only two persons are necessary parties for the decision of the suit, namely, the landlord and the tenant.14. Second, the landlord (plaintiff) in such suit is required to plead and prove only two things to enable him to claim a decree for eviction against his tenant from the tenanted suit premises. First, there exists a relationship of the landlord and tenant between the plaintiff and the defendant and second, the ground(s) on which thets eviction under the Rent Act exists. When these two things are proved, eviction suit succeeds.15. Third, the question of title to the suit premises is not germane for the decision of the eviction suit. The reason being, if the landlord fails to prove his title to the suit premises but proves the existence of relationship of the landlord and tenant in relation to the suit premises and further proves existence of any ground on which the eviction is sought under the Tenancy Act, the eviction suit succeeds.16. Conversely, if the landlord proves his title to the suit premises but fails to prove the existence of relationship of the landlord and tenant in relation to the suit premises, the eviction suit fails.Fourth, the plaintiff being a dominus litis cannot be compelled to make any third person a party to the suit, be that a plaintiff or the defendant, against his wish unless such person is able to prove that he is a necessary party to the suit and without his presence, the suit cannot proceed and nor can be decided effectively.18. In other words, no person can compel the plaintiff to allow such person to become theor defendant in the suit. It is more so when such person is unable to show as to how he is a necessary or proper party to the suit and how without his presence, the suit can neither proceed and nor it can be decided or how his presence is necessary for the effective decision of the suit.19. Fifth, a necessary party is one without whom, no order can be made effectively, a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding.20. Sixth, if there areds of the suit premises then anyrd can file a suit for eviction against the tenant. In other words, it is not necessary that all the owners/landlords should join in filing the eviction suit against the tenant.21. Keeping in mind the aforementioned well settled principles of law and on examining the legality of the impugned order, we find that the impugned order is not legally sustainable and hence deserves to be set aside.22. In our considered opinion, respondent No. 1, who claims to be theer with the plaintiffs (appellants herein) of the suit property is neither a necessary and nor a proper party in the eviction suit of the appellants against respondent Nos. 2 to 5. In other words, such eviction suit can be decreed or dismissed on merits even without the impleadment of respondent No.1.23. In the eviction suit, the question of title or the extent of the shares held by the appellants and respondent No. 1 against each other in the suit premises cannot be decided and nor can be made the subject matter for its determination.24. The reason being that this is not a suit between the appellants (plaintiffs) and respondent No.1 where their inter se rights relating to the suit premises can be gone into but rather is an ejectment suit filed by the appellants against respondent Nos. 2 to 5 for their eviction from the suit premises.25. Therefore, the Lis in the suit is between the appellants on the one hand and respondent Nos. 2 to 5 on the other hand and the decision in the suit would depend upon the question as to whether there exists any relationship of landlord and tenant between the appellants and respondent Nos. 2 to 5 in relation to the suit premises and, if so, whether the grounds pleaded in the plaint for claiming eviction of respondent Nos. 2 to 5 are established or not. For deciding these two main questions, the presence of respondent No. 1 is not necessary.26. For these reasons, we are of the considered opinion that respondent No. 1 is neither a necessary and nor a proper party in the suit.27. We, however, make it clear that any finding whether directly or indirectly, if recorded by the Trial Court touching the question of title over the suit property, would not be binding on respondent No.1 regardless of the outcome of the suit and respondent No. 1 would be free to file an independent civil suit against the appellants for a declaration of his right, title and interest in the suit premises and in any other properties, if so, and claim partition and separate possession of his share by metes and bounds in all such properties.
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Bawa Harigir Vs. Assistant Custodian, Evacuee Property, Bhopal | the state to take away property without paying any compensation therefore as required by Art. 31(2) of the Constitution. The short answer to this contention is that the provisions of a law made in pursuance of any agreement entered into between the Government of India and the Government of any other country or otherwise with respect to property declared by law to be evacuee property will not be affected by the evacuee property will not be affected by the provisions of Cl. 2 of Art. 31. This is clear from the provisions of Art. 31(5)(b)(iii) which runs thus :"Nothing in Cl. (2) shall affect -...............................................(b) the provisions of any law which the State may hereafter make -................................................(iii) in pursuance of any agreement entered into between the Government of the Dominion of India or the Government of India and the Government of any other country, or otherwise, with respect to property declared by law to be evacuee property."Mr. Sharma, however, contends that the protection afforded by the aforesaid clause must be limited to a law which itself declares any property to be evacuee property and not to a law which empowers an authority to declare any property as evacuee property. We cannot accept the contention. The words property declared by law to be evacuee property" would necessarily include property which could be declared as evacuee property. A law relating to evacuee property would concern itself with laying down the criteria for determining what property is to be considered as evacuee property and could not be expected to specify the particular properties which are to be treated as evacuee properties. The protection afforded by the constitutional provision which we have quoted above is not restricted as suggested by Mr. Sharma but extends to a law which provides for the determination of the criteria for declaring property to be evacuee property.5. The next argument of learned counsel is that the property in question is not evacuee property and that the provisions of Art. 31(1) of the Constitution are a bar against taking it away. It is difficult to appreciate the argument. What Art. 31(1) prohibits is "deprivation of property save by authority of law." No doubt the petitioner can say that he is deprived of his property because of the declaration made by the Custodian that it is evacuee property. But then this declaration has been made in pursuance of a law enacted by Parliament. If as contended by him, we has held that the law is unconstitutional the position would have been different.6. The next contention of learned counsel is that cls. (a) and (c) of S. 40, sub-sec. (4) are ultra vires because they confer arbitrary power upon the Custodian. The reason for raising the contention is that an application made by the petitioner to the Custodian under S. 40 for confirming the sale in his favour was rejected by him on the ground that the evacuee did not act in good faith in effecting the sale. Sub-section (4) of S. 40 reads thus :"The Custodian shall hold an inquiry into the application in the prescribed manner and may reject the application, if he is of opinion that :(a) the transaction has not been entered into in good faith or for valuable consideration, or(b) the transaction is prohibited under any law for the time being in force, or(c) the transaction ought not to be confirmed for any other reason."We are concerned here only with cl. (a) of S. 40(4) to which the Custodian resorted and not with cl. (c). We would, therefore, limit our remarks to cl. (a). Sub-section (4) of S. 40 enables the Custodian to hold an inquiry regarding the genuineness or validity of a transaction sought to be confirmed and cl. (a) empowers him to refuse to confirm it if he finds that it was not entered into in good faith. According to learned counsel the words "good faith" are vague and "slippery" and an do not furnish any standard or a norm which has to be conformed to by the Custodian. Apart from the fact that the words "good faith" occur in a number of statutes and have acquired a definite meaning in courts of law, it may be pointed out that the power conferred by sub-sec. (4) of S. 40 is in the nature of a judicial power and, therefore, the absence of a standard for the determination of the question would not render the provision unconstitutional.7. Learned counsel wanted to contend that the absence of good faith on the part of the transferor was not sufficient and could not be regarded as a ground for refusing recognition to the transfer and that unless it is shown that the transferee was also lacking in good faith the transfer had to be confirmed under sub-sec. (4) of S. 40. He, however, did not press the contention when it was pointed out to him that in Rabia Bai by her agent Abu Bucker Sait v. The Custodian General of Evacuee Property, New Delhi, C. A. No. 22 of 1956 decided on January 12, 1961 : (AIR 1961 SC 1002 ) this Court has upheld the order of the Custodian refusing to confirm the transfer on the ground that the evacuee had effected it in bad faith.8. The last contention of learned counsel is that he has been discriminated against by the Custodian in the matter of confirmation of the transaction. He said that prior to the sale of the land to him by Rehmatullah, the letter had sold a house to some nurses and that that sale was found to be for inadequate consideration but in spite of that it was confirmed by the Custodian while the sale in his favour, though found to be for an adequate consideration was not confirmed. We would repeat that the order of the Custodian is a judicial order and merely because he may have gone wrong in dealing with one case we cannot hold that the petitioner has been discriminated against. | 0[ds]The short answer to this contention is that the provisions of a law made in pursuance of any agreement entered into between the Government of India and the Government of any other country or otherwise with respect to property declared by law to be evacuee property will not be affected by the evacuee property will not be affected by the provisions of Cl. 2 of Art.Art. 31(1) prohibits is "deprivation of property save by authority of law." No doubt the petitioner can say that he is deprived of his property because of the declaration made by the Custodian that it is evacuee property. But then this declaration has been made in pursuance of a law enacted by Parliament. If as contended by him, we has held that the law is unconstitutional the position would have beenfrom the fact that the words "good faith" occur in a number of statutes and have acquired a definite meaning in courts of law, it may be pointed out that the power conferred by sub-sec. (4) of S. 40 is in the nature of a judicial power and, therefore, the absence of a standard for the determination of the question would not render the provisionwould repeat that the order of the Custodian is a judicial order and merely because he may have gone wrong in dealing with one case we cannot hold that the petitioner has been discriminated against. | 0 | 1,514 | 259 | ### 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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the state to take away property without paying any compensation therefore as required by Art. 31(2) of the Constitution. The short answer to this contention is that the provisions of a law made in pursuance of any agreement entered into between the Government of India and the Government of any other country or otherwise with respect to property declared by law to be evacuee property will not be affected by the evacuee property will not be affected by the provisions of Cl. 2 of Art. 31. This is clear from the provisions of Art. 31(5)(b)(iii) which runs thus :"Nothing in Cl. (2) shall affect -...............................................(b) the provisions of any law which the State may hereafter make -................................................(iii) in pursuance of any agreement entered into between the Government of the Dominion of India or the Government of India and the Government of any other country, or otherwise, with respect to property declared by law to be evacuee property."Mr. Sharma, however, contends that the protection afforded by the aforesaid clause must be limited to a law which itself declares any property to be evacuee property and not to a law which empowers an authority to declare any property as evacuee property. We cannot accept the contention. The words property declared by law to be evacuee property" would necessarily include property which could be declared as evacuee property. A law relating to evacuee property would concern itself with laying down the criteria for determining what property is to be considered as evacuee property and could not be expected to specify the particular properties which are to be treated as evacuee properties. The protection afforded by the constitutional provision which we have quoted above is not restricted as suggested by Mr. Sharma but extends to a law which provides for the determination of the criteria for declaring property to be evacuee property.5. The next argument of learned counsel is that the property in question is not evacuee property and that the provisions of Art. 31(1) of the Constitution are a bar against taking it away. It is difficult to appreciate the argument. What Art. 31(1) prohibits is "deprivation of property save by authority of law." No doubt the petitioner can say that he is deprived of his property because of the declaration made by the Custodian that it is evacuee property. But then this declaration has been made in pursuance of a law enacted by Parliament. If as contended by him, we has held that the law is unconstitutional the position would have been different.6. The next contention of learned counsel is that cls. (a) and (c) of S. 40, sub-sec. (4) are ultra vires because they confer arbitrary power upon the Custodian. The reason for raising the contention is that an application made by the petitioner to the Custodian under S. 40 for confirming the sale in his favour was rejected by him on the ground that the evacuee did not act in good faith in effecting the sale. Sub-section (4) of S. 40 reads thus :"The Custodian shall hold an inquiry into the application in the prescribed manner and may reject the application, if he is of opinion that :(a) the transaction has not been entered into in good faith or for valuable consideration, or(b) the transaction is prohibited under any law for the time being in force, or(c) the transaction ought not to be confirmed for any other reason."We are concerned here only with cl. (a) of S. 40(4) to which the Custodian resorted and not with cl. (c). We would, therefore, limit our remarks to cl. (a). Sub-section (4) of S. 40 enables the Custodian to hold an inquiry regarding the genuineness or validity of a transaction sought to be confirmed and cl. (a) empowers him to refuse to confirm it if he finds that it was not entered into in good faith. According to learned counsel the words "good faith" are vague and "slippery" and an do not furnish any standard or a norm which has to be conformed to by the Custodian. Apart from the fact that the words "good faith" occur in a number of statutes and have acquired a definite meaning in courts of law, it may be pointed out that the power conferred by sub-sec. (4) of S. 40 is in the nature of a judicial power and, therefore, the absence of a standard for the determination of the question would not render the provision unconstitutional.7. Learned counsel wanted to contend that the absence of good faith on the part of the transferor was not sufficient and could not be regarded as a ground for refusing recognition to the transfer and that unless it is shown that the transferee was also lacking in good faith the transfer had to be confirmed under sub-sec. (4) of S. 40. He, however, did not press the contention when it was pointed out to him that in Rabia Bai by her agent Abu Bucker Sait v. The Custodian General of Evacuee Property, New Delhi, C. A. No. 22 of 1956 decided on January 12, 1961 : (AIR 1961 SC 1002 ) this Court has upheld the order of the Custodian refusing to confirm the transfer on the ground that the evacuee had effected it in bad faith.8. The last contention of learned counsel is that he has been discriminated against by the Custodian in the matter of confirmation of the transaction. He said that prior to the sale of the land to him by Rehmatullah, the letter had sold a house to some nurses and that that sale was found to be for inadequate consideration but in spite of that it was confirmed by the Custodian while the sale in his favour, though found to be for an adequate consideration was not confirmed. We would repeat that the order of the Custodian is a judicial order and merely because he may have gone wrong in dealing with one case we cannot hold that the petitioner has been discriminated against.
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The short answer to this contention is that the provisions of a law made in pursuance of any agreement entered into between the Government of India and the Government of any other country or otherwise with respect to property declared by law to be evacuee property will not be affected by the evacuee property will not be affected by the provisions of Cl. 2 of Art.Art. 31(1) prohibits is "deprivation of property save by authority of law." No doubt the petitioner can say that he is deprived of his property because of the declaration made by the Custodian that it is evacuee property. But then this declaration has been made in pursuance of a law enacted by Parliament. If as contended by him, we has held that the law is unconstitutional the position would have beenfrom the fact that the words "good faith" occur in a number of statutes and have acquired a definite meaning in courts of law, it may be pointed out that the power conferred by sub-sec. (4) of S. 40 is in the nature of a judicial power and, therefore, the absence of a standard for the determination of the question would not render the provisionwould repeat that the order of the Custodian is a judicial order and merely because he may have gone wrong in dealing with one case we cannot hold that the petitioner has been discriminated against.
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Anil Kak Vs. Kumari Sharada Raje | is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. [See Madhukar D. Shende v. Tarabai Shedage (2002) 2 SCC 85 and Sridevi & Ors. v. Jayaraja Shetty & Ors. (2005) 2 SCC 784 ]. Subject to above, proof of a Will does not ordinarily differ from that of proving any other document." [See also Adivekka and Others v. Hanamavva Kom Venkatesh (Dead) By LRs. and Another (2007) 7 SCC 91 ] 40. Whereas execution of any other document can be proved by proving the writings of the document or the contents of it as also the execution thereof, in the event there exists suspicious circumstances the party seeking to obtain probate and/ or letters of administration with a copy of the Will annexed must also adduce evidence to the satisfaction of the court before it can be accepted as genuine. 41. As an order granting probate is a judgment in rem, the court must also satisfy its conscience before it passes an order. It may be true that deprivation of a due share by the natural heir by itself may not be held to be a suspicious circumstance but it is one of the factors which is taken into consideration by the courts before granting probate of a Will. Unlike other documents, even animus attestandi is a necessary ingredient for proving the attestation. In Benga Behera & Anr. v. Braja Kishore Nanda & Ors. [2007 (7) SCALE 228 ], this Court held: "46. Existence of suspicious circumstances itself may be held to be sufficient to arrive at a conclusion that execution of the Will has not duly been proved." In B. Venkatamuni v. C.J. Ayodhya Ram Singh & Ors. [2006 (11) SCALE 148 ], it was stated: "However, having regard to the fact that the Will was registered one and the propounder had discharged the onus, it was held that in such circumstances, the onus shifts to the contestant opposing the Will to bring material on record meeting such prima facie case in which event the onus shifts back on the propounder to satisfy the court affirmatively that the testator did not know well the contents of the Will and in sound disposing capacity executed the same. Each case, however, must be determined in the fact situation obtaining therein. The Division Bench of the High Court was, with respect, thus, entirely wrong in proceeding on the premise that compliance of legal formalities as regards proof of the Will would sub-serve the purpose and the suspicious circumstances surrounding the execution thereof is not of much significance. The suspicious circumstances pointed out by the learned District Judge and the learned Single Judge of the High Court, were glaring on the face of the records. They could not have been ignored by the Division Bench and in any event, the Division Bench should have been slow in interfering with the findings of fact arrived at by the said court. It applied a wrong legal test and thus, came to an erroneous decision." Yet again in Savithri & Ors. v. Karthyayani Amma & Ors. [JT 2007 (12) SC 248 ], this Court held: "18. We do not find in the fact situation obtaining herein that any such suspicious circumstance was existing. We are not unmindful of the fact that the court must satisfy its conscience before its genuineness is accepted. But what is necessary therefor, is a rational approach. 19. Deprivation of a due share by the natural heirs itself is not a factor which would lead to the conclusion that there exist suspicious circumstances. For the said purpose, as noticed hereinbefore, the background facts should also be taken into consideration. The son was not meeting his father. He had not been attending to him. He was not even meeting the expenses for his treatment from 1959, when he lost his job till his death in 1978. The testator was living with his sister and her children. If in that situation, if he executed a Will in their favour, no exception thereto can be taken. Even then, something was left for the appellant." 42. The court is, thus, required to adopt a rational approach in a situation of this nature. Once the court is required to satisfy its conscience, existence of suspicious circumstances play a prominent role. The Will, as noticed hereinbefore, is in two parts. Whereas the first part deals with the property belonging to the husband of the testatrix, the second part deals with the properties which purportedly belongs to her. Distribution of assets, however, was not specifically stated in the Will. They were to be made as per the appendices annexed thereto. The appendices which were required to be read as a part of the main Will so as to effectuate the intention of the testatrix have not been proved. The Will by its own cannot be given effect to. The Will must be read along with the appendices. No doubt in construing a Will arm chair rule is to be adopted. The Will was, therefore, not complete. It is not correct to contend that the appendices were very much in existence at the time when the Will was executed. Existence of a document must mean the actual existence. | 0[ds]18. Although all the four daughters of the testatrix were the beneficiaries of the properties described in Part A of the Will, detailed directions as to how the said estate is to be administered had been made therein. Even in relation to the criteria as regards distribution of assets including the manner in which the tax and other liabilities are to be made and how the investments with banks and others are to be encashed, if necessary to be encashed have been stated. More importantly, however, the shares in the companies were to be held in the joint names of the testatrix as also the joint executors. The executors were to hold the same in trust. Whether the said direction had been carried out and, if so, how and in what manner is not known. Executors had also been granted express power to recall and repossess the jewellery, money or moneys wroth possessed by any beneficiary of the Will or legatee but ownership of which was not conferred on them for the purpose of meeting government dues, liabilities or expenses21. It is not denied or disputed that the appellant Anil Kak took an active part in the matter of preparation and execution of the Will. For proving the said Will, the appellants examined one of the executors, viz., Kumar Rampratap Singh as PW-1. He was not aware of the contents of the Will. It was handed over to him on 10.09.1993 by Shri T.N. Unni (PW-6), Chartered Accountant. It was in turn handed over to Anil Kak. The said Will was not executed in his presence. He was not even aware of the execution thereof23. It is beyond any doubt or dispute that none of the attesting witnesses had put their signatures on appendices A to C. Appendices A to C contain the list of jewelleries in great details and which jewellery should be given to which grand daughter. The Wealth Tax assessment for the year 1992-93 was also annexed by way of a statement showing the market value of the shares of the companies registered in India. Another appendix specified that ACC and TISCO shares were to be equally divided amongst four daughters, viz., as per their average market value on the date of latest Wealth Tax assessment. A statement showing the market value of the shares of the companies registered in U.K. as per the wealth tax assessment for the year 1992-93 was also annexed. In regard to the division thereof, it is stated that "each companys share is divided equally amongst my four daughters".26. It has furthermore not been disputed that whereas Gangesh Kumari, Jagat Bingley and Ashish Dalvi are children of Sumitra Raje Dalvi, the only other grand child of testatrix Vijayender Ghatge is son of Sita Raje Ghatge. From the list containing the details of the jewellery, it appears that Vijendera Ghatge and family had been given one semi rectangle clip set with diamond and ruby cabochon and two buttons studded with diamonds and pearls set in gold. Umika Ghatge had also been given one square diamond ring and one bracelet watch set with diamonds ruby and emerald. It furthermore appears that Arjun Kak is also a beneficiary under the Will28. From what has been noticed hereinbefore it is clearly evident that division has not been made per stripe or per capita but by species. Each one of the jewelleries which was to be bequeathed to each of the beneficiary thereunder had specifically been specified. Moreover, from the valuation report, it would appear that the respective distribution purported to have been made in terms of the appendices would not make them of equal value or nearabout which was the desire of the testatrix33. In a case of this nature, however, in our opinion, Section 87 of the Act will have no application34. If the appendices formed an integral part of the Will and in their absence the Will was not complete, then the intention of the testator cannot be effectuated. A distinction must be made between an incomplete Will and a complete Will although intention of the testator cannot be effectuated. The testators intention is collected from a consideration of the whole Will and not from a part of it. If two parts of the same Will are wholly irreconcilable, the court of law would not be in a position to come to a finding that the Will dated 4.11.1992 could be given effect to irrespective of the appendices. In construing a Will, no doubt all possible contingencies are required to be taken into consideration. Even if a part is invalid, the entire document need not be invalidated, only if it forms a severable part.35. But, the aforementioned principle cannot be applied in the instant case inasmuch as appendices appended to the Will clearly specify as to how and in what manner the intention of the testatrix to divide her properties equally amongst her daughters and/ or her grand children was to be implemented. It is not a case where a general division was to be made leaving the manner of application to the executors. The Will refers to appendices. Once it refers to the appendices indicating that the distribution shall be in terms thereof, it is difficult to comprehend as to how without the same, the Will can be said to be a complete one so as to effectuate the intention of the testator. The intention of the testator in other words must be found out from the entire Will. It has to be read as a whole. An endeavour should be made to give effect to each part of it. Only when one part cannot be given effect to, having regard to another part, the doctrine of purposive construction as also the general principles of construction of deed may be given effect to. In the instant case, the document is one. It is inseparable. Whereas the principal document provides for the broad division, the principles of division laid down therein would be followed if the appendices are to be taken recourse to. If the principles of equality as has been suggested by the learned counsel is to be given effect to, it was expected that the testatrix intended to confer the same benefit or the benefit having same value or nearabout to be conferred on each of the legatees36. The High Court has assigned good and cogent reasons in support of its judgment for not accepting the evidence of Mr. Unni. Mr. Unni admitted that the appendices were to be brought by Anil Kak. If the same had not been brought to her on the day the Will was executed, we wonder how the testatrix had knowledge thereabout. It now almost stands admitted that the appendices did not form part of the Will at the time of its purported execution. If the Will was incomplete the question of its proving the execution does not arise. An integral part of the document for the purpose of satisfying the tests laid down under Section 63(1)(c) of the Act and Section 68 of the Evidence Act must mean a complete document42. The court is, thus, required to adopt a rational approach in a situation of this nature. Once the court is required to satisfy its conscience, existence of suspicious circumstances play a prominent role. The Will, as noticed hereinbefore, is in two parts. Whereas the first part deals with the property belonging to the husband of the testatrix, the second part deals with the properties which purportedly belongs to her. Distribution of assets, however, was not specifically stated in the Will. They were to be made as per the appendices annexed thereto. The appendices which were required to be read as a part of the main Will so as to effectuate the intention of the testatrix have not been proved. The Will by its own cannot be given effect to. The Will must be read along with the appendices. No doubt in construing a Will arm chair rule is to be adopted. The Will was, therefore, not complete. It is not correct to contend that the appendices were very much in existence at the time when the Will was executed. Existence of a document must mean the actual existence | 0 | 7,947 | 1,504 | ### 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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is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. [See Madhukar D. Shende v. Tarabai Shedage (2002) 2 SCC 85 and Sridevi & Ors. v. Jayaraja Shetty & Ors. (2005) 2 SCC 784 ]. Subject to above, proof of a Will does not ordinarily differ from that of proving any other document." [See also Adivekka and Others v. Hanamavva Kom Venkatesh (Dead) By LRs. and Another (2007) 7 SCC 91 ] 40. Whereas execution of any other document can be proved by proving the writings of the document or the contents of it as also the execution thereof, in the event there exists suspicious circumstances the party seeking to obtain probate and/ or letters of administration with a copy of the Will annexed must also adduce evidence to the satisfaction of the court before it can be accepted as genuine. 41. As an order granting probate is a judgment in rem, the court must also satisfy its conscience before it passes an order. It may be true that deprivation of a due share by the natural heir by itself may not be held to be a suspicious circumstance but it is one of the factors which is taken into consideration by the courts before granting probate of a Will. Unlike other documents, even animus attestandi is a necessary ingredient for proving the attestation. In Benga Behera & Anr. v. Braja Kishore Nanda & Ors. [2007 (7) SCALE 228 ], this Court held: "46. Existence of suspicious circumstances itself may be held to be sufficient to arrive at a conclusion that execution of the Will has not duly been proved." In B. Venkatamuni v. C.J. Ayodhya Ram Singh & Ors. [2006 (11) SCALE 148 ], it was stated: "However, having regard to the fact that the Will was registered one and the propounder had discharged the onus, it was held that in such circumstances, the onus shifts to the contestant opposing the Will to bring material on record meeting such prima facie case in which event the onus shifts back on the propounder to satisfy the court affirmatively that the testator did not know well the contents of the Will and in sound disposing capacity executed the same. Each case, however, must be determined in the fact situation obtaining therein. The Division Bench of the High Court was, with respect, thus, entirely wrong in proceeding on the premise that compliance of legal formalities as regards proof of the Will would sub-serve the purpose and the suspicious circumstances surrounding the execution thereof is not of much significance. The suspicious circumstances pointed out by the learned District Judge and the learned Single Judge of the High Court, were glaring on the face of the records. They could not have been ignored by the Division Bench and in any event, the Division Bench should have been slow in interfering with the findings of fact arrived at by the said court. It applied a wrong legal test and thus, came to an erroneous decision." Yet again in Savithri & Ors. v. Karthyayani Amma & Ors. [JT 2007 (12) SC 248 ], this Court held: "18. We do not find in the fact situation obtaining herein that any such suspicious circumstance was existing. We are not unmindful of the fact that the court must satisfy its conscience before its genuineness is accepted. But what is necessary therefor, is a rational approach. 19. Deprivation of a due share by the natural heirs itself is not a factor which would lead to the conclusion that there exist suspicious circumstances. For the said purpose, as noticed hereinbefore, the background facts should also be taken into consideration. The son was not meeting his father. He had not been attending to him. He was not even meeting the expenses for his treatment from 1959, when he lost his job till his death in 1978. The testator was living with his sister and her children. If in that situation, if he executed a Will in their favour, no exception thereto can be taken. Even then, something was left for the appellant." 42. The court is, thus, required to adopt a rational approach in a situation of this nature. Once the court is required to satisfy its conscience, existence of suspicious circumstances play a prominent role. The Will, as noticed hereinbefore, is in two parts. Whereas the first part deals with the property belonging to the husband of the testatrix, the second part deals with the properties which purportedly belongs to her. Distribution of assets, however, was not specifically stated in the Will. They were to be made as per the appendices annexed thereto. The appendices which were required to be read as a part of the main Will so as to effectuate the intention of the testatrix have not been proved. The Will by its own cannot be given effect to. The Will must be read along with the appendices. No doubt in construing a Will arm chair rule is to be adopted. The Will was, therefore, not complete. It is not correct to contend that the appendices were very much in existence at the time when the Will was executed. Existence of a document must mean the actual existence.
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date of latest Wealth Tax assessment. A statement showing the market value of the shares of the companies registered in U.K. as per the wealth tax assessment for the year 1992-93 was also annexed. In regard to the division thereof, it is stated that "each companys share is divided equally amongst my four daughters".26. It has furthermore not been disputed that whereas Gangesh Kumari, Jagat Bingley and Ashish Dalvi are children of Sumitra Raje Dalvi, the only other grand child of testatrix Vijayender Ghatge is son of Sita Raje Ghatge. From the list containing the details of the jewellery, it appears that Vijendera Ghatge and family had been given one semi rectangle clip set with diamond and ruby cabochon and two buttons studded with diamonds and pearls set in gold. Umika Ghatge had also been given one square diamond ring and one bracelet watch set with diamonds ruby and emerald. It furthermore appears that Arjun Kak is also a beneficiary under the Will28. From what has been noticed hereinbefore it is clearly evident that division has not been made per stripe or per capita but by species. Each one of the jewelleries which was to be bequeathed to each of the beneficiary thereunder had specifically been specified. Moreover, from the valuation report, it would appear that the respective distribution purported to have been made in terms of the appendices would not make them of equal value or nearabout which was the desire of the testatrix33. In a case of this nature, however, in our opinion, Section 87 of the Act will have no application34. If the appendices formed an integral part of the Will and in their absence the Will was not complete, then the intention of the testator cannot be effectuated. A distinction must be made between an incomplete Will and a complete Will although intention of the testator cannot be effectuated. The testators intention is collected from a consideration of the whole Will and not from a part of it. If two parts of the same Will are wholly irreconcilable, the court of law would not be in a position to come to a finding that the Will dated 4.11.1992 could be given effect to irrespective of the appendices. In construing a Will, no doubt all possible contingencies are required to be taken into consideration. Even if a part is invalid, the entire document need not be invalidated, only if it forms a severable part.35. But, the aforementioned principle cannot be applied in the instant case inasmuch as appendices appended to the Will clearly specify as to how and in what manner the intention of the testatrix to divide her properties equally amongst her daughters and/ or her grand children was to be implemented. It is not a case where a general division was to be made leaving the manner of application to the executors. The Will refers to appendices. Once it refers to the appendices indicating that the distribution shall be in terms thereof, it is difficult to comprehend as to how without the same, the Will can be said to be a complete one so as to effectuate the intention of the testator. The intention of the testator in other words must be found out from the entire Will. It has to be read as a whole. An endeavour should be made to give effect to each part of it. Only when one part cannot be given effect to, having regard to another part, the doctrine of purposive construction as also the general principles of construction of deed may be given effect to. In the instant case, the document is one. It is inseparable. Whereas the principal document provides for the broad division, the principles of division laid down therein would be followed if the appendices are to be taken recourse to. If the principles of equality as has been suggested by the learned counsel is to be given effect to, it was expected that the testatrix intended to confer the same benefit or the benefit having same value or nearabout to be conferred on each of the legatees36. The High Court has assigned good and cogent reasons in support of its judgment for not accepting the evidence of Mr. Unni. Mr. Unni admitted that the appendices were to be brought by Anil Kak. If the same had not been brought to her on the day the Will was executed, we wonder how the testatrix had knowledge thereabout. It now almost stands admitted that the appendices did not form part of the Will at the time of its purported execution. If the Will was incomplete the question of its proving the execution does not arise. An integral part of the document for the purpose of satisfying the tests laid down under Section 63(1)(c) of the Act and Section 68 of the Evidence Act must mean a complete document42. The court is, thus, required to adopt a rational approach in a situation of this nature. Once the court is required to satisfy its conscience, existence of suspicious circumstances play a prominent role. The Will, as noticed hereinbefore, is in two parts. Whereas the first part deals with the property belonging to the husband of the testatrix, the second part deals with the properties which purportedly belongs to her. Distribution of assets, however, was not specifically stated in the Will. They were to be made as per the appendices annexed thereto. The appendices which were required to be read as a part of the main Will so as to effectuate the intention of the testatrix have not been proved. The Will by its own cannot be given effect to. The Will must be read along with the appendices. No doubt in construing a Will arm chair rule is to be adopted. The Will was, therefore, not complete. It is not correct to contend that the appendices were very much in existence at the time when the Will was executed. Existence of a document must mean the actual existence
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K. Muthuswami Gounder Vs. N. Palaniappa Gounder | the respondent could contend that the appellant could not claim to be a puisne mortgagee as no charge arises from Ex. A-6. In that event it cannot be said that there is any inconsistency in the stand of the respondent. Therefore, we find that there is no merit in the contention of the appellant and the same is rejected. 11. Shri Parasaran next contended that on a proper interpretation, the document Exhibit A-6 in O.S. 108/50 dated 12.4.1950 creates a charge over property; that the language of the document made it clear that it was offered by way of security to the Court and a document executed in favour of the court under the orders of the Court should be given equal efficacy as a security bond and such a document creates a charge by operation of law. 12. In reply Shri Sanghi submitted that what was granted by Exhibit A-6 was only an undertaking, which would not amount to a charge. 13. The deed of security executed in the case in O.S. No. 108 of 1950 between Messrs Sandanam Mudaliar & Co. v. Ganesan Pillai reads as follows :- "Deed of security executed this the 12th day of April, 1950 in favour of Coimbatore Sub Court by M. Ganasan son of Magudapathi Gounder, Businessman & Agriculturist residing at Gowripuram, Karur Taluk Dt. The aforesaid plaintiff A.M. Sundara Mudaliar has filed the suit against me for recovery of Rs. 6,493.13 Annas with subsequent interest and costs. He has also obtained an order for attachment before judgment of the monies payable to me from South Indian Railway. In order to vacate the aforesaid order for attachment before judgment I have filed an application I.A. No. 811 of 1950 in the said suit O.S. 108 of 1950. As per the order of this Honble High Court I have executed this deed of security in the sum of Rs. 7,000/- and subsequent interest and cost over my self acquired properties in my possession and properties which are nanja lands and are described in the schedule. In the event of a decree being passed in the suit I will not alienate the properties till the decree is discharged. The properties set out hereunder belong to me under the right of purchase dated 14.10.46. There is already a prior mortgage over the properties for a sum of Rs. 3,000/- in favour of one Viravan Chettiar. These properties are capable of being plotted into house sites and therefore their present value is about Rs. 15,000/-. I hereby affirm that there is no kind of encumbrance whatsoever over the properties except the one mentioned above." A perusal of this document will indicate that there was an attachment before judgment for money payable to Ganesan by South Indian Railway and those monies stood attached to satisfy the decree to be passed in the said O.S. No. 108 of 1950. An application was filed by Ganesan to vacate the order of attachment in I.A. No. 811 of 1950 in O.S. No 108 of 1950. In compliance with the order of the Court he had executed a deed of security for a sum of Rs. 7,000/- and subsequent interest and costs over his self acquired properties in his possession described in the schedule. He stated that in the event of a decree being passed in the suit, he will not alienate the properties till the decree is discharged and, therefore, he describes the prior encumbrances in respect of the properties as on the date of the execution of the security bond. A charge is an obligation to make payment out of the property specified. In the present case there is no clear recital in the document of having created an obligation to make payment of the decretal amount out of the property in question. 14. The document Exhibit A-6 Security Bond does not in substance offer suit property by way of security. Even giving the most liberal construction to the document we cannot say that a charge as such has been created in respect of the suit property for money to be decreed in the suit. All that it states is that in the event of decrees being passed not to alienate the property till the decree is discharged, which is a mere undertaking without creating a charge. Therefore, we agree with the finding of the High Court that the document at Exhibit A-6 is not a charge. If that is so the suit filed by the appellant has got to be dismissed.15. There is yet another reason as to why the High Court held that the appellant cannot claim any rights under Exhibit A.6 the alleged Security Bond executed in O.S. 108/50. The decree obtained in that suit was a simple money decree and not a decree on a charge or mortgage with the result the appellant who purchased the property in execution of that decree did not acquire the rights under the said document Ex. A.6. This finding appears to be correct. The decree holder sought to execute the decree in E.P. 305/62 to order sale of the suit property stating that the same is secured in the bond Ex. P.6. However, the executing court did not proceed on that basis and raised objections thereto. Thereafter, the decree holder sought for attachment of the suit property independent of the so-called charge under Ex. A.6. If really the decree holder in the proceedings wanted to proceed on the basis of the security arising out of charge under Ex. A.6., the requirement of attachment was superfluous. Whether the claim under Ex. A.6 arising out of charge was given up or not, what was pursued in the execution proceeding was only to attach the suit property without recourse to charge under Ex. A.6. Therefore, the appellant could not have acquired any rights of mortgagee under Ex A.6, the security bond. For this reason also appellants suit is liable to be dismissed and the finding of the High Court, therefore, stands affirmed. | 0[ds]14. The document ExhibitSecurity Bond does not in substance offer suit property by way of security. Even giving the most liberal construction to the document we cannot say that a charge as such has been created in respect of the suit property for money to be decreed in the suit. All that it states is that in the event of decrees being passed not to alienate the property till the decree is discharged, which is a mere undertaking without creating a charge. Therefore, we agree with the finding of the High Court that the document at Exhibitis not a charge. If that is so the suit filed by the appellant has got to be dismissed.15. There is yet another reason as to why the High Court held that the appellant cannot claim any rights under Exhibit A.6 the alleged Security Bond executed in O.S. 108/50. The decree obtained in that suit was a simple money decree and not a decree on a charge or mortgage with the result the appellant who purchased the property in execution of that decree did not acquire the rights under the said document Ex. A.6. This finding appears to be correct. The decree holder sought to execute the decree in E.P. 305/62 to order sale of the suit property stating that the same is secured in the bond Ex. P.6. However, the executing court did not proceed on that basis and raised objections thereto. Thereafter, the decree holder sought for attachment of the suit property independent of thecharge under Ex. A.6. If really the decree holder in the proceedings wanted to proceed on the basis of the security arising out of charge under Ex. A.6., the requirement of attachment was superfluous. Whether the claim under Ex. A.6 arising out of charge was given up or not, what was pursued in the execution proceeding was only to attach the suit property without recourse to charge under Ex. A.6. Therefore, the appellant could not have acquired any rights of mortgagee under Ex A.6, the security bond. For this reason also appellants suit is liable to be dismissed and the finding of the High Court, therefore, stands affirmed. | 0 | 3,779 | 400 | ### Instruction:
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the respondent could contend that the appellant could not claim to be a puisne mortgagee as no charge arises from Ex. A-6. In that event it cannot be said that there is any inconsistency in the stand of the respondent. Therefore, we find that there is no merit in the contention of the appellant and the same is rejected. 11. Shri Parasaran next contended that on a proper interpretation, the document Exhibit A-6 in O.S. 108/50 dated 12.4.1950 creates a charge over property; that the language of the document made it clear that it was offered by way of security to the Court and a document executed in favour of the court under the orders of the Court should be given equal efficacy as a security bond and such a document creates a charge by operation of law. 12. In reply Shri Sanghi submitted that what was granted by Exhibit A-6 was only an undertaking, which would not amount to a charge. 13. The deed of security executed in the case in O.S. No. 108 of 1950 between Messrs Sandanam Mudaliar & Co. v. Ganesan Pillai reads as follows :- "Deed of security executed this the 12th day of April, 1950 in favour of Coimbatore Sub Court by M. Ganasan son of Magudapathi Gounder, Businessman & Agriculturist residing at Gowripuram, Karur Taluk Dt. The aforesaid plaintiff A.M. Sundara Mudaliar has filed the suit against me for recovery of Rs. 6,493.13 Annas with subsequent interest and costs. He has also obtained an order for attachment before judgment of the monies payable to me from South Indian Railway. In order to vacate the aforesaid order for attachment before judgment I have filed an application I.A. No. 811 of 1950 in the said suit O.S. 108 of 1950. As per the order of this Honble High Court I have executed this deed of security in the sum of Rs. 7,000/- and subsequent interest and cost over my self acquired properties in my possession and properties which are nanja lands and are described in the schedule. In the event of a decree being passed in the suit I will not alienate the properties till the decree is discharged. The properties set out hereunder belong to me under the right of purchase dated 14.10.46. There is already a prior mortgage over the properties for a sum of Rs. 3,000/- in favour of one Viravan Chettiar. These properties are capable of being plotted into house sites and therefore their present value is about Rs. 15,000/-. I hereby affirm that there is no kind of encumbrance whatsoever over the properties except the one mentioned above." A perusal of this document will indicate that there was an attachment before judgment for money payable to Ganesan by South Indian Railway and those monies stood attached to satisfy the decree to be passed in the said O.S. No. 108 of 1950. An application was filed by Ganesan to vacate the order of attachment in I.A. No. 811 of 1950 in O.S. No 108 of 1950. In compliance with the order of the Court he had executed a deed of security for a sum of Rs. 7,000/- and subsequent interest and costs over his self acquired properties in his possession described in the schedule. He stated that in the event of a decree being passed in the suit, he will not alienate the properties till the decree is discharged and, therefore, he describes the prior encumbrances in respect of the properties as on the date of the execution of the security bond. A charge is an obligation to make payment out of the property specified. In the present case there is no clear recital in the document of having created an obligation to make payment of the decretal amount out of the property in question. 14. The document Exhibit A-6 Security Bond does not in substance offer suit property by way of security. Even giving the most liberal construction to the document we cannot say that a charge as such has been created in respect of the suit property for money to be decreed in the suit. All that it states is that in the event of decrees being passed not to alienate the property till the decree is discharged, which is a mere undertaking without creating a charge. Therefore, we agree with the finding of the High Court that the document at Exhibit A-6 is not a charge. If that is so the suit filed by the appellant has got to be dismissed.15. There is yet another reason as to why the High Court held that the appellant cannot claim any rights under Exhibit A.6 the alleged Security Bond executed in O.S. 108/50. The decree obtained in that suit was a simple money decree and not a decree on a charge or mortgage with the result the appellant who purchased the property in execution of that decree did not acquire the rights under the said document Ex. A.6. This finding appears to be correct. The decree holder sought to execute the decree in E.P. 305/62 to order sale of the suit property stating that the same is secured in the bond Ex. P.6. However, the executing court did not proceed on that basis and raised objections thereto. Thereafter, the decree holder sought for attachment of the suit property independent of the so-called charge under Ex. A.6. If really the decree holder in the proceedings wanted to proceed on the basis of the security arising out of charge under Ex. A.6., the requirement of attachment was superfluous. Whether the claim under Ex. A.6 arising out of charge was given up or not, what was pursued in the execution proceeding was only to attach the suit property without recourse to charge under Ex. A.6. Therefore, the appellant could not have acquired any rights of mortgagee under Ex A.6, the security bond. For this reason also appellants suit is liable to be dismissed and the finding of the High Court, therefore, stands affirmed.
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14. The document ExhibitSecurity Bond does not in substance offer suit property by way of security. Even giving the most liberal construction to the document we cannot say that a charge as such has been created in respect of the suit property for money to be decreed in the suit. All that it states is that in the event of decrees being passed not to alienate the property till the decree is discharged, which is a mere undertaking without creating a charge. Therefore, we agree with the finding of the High Court that the document at Exhibitis not a charge. If that is so the suit filed by the appellant has got to be dismissed.15. There is yet another reason as to why the High Court held that the appellant cannot claim any rights under Exhibit A.6 the alleged Security Bond executed in O.S. 108/50. The decree obtained in that suit was a simple money decree and not a decree on a charge or mortgage with the result the appellant who purchased the property in execution of that decree did not acquire the rights under the said document Ex. A.6. This finding appears to be correct. The decree holder sought to execute the decree in E.P. 305/62 to order sale of the suit property stating that the same is secured in the bond Ex. P.6. However, the executing court did not proceed on that basis and raised objections thereto. Thereafter, the decree holder sought for attachment of the suit property independent of thecharge under Ex. A.6. If really the decree holder in the proceedings wanted to proceed on the basis of the security arising out of charge under Ex. A.6., the requirement of attachment was superfluous. Whether the claim under Ex. A.6 arising out of charge was given up or not, what was pursued in the execution proceeding was only to attach the suit property without recourse to charge under Ex. A.6. Therefore, the appellant could not have acquired any rights of mortgagee under Ex A.6, the security bond. For this reason also appellants suit is liable to be dismissed and the finding of the High Court, therefore, stands affirmed.
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Bhagwati Developers Vs. Peerless Genl. Fin. & Investment Co & Or | available for dividend by capitalized:-(1) by the issue and distribution as fully paid up of shares, debentures, debenture stock, bonds or other obligations of the Company, or(ii) by creating shares of the Company which may have been issued and not fully paid up, with the whole or any part of the sum remaining unpaid thereon.Provided that any amounts standing to the credit of the share premium account of the Capital Redemption Reserve Account shall be applied only in crediting the payment of capital on shares of the Company to be issued to members (as herein provided) as fully paid bonus shares.xxx xxx xxxxxx xxx xxx" 9. Reference must also be made to the definition of "Dividend" under Article 12, wherein it has been stated that the word "Dividend" includes "Bonus". On behalf of the Appellant it has been submitted that Article 182 permits capitalization of profits by issuance and distribution of fully paid up shares, debentures, debenture stock amongst others out of the Revaluation of Capital Assets only in such cases where the "funds are available for dividends". It was submitted that the words "available for dividends" under Article 182 cover all the categories of funds which could be capitalized for the purpose of issue of fully paid up shares. It was submitted that any fund which was not available for dividend could not be used for purposes of issue of fully paid up shares. Reliance was then placed upon Article 175 wherein it was provided that no dividend would be payable except out of profits arising from the business of the company. It was submitted that both the Articles have to be read together and, if read together, it is clear that dividends as well as issue of fully paid up shares could only be made out of profits arising from the business of the company and not from the revaluation of capital assets. It was submitted that the High Court erred in holding that the words "available for dividends" only applied to words "other funds of the company or in the hand of the company" and that it did not apply or restrict the other categories laid down under Article 182. 10. On the other hand, on behalf of the Respondents it is submitted that the High Court was right in coming to the conclusion that the words "available for dividends" did not apply to any other categories except the category of funds of the company in the hands of the company. 11. Both sides have also relied on various provisions of the Companies act, some other Articles in the Articles of Association and various authorities. In our view it is not necessary to set those out or deal with them as the decision will have to be based on an interpretation of Article 182. For consideration of the rival arguments Article 182 would have to be broken up in the following manner: "Any General Meeting may resolve that any amounts standing to the credit of(a) Share Premium Account,(b) Capital Redemption Reserve Account and(c) any monies, investments of other assets forming part of the undivided profits including profit or surplus monies arising from (i) realization and (ii) where permitted by law, from the appreciation in value of any capital assets standing to the credit of General Reserve, Reserve or any Reserve Fund or any other Fund of the Company or in the hands of the Company and available for dividends." If read in this manner it is clear that the words "available for dividends" would be applicable to all categories. The High Court was thus wrong in concluding that these words only applied to the last category i.e funds of the company or in the hands of the company. However, it must be seen that the word "Dividend" wherever it appears for dividends" would necessarily mean "available for dividend/bonus". Article 182 itself provides that where the law permits issuing of bonus from appreciation of value in the capital assets the same could be done. If read in the manner suggested by the Appellants this portion of Article 182 i.e issuing of bonus out of Revaluation Reserves would be rendered otiose. So would certain other portions of Article 182 viz. the provision regarding issuing of bonus out of Share Premium Account and Capital Redemption Reserve Account. Section 205 of the Companies Act provides that the dividend could only be issued out of profits of the company. The proviso to sub-section 3 of Section 205 permits capitalization of profits or reserve of a company for the purpose of issuing fully paid up bonus shares or paying up any amount for the time being unpaid on any shares held by the members of the company. Thus the Companies Act specifically permits utilization of reserve arising from revaluation of assets for purpose of issuing fully paid up bonus shares. When the law so permits, Article 182 authorizes the company to issue Bonus shares out of reserves arising from revaluation of capital assets. Thus, even though the interpretation given by the High Court on Article 182 is not correct, still the final conclusion that Article 182 does not prohibit issuance of Bonus shares is correct and requires no interference.12. It was next submitted on behalf of the Appellant that as the directions of the Reserve Bank of India had not been complied with the balance sheet of the Company did not reflect the true picture and in actual fact when the bonus shares were sought to be issued the Company was in a loss. On the other hand it was submitted on behalf of the Respondents that the Company had complied with the directions and had been granted time of 7 years to regularize its accounts. In our view it is not necessary for us to go into this controversy as it will always be open to the Reserve Bank of India to take such action as is available to it in law, if it feels that its directions were not complied with. | 0[ds]6. The SEBI guidelines, which have been relied upon, were clarified on 13th August, 1992 wherein it has been stated that these guidelines do not apply to issue of securities by existing private/closely held and other unlisted companies. In view of this clarification, we see no infirmity in the impugned Judgment wherein it has been held that the SEBI guidelines were not applicable to the Respondent Company.7. We are also in agreement with the observation, in the impugned Judgment, to the effect that the Circular dated 6th September, 1994 does not have any mandatory effect. These Circulars are merely advisory in character.Both sides have also relied on various provisions of the Companies act, some other Articles in the Articles of Association and various authorities. In our view it is not necessary to set those out or deal with them as the decision will have to be based on an interpretation of Articleread in this manner it is clear that the words "available for dividends" would be applicable to all categories. The High Court was thus wrong in concluding that these words only applied to the last category i.e funds of the company or in the hands of the company. However, it must be seen that the word "Dividend" wherever it appears for dividends" would necessarily mean "available for dividend/bonus". Article 182 itself provides that where the law permits issuing of bonus from appreciation of value in the capital assets the same could be done. If read in the manner suggested by the Appellants this portion of Article 182 i.e issuing of bonus out of Revaluation Reserves would be rendered otiose. So would certain other portions of Article 182 viz. the provision regarding issuing of bonus out of Share Premium Account and Capital Redemption Reserve Account. Section 205 of the Companies Act provides that the dividend could only be issued out of profits of the company. The proviso to sub-section 3 of Section 205 permits capitalization of profits or reserve of a company for the purpose of issuing fully paid up bonus shares or paying up any amount for the time being unpaid on any shares held by the members of the company. Thus the Companies Act specifically permits utilization of reserve arising from revaluation of assets for purpose of issuing fully paid up bonus shares. When the law so permits, Article 182 authorizes the company to issue Bonus shares out of reserves arising from revaluation of capital assets. Thus, even though the interpretation given by the High Court on Article 182 is not correct, still the final conclusion that Article 182 does not prohibit issuance of Bonus shares is correct and requires no interference.In our view it is not necessary for us to go into this controversy as it will always be open to the Reserve Bank of India to take such action as is available to it in law, if it feels that its directions were not complied with. | 0 | 2,464 | 531 | ### Instruction:
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available for dividend by capitalized:-(1) by the issue and distribution as fully paid up of shares, debentures, debenture stock, bonds or other obligations of the Company, or(ii) by creating shares of the Company which may have been issued and not fully paid up, with the whole or any part of the sum remaining unpaid thereon.Provided that any amounts standing to the credit of the share premium account of the Capital Redemption Reserve Account shall be applied only in crediting the payment of capital on shares of the Company to be issued to members (as herein provided) as fully paid bonus shares.xxx xxx xxxxxx xxx xxx" 9. Reference must also be made to the definition of "Dividend" under Article 12, wherein it has been stated that the word "Dividend" includes "Bonus". On behalf of the Appellant it has been submitted that Article 182 permits capitalization of profits by issuance and distribution of fully paid up shares, debentures, debenture stock amongst others out of the Revaluation of Capital Assets only in such cases where the "funds are available for dividends". It was submitted that the words "available for dividends" under Article 182 cover all the categories of funds which could be capitalized for the purpose of issue of fully paid up shares. It was submitted that any fund which was not available for dividend could not be used for purposes of issue of fully paid up shares. Reliance was then placed upon Article 175 wherein it was provided that no dividend would be payable except out of profits arising from the business of the company. It was submitted that both the Articles have to be read together and, if read together, it is clear that dividends as well as issue of fully paid up shares could only be made out of profits arising from the business of the company and not from the revaluation of capital assets. It was submitted that the High Court erred in holding that the words "available for dividends" only applied to words "other funds of the company or in the hand of the company" and that it did not apply or restrict the other categories laid down under Article 182. 10. On the other hand, on behalf of the Respondents it is submitted that the High Court was right in coming to the conclusion that the words "available for dividends" did not apply to any other categories except the category of funds of the company in the hands of the company. 11. Both sides have also relied on various provisions of the Companies act, some other Articles in the Articles of Association and various authorities. In our view it is not necessary to set those out or deal with them as the decision will have to be based on an interpretation of Article 182. For consideration of the rival arguments Article 182 would have to be broken up in the following manner: "Any General Meeting may resolve that any amounts standing to the credit of(a) Share Premium Account,(b) Capital Redemption Reserve Account and(c) any monies, investments of other assets forming part of the undivided profits including profit or surplus monies arising from (i) realization and (ii) where permitted by law, from the appreciation in value of any capital assets standing to the credit of General Reserve, Reserve or any Reserve Fund or any other Fund of the Company or in the hands of the Company and available for dividends." If read in this manner it is clear that the words "available for dividends" would be applicable to all categories. The High Court was thus wrong in concluding that these words only applied to the last category i.e funds of the company or in the hands of the company. However, it must be seen that the word "Dividend" wherever it appears for dividends" would necessarily mean "available for dividend/bonus". Article 182 itself provides that where the law permits issuing of bonus from appreciation of value in the capital assets the same could be done. If read in the manner suggested by the Appellants this portion of Article 182 i.e issuing of bonus out of Revaluation Reserves would be rendered otiose. So would certain other portions of Article 182 viz. the provision regarding issuing of bonus out of Share Premium Account and Capital Redemption Reserve Account. Section 205 of the Companies Act provides that the dividend could only be issued out of profits of the company. The proviso to sub-section 3 of Section 205 permits capitalization of profits or reserve of a company for the purpose of issuing fully paid up bonus shares or paying up any amount for the time being unpaid on any shares held by the members of the company. Thus the Companies Act specifically permits utilization of reserve arising from revaluation of assets for purpose of issuing fully paid up bonus shares. When the law so permits, Article 182 authorizes the company to issue Bonus shares out of reserves arising from revaluation of capital assets. Thus, even though the interpretation given by the High Court on Article 182 is not correct, still the final conclusion that Article 182 does not prohibit issuance of Bonus shares is correct and requires no interference.12. It was next submitted on behalf of the Appellant that as the directions of the Reserve Bank of India had not been complied with the balance sheet of the Company did not reflect the true picture and in actual fact when the bonus shares were sought to be issued the Company was in a loss. On the other hand it was submitted on behalf of the Respondents that the Company had complied with the directions and had been granted time of 7 years to regularize its accounts. In our view it is not necessary for us to go into this controversy as it will always be open to the Reserve Bank of India to take such action as is available to it in law, if it feels that its directions were not complied with.
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6. The SEBI guidelines, which have been relied upon, were clarified on 13th August, 1992 wherein it has been stated that these guidelines do not apply to issue of securities by existing private/closely held and other unlisted companies. In view of this clarification, we see no infirmity in the impugned Judgment wherein it has been held that the SEBI guidelines were not applicable to the Respondent Company.7. We are also in agreement with the observation, in the impugned Judgment, to the effect that the Circular dated 6th September, 1994 does not have any mandatory effect. These Circulars are merely advisory in character.Both sides have also relied on various provisions of the Companies act, some other Articles in the Articles of Association and various authorities. In our view it is not necessary to set those out or deal with them as the decision will have to be based on an interpretation of Articleread in this manner it is clear that the words "available for dividends" would be applicable to all categories. The High Court was thus wrong in concluding that these words only applied to the last category i.e funds of the company or in the hands of the company. However, it must be seen that the word "Dividend" wherever it appears for dividends" would necessarily mean "available for dividend/bonus". Article 182 itself provides that where the law permits issuing of bonus from appreciation of value in the capital assets the same could be done. If read in the manner suggested by the Appellants this portion of Article 182 i.e issuing of bonus out of Revaluation Reserves would be rendered otiose. So would certain other portions of Article 182 viz. the provision regarding issuing of bonus out of Share Premium Account and Capital Redemption Reserve Account. Section 205 of the Companies Act provides that the dividend could only be issued out of profits of the company. The proviso to sub-section 3 of Section 205 permits capitalization of profits or reserve of a company for the purpose of issuing fully paid up bonus shares or paying up any amount for the time being unpaid on any shares held by the members of the company. Thus the Companies Act specifically permits utilization of reserve arising from revaluation of assets for purpose of issuing fully paid up bonus shares. When the law so permits, Article 182 authorizes the company to issue Bonus shares out of reserves arising from revaluation of capital assets. Thus, even though the interpretation given by the High Court on Article 182 is not correct, still the final conclusion that Article 182 does not prohibit issuance of Bonus shares is correct and requires no interference.In our view it is not necessary for us to go into this controversy as it will always be open to the Reserve Bank of India to take such action as is available to it in law, if it feels that its directions were not complied with.
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Ramesh Himmatlal Shah Vs. Harsukh Jadhavji Joshi | the Act unlike in the case of a transfer being void under Section 47 (3). There is no impediment to ratification of the assignment by the Committee particularly in view of the legal position arising out of the conjoint, effect of Section 29, Rule 24 and bye-law 9. Section 29 read with R. 24 shows that there is no prohibition as such against transfer of a share to a member or even to a non member if he consents to be a member and makes an application for membership by purchasing five shares as provided under bye-law 9. Reading the aforesaid provisions there is no reason to think that there is any question of refusal of membership of the Society to a non-member if he is qualified otherwise and makes an appropriate application in which case the transfer of shares will be operative and thus the assignment of the right to occupation will hold good. Further it is significant that under Section 146 (a) of the Act, contravention of sub-sec.(2) of Section 47 is punishable under Section 147 of the Act. Contravention of any bye-law is, however, no offence.We therefore, unhesitatingly come to the conclusion that this species of property, namely the right to occupy a flat of this type, assumes significant importance and acquires under the law a stamp of transferability in furtherance of the interest of commerce. We have seen no fetter under any of the legal provisions against such a conclusion. The attachment and the sale of the property in this case in execution of the decree are valid under the law.19. Multi-storeyed ownership flats on co-operative basis in cities and big towns have come to stay because of dire necessity and are in the process of rapid expansion for manifold reasons. Some of these are: ever growing needs of an urban community necessitating its accommodation in proximity to cities and towns, lack of availability of land in urban area, rise in price of building material, restrictions under various rent legislations, disincentive generated by tax laws and other laws for embarking upon housing construction on individual basis, security of possession depending upon fulfilment of the conditions of membership of a society which are none too irksome. In absence of clear and unambiguous legal provisions to the contrary, it will not be in public interest nor in the interest of commerce to impose a ban on saleability of these flats by a tortuous process of reasoning. The prohibition, if intended by the legislature, must be in express terms. We have failed to find one.20. The phenomenon of ownership of flats as contradistinguished from personal houses has been in vogue in England as well as in the European Continent. Ownership rights over separate parts of a building are mentioned in Coke on Littleton and such "super-imposed free holds" have existed in England in various places for a long time (see International and Comparative Law Quarterly Volume VII, January 1958, pages 36-37).21. With regard to a flat owners right to dispose of his rights, it is pointed out that "the flat owner may, in the words of a leading French Commentator "sell, donate, leave by will, let or hypothecate" his right. The rights are regulated by statutes in the Continent. The German Statute, for example, allows the flat owners right to dispose of his property to be made subject to the consent of other flat owners but such consent may be refused only "for a very important reason" (Article 12 (1), (2)) and the statute gives the aggrieved flat-owner easy access to the court if a violation of this provision is alleged (see ibid page 39). Thus the trend is towards recognition of these rights.22. Now that attachment and sale have been held to be valid, it will be for the auction-purchaser first to obtain membership of the society and the Court before confirmation of the sale will insist upon his membership of the society which it would not be unreasonable to assume, will be granted by the Society in the ordinary course unless there are cogent and relevant reasons for not doing so. The fact that at the time of auction-sale the purchaser was not a member of the Society would not in law affect the saleability or prior attachment of the property in execution of the valid decree.23. The judgement-debtor has a valid decree against him. Ordinarily he has to discharge his liability under the decree. He can pay the decretal amount straightway or suffer his property to be attached and sold in execution of the decree. As an honest debtor the liability under the decree has to be discharged. Here the Society is not objecting to the attachment and sale of the property, but the judgment-debtor is. We have seen there is no absolute prohibition against transfer of a right to occupation of the flat or even to transfer a share. The auction-purchaser is presumed to know the limitations under which he has purchased the right to occupy the flat in Court auction. If ultimately the Society turns down his application for membership (which of course cannot be done except for valid reasons) it is up to him to take such course of action as available under the law. Such a remote contingency, per se, will not make the particular right of the ,judgment-debtor in the flat non-attachable or non-saleable.24. It is contended by Mr. Chatterjee that Section. 60, Civil Procedure Code, does not specify that this species of property is liable to attachment. The argument, however, fails to take note of Sec. 60 being not exhaustive as such. It refers also to any other saleable property, movable or immovable, whether the same be held in the name of the judgment-debtor or by another person on his behalf. We have held that the right to occupation of a flat is property both attachable and saleable. Specific non-inclusion of a particular species of property under Section 60 is, therefore, not of any consequence if it is saleable otherwise. | 0[ds]It is not disputed before us and it has been so held by the Court in the claim case by the judgment-debtors brother that the respondent purchased the flat benami in the name of his brother Hasmukh and his wife Shashikala, Although, therefore, the respondent is not a registered holder of the flat, it is clear that the flat is held by his brother and his wife on behalf of the respondent. This is to be noted as Section 60, Civil Procedure Code, reaches a benamihowever, we did not hear Mr. Sanghi, as we are concerned in this appeal only with the question of attach ability and saleability which is a condition prior to the purchase of the property by Bhupendra N. Shah, Mr. Sanghi, therefore, had to retire from theis no absolute prohibition in the Act or in the Rules or in the Bye laws against transfer of interest of a member in the property belonging to the Society. The only transfer which is void under the Act is one made in contravention of sub-section (2) of Section 47 (see Section 47 (3)).We have not been able to find any other provision anywhere" to the same effect. In the scheme of the provisions a dichotomy is seen between share or interest in the capital and interest in property of the Society. While Section 29 (2) refers to transfer of a members share or his interest in the capital or property of any society, Section 31 in contrast speaks of "the share or interest of a member in the capital of a society". The Act, therefore, makes a clear distinction between the share or interest in the capital and share or interest in property of the Society. We have also noticed that the Act does recognise interest in the immovable property of the Society as well (see Sec. 47 (1) (b)). We have seen the qualifications for membership.There is no reason to suppose that if the qualifications under the Bye-laws are fulfilled an application for membership may be rejected. It is admitted that the flat is owned by the Society and the judgment-debtor has a right or interest to occupy thehave already pointed out the difference in language between Section 29 and Section 31 and also made reference to S. 47 (1) (b) in that connection. There is nothing in the language of Section 31 to indicate that the right to occupation which is the right to be sold in auction is not attachable in execution of the decree. There is nothing in Section 31 to even remotely include a prohibition against attachment or sale of the aforesaid right to occupation of the flat. Once Section 31 is out of the way, we are left with Section 29 wherein we do not find even a provision at prior consent for transfer of share or interest in such property. The only restrictions under S. 29 (2) are that the member may not transfer his interest in the property prior to one year and the transfer is made to an existing member of the Society or to a person whose application for membership has been accepted by the Society. It is true that bye-law 71D says that a member to whom a tenement is allotted shall not assign or underlet, vacate or part with the possession of the tenement or any part thereof without the previous consent in writing of the Managing Committee, but there is nothing to show that contravention of this bye-law makes the assignment void under the Act unlike in the case of a transfer being void under Section 47 (3). There is no impediment to ratification of the assignment by the Committee particularly in view of the legal position arising out of the conjoint, effect of Section 29, Rule 24 and bye-law 9. Section 29 read with R. 24 shows that there is no prohibition as such against transfer of a share to a member or even to a non member if he consents to be a member and makes an application for membership by purchasing five shares as provided under bye-law 9. Reading the aforesaid provisions there is no reason to think that there is any question of refusal of membership of the Society to a non-member if he is qualified otherwise and makes an appropriate application in which case the transfer of shares will be operative and thus the assignment of the right to occupation will hold good. Further it is significant that under Section 146 (a) of the Act, contravention of sub-sec.(2) of Section 47 is punishable under Section 147 of the Act. Contravention of any bye-law is, however, no offence.We therefore, unhesitatingly come to the conclusion that this species of property, namely the right to occupy a flat of this type, assumes significant importance and acquires under the law a stamp of transferability in furtherance of the interest of commerce. We have seen no fetter under any of the legal provisions against such a conclusion. The attachment and the sale of the property in this case in execution of the decree are valid under the law.In absence of clear and unambiguous legal provisions to the contrary, it will not be in public interest nor in the interest of commerce to impose a ban on saleability of these flats by a tortuous process of reasoning. The prohibition, if intended by the legislature, must be in express terms. We have failed to find one.Now that attachment and sale have been held to be valid, it will be for the auction-purchaser first to obtain membership of the society and the Court before confirmation of the sale will insist upon his membership of the society which it would not be unreasonable to assume, will be granted by the Society in the ordinary course unless there are cogent and relevant reasons for not doing so. The fact that at the time of auction-sale the purchaser was not a member of the Society would not in law affect the saleability or prior attachment of the property in execution of the valid decree.23. The judgement-debtor has a valid decree against him. Ordinarily he has to discharge his liability under the decree. He can pay the decretal amount straightway or suffer his property to be attached and sold in execution of the decree. As an honest debtor the liability under the decree has to be discharged. Here the Society is not objecting to the attachment and sale of the property, but the judgment-debtor is. We have seen there is no absolute prohibition against transfer of a right to occupation of the flat or even to transfer a share. The auction-purchaser is presumed to know the limitations under which he has purchased the right to occupy the flat in Court auction. If ultimately the Society turns down his application for membership (which of course cannot be done except for valid reasons) it is up to him to take such course of action as available under the law. Such a remote contingency, per se, will not make the particular right of the ,judgment-debtor in the flat non-attachable orhave held that the right to occupation of a flat is property both attachable and saleable. Specific non-inclusion of a particular species of property under Section 60 is, therefore, not of any consequence if it is saleable. With regard to a flat owners right to dispose of his rights, it is pointed out that "the flat owner may, in the words of a leading French Commentator "sell, donate, leave by will, let or hypothecate" his right. The rights are regulated by statutes in the Continent. The German Statute, for example, allows the flat owners right to dispose of his property to be made subject to the consent of other flat owners but such consent may be refused only "for a very important reason" (Article 12 (1), (2)) and the statute gives the aggrievedeasy access to the court if a violation of this provision is alleged (see ibid page 39). Thus the trend is towards recognition of these rights. | 0 | 5,099 | 1,476 | ### 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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the Act unlike in the case of a transfer being void under Section 47 (3). There is no impediment to ratification of the assignment by the Committee particularly in view of the legal position arising out of the conjoint, effect of Section 29, Rule 24 and bye-law 9. Section 29 read with R. 24 shows that there is no prohibition as such against transfer of a share to a member or even to a non member if he consents to be a member and makes an application for membership by purchasing five shares as provided under bye-law 9. Reading the aforesaid provisions there is no reason to think that there is any question of refusal of membership of the Society to a non-member if he is qualified otherwise and makes an appropriate application in which case the transfer of shares will be operative and thus the assignment of the right to occupation will hold good. Further it is significant that under Section 146 (a) of the Act, contravention of sub-sec.(2) of Section 47 is punishable under Section 147 of the Act. Contravention of any bye-law is, however, no offence.We therefore, unhesitatingly come to the conclusion that this species of property, namely the right to occupy a flat of this type, assumes significant importance and acquires under the law a stamp of transferability in furtherance of the interest of commerce. We have seen no fetter under any of the legal provisions against such a conclusion. The attachment and the sale of the property in this case in execution of the decree are valid under the law.19. Multi-storeyed ownership flats on co-operative basis in cities and big towns have come to stay because of dire necessity and are in the process of rapid expansion for manifold reasons. Some of these are: ever growing needs of an urban community necessitating its accommodation in proximity to cities and towns, lack of availability of land in urban area, rise in price of building material, restrictions under various rent legislations, disincentive generated by tax laws and other laws for embarking upon housing construction on individual basis, security of possession depending upon fulfilment of the conditions of membership of a society which are none too irksome. In absence of clear and unambiguous legal provisions to the contrary, it will not be in public interest nor in the interest of commerce to impose a ban on saleability of these flats by a tortuous process of reasoning. The prohibition, if intended by the legislature, must be in express terms. We have failed to find one.20. The phenomenon of ownership of flats as contradistinguished from personal houses has been in vogue in England as well as in the European Continent. Ownership rights over separate parts of a building are mentioned in Coke on Littleton and such "super-imposed free holds" have existed in England in various places for a long time (see International and Comparative Law Quarterly Volume VII, January 1958, pages 36-37).21. With regard to a flat owners right to dispose of his rights, it is pointed out that "the flat owner may, in the words of a leading French Commentator "sell, donate, leave by will, let or hypothecate" his right. The rights are regulated by statutes in the Continent. The German Statute, for example, allows the flat owners right to dispose of his property to be made subject to the consent of other flat owners but such consent may be refused only "for a very important reason" (Article 12 (1), (2)) and the statute gives the aggrieved flat-owner easy access to the court if a violation of this provision is alleged (see ibid page 39). Thus the trend is towards recognition of these rights.22. Now that attachment and sale have been held to be valid, it will be for the auction-purchaser first to obtain membership of the society and the Court before confirmation of the sale will insist upon his membership of the society which it would not be unreasonable to assume, will be granted by the Society in the ordinary course unless there are cogent and relevant reasons for not doing so. The fact that at the time of auction-sale the purchaser was not a member of the Society would not in law affect the saleability or prior attachment of the property in execution of the valid decree.23. The judgement-debtor has a valid decree against him. Ordinarily he has to discharge his liability under the decree. He can pay the decretal amount straightway or suffer his property to be attached and sold in execution of the decree. As an honest debtor the liability under the decree has to be discharged. Here the Society is not objecting to the attachment and sale of the property, but the judgment-debtor is. We have seen there is no absolute prohibition against transfer of a right to occupation of the flat or even to transfer a share. The auction-purchaser is presumed to know the limitations under which he has purchased the right to occupy the flat in Court auction. If ultimately the Society turns down his application for membership (which of course cannot be done except for valid reasons) it is up to him to take such course of action as available under the law. Such a remote contingency, per se, will not make the particular right of the ,judgment-debtor in the flat non-attachable or non-saleable.24. It is contended by Mr. Chatterjee that Section. 60, Civil Procedure Code, does not specify that this species of property is liable to attachment. The argument, however, fails to take note of Sec. 60 being not exhaustive as such. It refers also to any other saleable property, movable or immovable, whether the same be held in the name of the judgment-debtor or by another person on his behalf. We have held that the right to occupation of a flat is property both attachable and saleable. Specific non-inclusion of a particular species of property under Section 60 is, therefore, not of any consequence if it is saleable otherwise.
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admitted that the flat is owned by the Society and the judgment-debtor has a right or interest to occupy thehave already pointed out the difference in language between Section 29 and Section 31 and also made reference to S. 47 (1) (b) in that connection. There is nothing in the language of Section 31 to indicate that the right to occupation which is the right to be sold in auction is not attachable in execution of the decree. There is nothing in Section 31 to even remotely include a prohibition against attachment or sale of the aforesaid right to occupation of the flat. Once Section 31 is out of the way, we are left with Section 29 wherein we do not find even a provision at prior consent for transfer of share or interest in such property. The only restrictions under S. 29 (2) are that the member may not transfer his interest in the property prior to one year and the transfer is made to an existing member of the Society or to a person whose application for membership has been accepted by the Society. It is true that bye-law 71D says that a member to whom a tenement is allotted shall not assign or underlet, vacate or part with the possession of the tenement or any part thereof without the previous consent in writing of the Managing Committee, but there is nothing to show that contravention of this bye-law makes the assignment void under the Act unlike in the case of a transfer being void under Section 47 (3). There is no impediment to ratification of the assignment by the Committee particularly in view of the legal position arising out of the conjoint, effect of Section 29, Rule 24 and bye-law 9. Section 29 read with R. 24 shows that there is no prohibition as such against transfer of a share to a member or even to a non member if he consents to be a member and makes an application for membership by purchasing five shares as provided under bye-law 9. Reading the aforesaid provisions there is no reason to think that there is any question of refusal of membership of the Society to a non-member if he is qualified otherwise and makes an appropriate application in which case the transfer of shares will be operative and thus the assignment of the right to occupation will hold good. Further it is significant that under Section 146 (a) of the Act, contravention of sub-sec.(2) of Section 47 is punishable under Section 147 of the Act. Contravention of any bye-law is, however, no offence.We therefore, unhesitatingly come to the conclusion that this species of property, namely the right to occupy a flat of this type, assumes significant importance and acquires under the law a stamp of transferability in furtherance of the interest of commerce. We have seen no fetter under any of the legal provisions against such a conclusion. The attachment and the sale of the property in this case in execution of the decree are valid under the law.In absence of clear and unambiguous legal provisions to the contrary, it will not be in public interest nor in the interest of commerce to impose a ban on saleability of these flats by a tortuous process of reasoning. The prohibition, if intended by the legislature, must be in express terms. We have failed to find one.Now that attachment and sale have been held to be valid, it will be for the auction-purchaser first to obtain membership of the society and the Court before confirmation of the sale will insist upon his membership of the society which it would not be unreasonable to assume, will be granted by the Society in the ordinary course unless there are cogent and relevant reasons for not doing so. The fact that at the time of auction-sale the purchaser was not a member of the Society would not in law affect the saleability or prior attachment of the property in execution of the valid decree.23. The judgement-debtor has a valid decree against him. Ordinarily he has to discharge his liability under the decree. He can pay the decretal amount straightway or suffer his property to be attached and sold in execution of the decree. As an honest debtor the liability under the decree has to be discharged. Here the Society is not objecting to the attachment and sale of the property, but the judgment-debtor is. We have seen there is no absolute prohibition against transfer of a right to occupation of the flat or even to transfer a share. The auction-purchaser is presumed to know the limitations under which he has purchased the right to occupy the flat in Court auction. If ultimately the Society turns down his application for membership (which of course cannot be done except for valid reasons) it is up to him to take such course of action as available under the law. Such a remote contingency, per se, will not make the particular right of the ,judgment-debtor in the flat non-attachable orhave held that the right to occupation of a flat is property both attachable and saleable. Specific non-inclusion of a particular species of property under Section 60 is, therefore, not of any consequence if it is saleable. With regard to a flat owners right to dispose of his rights, it is pointed out that "the flat owner may, in the words of a leading French Commentator "sell, donate, leave by will, let or hypothecate" his right. The rights are regulated by statutes in the Continent. The German Statute, for example, allows the flat owners right to dispose of his property to be made subject to the consent of other flat owners but such consent may be refused only "for a very important reason" (Article 12 (1), (2)) and the statute gives the aggrievedeasy access to the court if a violation of this provision is alleged (see ibid page 39). Thus the trend is towards recognition of these rights.
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Sheikh Hafeez Vs. State of Bihar | were in the house at the time he had come to the Paan shop, including his uncles, Bhagirath Singh and Ram Chandra Singh, P.W. 8.6. On reading this evidence it will be clear that the alone went to the Paan shop and his uncle and others remained in the house. But in the next passage he gives slightly different story he states :"Besides them Laldeo Sharma was standing at a distance of 4 yards from the Pan Shop. He is my cousin. Raja Rana Singh was with Laldeo Sharma. Raja Rana Rama Singh is not related to me but lives with us in that house. Ram Chandra Singh was standing at a distance of about 4 feet Laldeo Sharma."7. He further states that Bhuneshwar Singh and Laldeo Sharma had chased the assailant and he came to know that they caught the assailant near taxi stand immediately after the occurrence. It was suggested to him in cross-examination that there was a Marpit between two groups of persons and that his uncle had gone to the spot armed Lathi. It was further suggested to him that he had some enmity with the accused Hafeez. The story he tells sounds very improbable on the face of it. First, the reason for picking up quarrel seems rather strange, and secondly it seems quite strange that the appellant Hafeez remained standing there even after Ramdeo had been stabbed, and Mohd. Ramzan had run away. If he had taken the part ascribed to him we would have expected him to have run away and be chased or arrested by the bystanders.8. The story that Ramzan ran away and was chased is supported by P.W. 3. Turam Bari, a Havidar of Police who was on night duty in the locality at about 11 p.m. He states that both Bhuneshwar Singh and Laldeo Sharma had pointed out to him Ramzan who was sitting in a rickshaw near the taxi stand and told him that he had stabbed one man and was escaping. Turam Bari thereupon arrested him and took him to the Thana.9. Now Yar Ali, who is the Paan shopkeeper, tells a different story. He says that four of five bus conductors, including Ramdeo Sharma, had come to take Paan and they began to quarrel among themselves. A car drove up to the shop and the driver of the car got down and the man Ramdeo Sharma, but he could not say who stabbed Ramdeo Sharma. In cross-examination he states that there was scuffling between the driver of the car and Ramdeo and then there was exchange of blows between them, the conductor Ramdeo Sharma went to his house and called many persons from his house; many persons began to brandish Lathis and many people had assembled there. He further states that there was Marpit between the parties.10. The main point in his story is that there was a quarrel, exchange of blows and Marpit between two parties. There is no explanation why the public prosecutor did not choose to ask for permission to cross-examine this witness.11. Laldeo Sharma, P.W. 6, who is alleged to be an eye-witness described the incident thus :"Near a Paan shop close to Lalpur Chock 2 persons were scuffling. A third man came and caught hold of one of the 2 who were scuffling. This accused Hafiz had caught hold Ramdeo Sharma(points to the accused Hafiz). The other man gave a knife blow to Ramdeo Sharma and went to a house by the side of the Pan shop and closed the door from inside."12. Even if his story is accepted his would only support the case of the defence that Hafiz had actually intervened to stop the two person from scuffling with each other. It was put to him, and it is proved by Sub-Inspector B. D. Sahay, P.W. 11, that P.W. 6 had not named the accused Ramzan and Hafeez before the police. P.W. 6, however, says that Ramchandra Singh and Raja Rana Ram Singh were present there but they had come on hearing the Hulla.13. It is extraordinary that although the police Havildar, P.W. 3, says that Laldeo Sharma came to him and pointed out Ramzan, in his evidence not a word is said about the chase.The version of Ramchandra Singh, P.W. 3, is this :"I saw Ramdeo who had gone to bring Pan from the Pan shop. He was caught be accused Hafiz and accused Ramzan stabbed him with Chhura in his stomach. I took Ramdeo to the Sadar Hospital along with Bhagirath and others on some private Taxi ...In cross-examination it was brought out that he had neither named Hafeez not Ramzan before the police. He contradicts Ramdeo, P.W. 2, by stating that he was not in the house before the occurrence but was in some hotel with Ramdeo and that he and Ramdeo both came out of the hotel together. It is difficult to say which version is correct. It seems to us that he was in the house and it is only after the incident was over that he came and made up the whole story.14. Similarly Rana Raja Singh, P.W. 10, contradicts Ramdeo, P.W. 2, by stating that he did not know Ramdeo Sharma from before the date of the occurrence. It will be recalled that Ramdeo says that Rana Raja Singh was staying with them in the house. His evidence must be discarded.15. It seems to us that the prosecution has not come up with the true story. The reason given for the start of the quarrel seems strange and nobody support that reason except P.W. 2. On this evidence it cannot be said that the suggestion of the appellant that he intervened in order to separate Ramdeo and Ramzan from fighting with each other is not probable. At any rate is seems to us that the prosecution has not given a true version of the origin of the fight or the fight itself and the appellant must be given the benefit of doubt. | 1[ds]3. We have gone through the evidence led in the case and we find that neither the Additional judicial Commissioner nor the High Court have looked at the evidence carefully and they believed the witnesses who should not have been believed. They failed to notice material contradictions between the story as told by various alleged eye-witnesses. This has led to serious miscarriage of justice.On reading this evidence it will be clear that the alone went to the Paan shop and his uncle and others remained in the house. But in the next passage he gives slightly different story he statesthem Laldeo Sharma was standing at a distance of 4 yards from the Pan Shop. He is my cousin. Raja Rana Singh was with Laldeo Sharma. Raja Rana Rama Singh is not related to me but lives with us in that house. Ram Chandra Singh was standing at a distance of about 4 feet Laldeostory he tells sounds very improbable on the face of it. First, the reason for picking up quarrel seems rather strange, and secondly it seems quite strange that the appellant Hafeez remained standing there even after Ramdeo had been stabbed, and Mohd. Ramzan had run away. If he had taken the part ascribed to him we would have expected him to have run away and be chased or arrested by the bystanders.The main point in his story is that there was a quarrel, exchange of blows and Marpit between two parties. There is no explanation why the public prosecutor did not choose to ask for permission to cross-examine this witness.Even if his story is accepted his would only support the case of the defence that Hafiz had actually intervened to stop the two person from scuffling with each other. It was put to him, and it is proved by Sub-Inspector B. D. Sahay, P.W. 11, that P.W. 6 had not named the accused Ramzan and Hafeez before the police. P.W. 6, however, says that Ramchandra Singh and Raja Rana Ram Singh were present there but they had come on hearing the Hulla.13. It is extraordinary that although the police Havildar, P.W. 3, says that Laldeo Sharma came to him and pointed out Ramzan, in his evidence not a word is said about the chase.. It seems to us that the prosecution has not come up with the true story. The reason given for the start of the quarrel seems strange and nobody support that reason except P.W. 2. On this evidence it cannot be said that the suggestion of the appellant that he intervened in order to separate Ramdeo and Ramzan from fighting with each other is not probable. At any rate is seems to us that the prosecution has not given a true version of the origin of the fight or the fight itself and the appellant must be given the benefit of doubt. | 1 | 1,641 | 520 | ### 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:
were in the house at the time he had come to the Paan shop, including his uncles, Bhagirath Singh and Ram Chandra Singh, P.W. 8.6. On reading this evidence it will be clear that the alone went to the Paan shop and his uncle and others remained in the house. But in the next passage he gives slightly different story he states :"Besides them Laldeo Sharma was standing at a distance of 4 yards from the Pan Shop. He is my cousin. Raja Rana Singh was with Laldeo Sharma. Raja Rana Rama Singh is not related to me but lives with us in that house. Ram Chandra Singh was standing at a distance of about 4 feet Laldeo Sharma."7. He further states that Bhuneshwar Singh and Laldeo Sharma had chased the assailant and he came to know that they caught the assailant near taxi stand immediately after the occurrence. It was suggested to him in cross-examination that there was a Marpit between two groups of persons and that his uncle had gone to the spot armed Lathi. It was further suggested to him that he had some enmity with the accused Hafeez. The story he tells sounds very improbable on the face of it. First, the reason for picking up quarrel seems rather strange, and secondly it seems quite strange that the appellant Hafeez remained standing there even after Ramdeo had been stabbed, and Mohd. Ramzan had run away. If he had taken the part ascribed to him we would have expected him to have run away and be chased or arrested by the bystanders.8. The story that Ramzan ran away and was chased is supported by P.W. 3. Turam Bari, a Havidar of Police who was on night duty in the locality at about 11 p.m. He states that both Bhuneshwar Singh and Laldeo Sharma had pointed out to him Ramzan who was sitting in a rickshaw near the taxi stand and told him that he had stabbed one man and was escaping. Turam Bari thereupon arrested him and took him to the Thana.9. Now Yar Ali, who is the Paan shopkeeper, tells a different story. He says that four of five bus conductors, including Ramdeo Sharma, had come to take Paan and they began to quarrel among themselves. A car drove up to the shop and the driver of the car got down and the man Ramdeo Sharma, but he could not say who stabbed Ramdeo Sharma. In cross-examination he states that there was scuffling between the driver of the car and Ramdeo and then there was exchange of blows between them, the conductor Ramdeo Sharma went to his house and called many persons from his house; many persons began to brandish Lathis and many people had assembled there. He further states that there was Marpit between the parties.10. The main point in his story is that there was a quarrel, exchange of blows and Marpit between two parties. There is no explanation why the public prosecutor did not choose to ask for permission to cross-examine this witness.11. Laldeo Sharma, P.W. 6, who is alleged to be an eye-witness described the incident thus :"Near a Paan shop close to Lalpur Chock 2 persons were scuffling. A third man came and caught hold of one of the 2 who were scuffling. This accused Hafiz had caught hold Ramdeo Sharma(points to the accused Hafiz). The other man gave a knife blow to Ramdeo Sharma and went to a house by the side of the Pan shop and closed the door from inside."12. Even if his story is accepted his would only support the case of the defence that Hafiz had actually intervened to stop the two person from scuffling with each other. It was put to him, and it is proved by Sub-Inspector B. D. Sahay, P.W. 11, that P.W. 6 had not named the accused Ramzan and Hafeez before the police. P.W. 6, however, says that Ramchandra Singh and Raja Rana Ram Singh were present there but they had come on hearing the Hulla.13. It is extraordinary that although the police Havildar, P.W. 3, says that Laldeo Sharma came to him and pointed out Ramzan, in his evidence not a word is said about the chase.The version of Ramchandra Singh, P.W. 3, is this :"I saw Ramdeo who had gone to bring Pan from the Pan shop. He was caught be accused Hafiz and accused Ramzan stabbed him with Chhura in his stomach. I took Ramdeo to the Sadar Hospital along with Bhagirath and others on some private Taxi ...In cross-examination it was brought out that he had neither named Hafeez not Ramzan before the police. He contradicts Ramdeo, P.W. 2, by stating that he was not in the house before the occurrence but was in some hotel with Ramdeo and that he and Ramdeo both came out of the hotel together. It is difficult to say which version is correct. It seems to us that he was in the house and it is only after the incident was over that he came and made up the whole story.14. Similarly Rana Raja Singh, P.W. 10, contradicts Ramdeo, P.W. 2, by stating that he did not know Ramdeo Sharma from before the date of the occurrence. It will be recalled that Ramdeo says that Rana Raja Singh was staying with them in the house. His evidence must be discarded.15. It seems to us that the prosecution has not come up with the true story. The reason given for the start of the quarrel seems strange and nobody support that reason except P.W. 2. On this evidence it cannot be said that the suggestion of the appellant that he intervened in order to separate Ramdeo and Ramzan from fighting with each other is not probable. At any rate is seems to us that the prosecution has not given a true version of the origin of the fight or the fight itself and the appellant must be given the benefit of doubt.
### Response:
1
### Explanation:
3. We have gone through the evidence led in the case and we find that neither the Additional judicial Commissioner nor the High Court have looked at the evidence carefully and they believed the witnesses who should not have been believed. They failed to notice material contradictions between the story as told by various alleged eye-witnesses. This has led to serious miscarriage of justice.On reading this evidence it will be clear that the alone went to the Paan shop and his uncle and others remained in the house. But in the next passage he gives slightly different story he statesthem Laldeo Sharma was standing at a distance of 4 yards from the Pan Shop. He is my cousin. Raja Rana Singh was with Laldeo Sharma. Raja Rana Rama Singh is not related to me but lives with us in that house. Ram Chandra Singh was standing at a distance of about 4 feet Laldeostory he tells sounds very improbable on the face of it. First, the reason for picking up quarrel seems rather strange, and secondly it seems quite strange that the appellant Hafeez remained standing there even after Ramdeo had been stabbed, and Mohd. Ramzan had run away. If he had taken the part ascribed to him we would have expected him to have run away and be chased or arrested by the bystanders.The main point in his story is that there was a quarrel, exchange of blows and Marpit between two parties. There is no explanation why the public prosecutor did not choose to ask for permission to cross-examine this witness.Even if his story is accepted his would only support the case of the defence that Hafiz had actually intervened to stop the two person from scuffling with each other. It was put to him, and it is proved by Sub-Inspector B. D. Sahay, P.W. 11, that P.W. 6 had not named the accused Ramzan and Hafeez before the police. P.W. 6, however, says that Ramchandra Singh and Raja Rana Ram Singh were present there but they had come on hearing the Hulla.13. It is extraordinary that although the police Havildar, P.W. 3, says that Laldeo Sharma came to him and pointed out Ramzan, in his evidence not a word is said about the chase.. It seems to us that the prosecution has not come up with the true story. The reason given for the start of the quarrel seems strange and nobody support that reason except P.W. 2. On this evidence it cannot be said that the suggestion of the appellant that he intervened in order to separate Ramdeo and Ramzan from fighting with each other is not probable. At any rate is seems to us that the prosecution has not given a true version of the origin of the fight or the fight itself and the appellant must be given the benefit of doubt.
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Uttar Pradesh Forest Corporation Lucknow & Ors Vs. Vijay Kumar Yadav & Anr | M.R. SHAH, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 20.02.2019 passed by the High Court of Judicature at Allahabad in Writ Appeal No.54718 of 2005, Uttar Pradesh Forest Corporation Lucknow and others have preferred the present appeal. 2. At the outset, it is required to be noted that vide order dated 03.07.2019, this Court issued notice limited to the extent as to whether the High Court ought to have maintained the punishment order for recovery of Rs.2,46,922.56, which was also held to be proved by the Enquiry Officer. 3. We have heard the learned counsel for the respective parties. 4. At the outset, it is required to be noted that in so far as the charge of causing loss to the extent of Rs.2,46,922.56, it was held to be proved by the Enquiry Officer. However, there was disagreement on the part of the Disciplinary Authority so far as other charges, which were held to be not proved by the Enquiry Officer and without issuing any notice on the said disagreement, the Disciplinary Authority proceeded further and passed the punishment order, which was held to be bad in law and against the principles of natural justice. Therefore, once the charge of causing loss to the extent of Rs.2,46,922.56 was held to be proved by the Enquiry Officer, the High Court ought to have maintained the punishment order for recovery of Rs.2,46,922.56. | 1[ds]4. At the outset, it is required to be noted that in so far as the charge of causing loss to the extent of Rs.2,46,922.56, it was held to be proved by the Enquiry Officer. However, there was disagreement on the part of the Disciplinary Authority so far as other charges, which were held to be not proved by the Enquiry Officer and without issuing any notice on the said disagreement, the Disciplinary Authority proceeded further and passed the punishment order, which was held to be bad in law and against the principles of natural justice. Therefore, once the charge of causing loss to the extent of Rs.2,46,922.56 was held to be proved by the Enquiry Officer, the High Court ought to have maintained the punishment order for recovery of Rs.2,46,922.56. | 1 | 261 | 147 | ### 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:
M.R. SHAH, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 20.02.2019 passed by the High Court of Judicature at Allahabad in Writ Appeal No.54718 of 2005, Uttar Pradesh Forest Corporation Lucknow and others have preferred the present appeal. 2. At the outset, it is required to be noted that vide order dated 03.07.2019, this Court issued notice limited to the extent as to whether the High Court ought to have maintained the punishment order for recovery of Rs.2,46,922.56, which was also held to be proved by the Enquiry Officer. 3. We have heard the learned counsel for the respective parties. 4. At the outset, it is required to be noted that in so far as the charge of causing loss to the extent of Rs.2,46,922.56, it was held to be proved by the Enquiry Officer. However, there was disagreement on the part of the Disciplinary Authority so far as other charges, which were held to be not proved by the Enquiry Officer and without issuing any notice on the said disagreement, the Disciplinary Authority proceeded further and passed the punishment order, which was held to be bad in law and against the principles of natural justice. Therefore, once the charge of causing loss to the extent of Rs.2,46,922.56 was held to be proved by the Enquiry Officer, the High Court ought to have maintained the punishment order for recovery of Rs.2,46,922.56.
### Response:
1
### Explanation:
4. At the outset, it is required to be noted that in so far as the charge of causing loss to the extent of Rs.2,46,922.56, it was held to be proved by the Enquiry Officer. However, there was disagreement on the part of the Disciplinary Authority so far as other charges, which were held to be not proved by the Enquiry Officer and without issuing any notice on the said disagreement, the Disciplinary Authority proceeded further and passed the punishment order, which was held to be bad in law and against the principles of natural justice. Therefore, once the charge of causing loss to the extent of Rs.2,46,922.56 was held to be proved by the Enquiry Officer, the High Court ought to have maintained the punishment order for recovery of Rs.2,46,922.56.
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Surjeet Singh Sahni Vs. State of U.P. and Ors | per Resolution in 102nd meeting of NOIDA Board held on 07.01.1998. Though the said writ petition was filed after a period of 11 years from the date of execution of the Sale Deed and though the said writ petition was barred by delay and latches, the High Court entertained the said writ petition, however, disposed of the said writ petition vide order dated 07.04.2017 directing the NOIDA to decide the representation of the petitioner expeditiously and preferably within a period of six weeks. 2.3 That thereafter vide order dated 23.05.2017, the NOIDA rejected the said representation. Feeling aggrieved and dissatisfied with the order passed by the NOIDA dated 23.05.2017 rejecting the representation, the petitioner filed Writ Petition No.40336 of 2017 by which the petitioner again prayed to allot 10% plot to him as provided under Clause 12 of the Sale Deed dated 19.09.2001 and as per the Resolution passed in 102nd meeting of NOIDA Board on 07.01.1998. The High Court by the impugned judgment and order has dismissed the said writ petition inter alia holding firstly, that Writ Petition arising out of contract between parties is not maintainable and petitioner should have filed a Suit for specific performance; secondly, Writ Petition has been filed after a delay of 16 years and delay is fatal for challenge to acquisition or for any claim arising out of it; thirdly, Clause 12 of Sale Deed provided for allotment of land to original Khatedar and as the petitioner has purchased land in 1970 therefore its clear that petitioner is not original agriculturist; and the establishment of NOIDA in 1976 shall have no bearing on the matter. 2.4 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court dismissing the writ petition, the original writ petitioner has preferred the present special leave petition. 3. We have heard Shri Dhruv Mehta, learned Senior Advocate appearing on behalf of the petitioner at length. We have also gone through the impugned judgment and order passed by the High Court. 4. At the outset, it is required to be noted that by way of writ petition under Article 226 of the Constitution of India as such the petitioner prayed for a specific performance of Clause 12 of the Sale Deed dated 19.09.2001. For the first time, the petitioner made a representation for allotment of 10% plot as per Clause 12 of the Sale Deed dated 19.09.2001 in the year 2010, i.e., after a period of 10 years from the date of execution of the Sale Deed. Therefore, as such if the suit would have been filed for specific performance, the same would have been barred by limitation. Despite the above, the petitioner filed a writ petition before the High Court and as observed hereinabove prayed for specific performance of Clause 12 of the Sale Deed dated 19.09.2001 being Writ Petition No.37443 of 2011, which was also filed after a period of 11 years from the date of execution of the Sale Deed. Therefore, as such when the earlier writ petition was filed in the year 2011 which was also barred by delay and latches, the High Court ought not to have entertained the same. Instead, the High Court entertained the said writ petition and directed the NOIDA to decide the representation of the petitioner, which as such was made after a period of 10 years, expeditiously and it gave the fresh blood to the litigation, which otherwise was barred by delay and latches. The High Court by passing the order dated 07.04.2017 as such did not realise and/or appreciated that the writ petition itself was required to be dismissed on the ground of delay and latches as the same was filed after a period of 11 years from the date of execution of the Sale Deed under which the right was claimed. We have come across number of such orders passed by the High Courts directing the authorities to decide the representation though the representations are made belatedly and thereafter when a decision is taken on such representation, thereafter it can be said on behalf of the petitioner that the fresh cause of action has arisen on rejection of the representation. Therefore, when such orders are passed by the High Courts either relegating the petitioner to make a representation and/or directing the appropriate authority to decide the representation, the High Courts have to consider whether the writ petition is filed belatedly and/or the same is barred by latches and/or not, so that in future the person who has approached belatedly may not contend that the fresh cause of action has arisen on rejection of the representation. Even in a case where earlier representation is rejected, the High Court shall decide the matter on merits. 5. As observed by this Court in catena of decisions, mere representation does not extend the period of limitation and the aggrieved person has to approach the Court expeditiously and within reasonable time. If it is found that the writ petitioner is guilty of delay and latches, the High Court should dismiss it at the threshold and ought not to dispose of the writ petition by relegating the writ petitioner to file a representation and/or directing the authority to decide the representation, once it is found that the original writ petitioner is guilty of delay and latches. Such order shall not give an opportunity to the petitioner to thereafter contend that rejection of the representation subsequently has given a fresh cause of action. 6. Even otherwise on merits also, we are in complete agreement with the view taken by the High Court. The High Court has rightly refused to grant any relief which as such was in the form of specific performance of the contract. No writ under Article 226 of the Constitution of India shall be maintainable and/or entertainable for specific performance of the contract and that too after a period of 10 years by which time even the suit for specific performance would have been barred by limitation. | 0[ds]4. At the outset, it is required to be noted that by way of writ petition under Article 226 of the Constitution of India as such the petitioner prayed for a specific performance of Clause 12 of the Sale Deed dated 19.09.2001. For the first time, the petitioner made a representation for allotment of 10% plot as per Clause 12 of the Sale Deed dated 19.09.2001 in the year 2010, i.e., after a period of 10 years from the date of execution of the Sale Deed. Therefore, as such if the suit would have been filed for specific performance, the same would have been barred by limitation. Despite the above, the petitioner filed a writ petition before the High Court and as observed hereinabove prayed for specific performance of Clause 12 of the Sale Deed dated 19.09.2001 being Writ Petition No.37443 of 2011, which was also filed after a period of 11 years from the date of execution of the Sale Deed. Therefore, as such when the earlier writ petition was filed in the year 2011 which was also barred by delay and latches, the High Court ought not to have entertained the same. Instead, the High Court entertained the said writ petition and directed the NOIDA to decide the representation of the petitioner, which as such was made after a period of 10 years, expeditiously and it gave the fresh blood to the litigation, which otherwise was barred by delay and latches. The High Court by passing the order dated 07.04.2017 as such did not realise and/or appreciated that the writ petition itself was required to be dismissed on the ground of delay and latches as the same was filed after a period of 11 years from the date of execution of the Sale Deed under which the right was claimed. We have come across number of such orders passed by the High Courts directing the authorities to decide the representation though the representations are made belatedly and thereafter when a decision is taken on such representation, thereafter it can be said on behalf of the petitioner that the fresh cause of action has arisen on rejection of the representation. Therefore, when such orders are passed by the High Courts either relegating the petitioner to make a representation and/or directing the appropriate authority to decide the representation, the High Courts have to consider whether the writ petition is filed belatedly and/or the same is barred by latches and/or not, so that in future the person who has approached belatedly may not contend that the fresh cause of action has arisen on rejection of the representation. Even in a case where earlier representation is rejected, the High Court shall decide the matter on merits.5. As observed by this Court in catena of decisions, mere representation does not extend the period of limitation and the aggrieved person has to approach the Court expeditiously and within reasonable time. If it is found that the writ petitioner is guilty of delay and latches, the High Court should dismiss it at the threshold and ought not to dispose of the writ petition by relegating the writ petitioner to file a representation and/or directing the authority to decide the representation, once it is found that the original writ petitioner is guilty of delay and latches. Such order shall not give an opportunity to the petitioner to thereafter contend that rejection of the representation subsequently has given a fresh cause of action.6. Even otherwise on merits also, we are in complete agreement with the view taken by the High Court. The High Court has rightly refused to grant any relief which as such was in the form of specific performance of the contract. No writ under Article 226 of the Constitution of India shall be maintainable and/or entertainable for specific performance of the contract and that too after a period of 10 years by which time even the suit for specific performance would have been barred by limitation. | 0 | 1,383 | 707 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
per Resolution in 102nd meeting of NOIDA Board held on 07.01.1998. Though the said writ petition was filed after a period of 11 years from the date of execution of the Sale Deed and though the said writ petition was barred by delay and latches, the High Court entertained the said writ petition, however, disposed of the said writ petition vide order dated 07.04.2017 directing the NOIDA to decide the representation of the petitioner expeditiously and preferably within a period of six weeks. 2.3 That thereafter vide order dated 23.05.2017, the NOIDA rejected the said representation. Feeling aggrieved and dissatisfied with the order passed by the NOIDA dated 23.05.2017 rejecting the representation, the petitioner filed Writ Petition No.40336 of 2017 by which the petitioner again prayed to allot 10% plot to him as provided under Clause 12 of the Sale Deed dated 19.09.2001 and as per the Resolution passed in 102nd meeting of NOIDA Board on 07.01.1998. The High Court by the impugned judgment and order has dismissed the said writ petition inter alia holding firstly, that Writ Petition arising out of contract between parties is not maintainable and petitioner should have filed a Suit for specific performance; secondly, Writ Petition has been filed after a delay of 16 years and delay is fatal for challenge to acquisition or for any claim arising out of it; thirdly, Clause 12 of Sale Deed provided for allotment of land to original Khatedar and as the petitioner has purchased land in 1970 therefore its clear that petitioner is not original agriculturist; and the establishment of NOIDA in 1976 shall have no bearing on the matter. 2.4 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court dismissing the writ petition, the original writ petitioner has preferred the present special leave petition. 3. We have heard Shri Dhruv Mehta, learned Senior Advocate appearing on behalf of the petitioner at length. We have also gone through the impugned judgment and order passed by the High Court. 4. At the outset, it is required to be noted that by way of writ petition under Article 226 of the Constitution of India as such the petitioner prayed for a specific performance of Clause 12 of the Sale Deed dated 19.09.2001. For the first time, the petitioner made a representation for allotment of 10% plot as per Clause 12 of the Sale Deed dated 19.09.2001 in the year 2010, i.e., after a period of 10 years from the date of execution of the Sale Deed. Therefore, as such if the suit would have been filed for specific performance, the same would have been barred by limitation. Despite the above, the petitioner filed a writ petition before the High Court and as observed hereinabove prayed for specific performance of Clause 12 of the Sale Deed dated 19.09.2001 being Writ Petition No.37443 of 2011, which was also filed after a period of 11 years from the date of execution of the Sale Deed. Therefore, as such when the earlier writ petition was filed in the year 2011 which was also barred by delay and latches, the High Court ought not to have entertained the same. Instead, the High Court entertained the said writ petition and directed the NOIDA to decide the representation of the petitioner, which as such was made after a period of 10 years, expeditiously and it gave the fresh blood to the litigation, which otherwise was barred by delay and latches. The High Court by passing the order dated 07.04.2017 as such did not realise and/or appreciated that the writ petition itself was required to be dismissed on the ground of delay and latches as the same was filed after a period of 11 years from the date of execution of the Sale Deed under which the right was claimed. We have come across number of such orders passed by the High Courts directing the authorities to decide the representation though the representations are made belatedly and thereafter when a decision is taken on such representation, thereafter it can be said on behalf of the petitioner that the fresh cause of action has arisen on rejection of the representation. Therefore, when such orders are passed by the High Courts either relegating the petitioner to make a representation and/or directing the appropriate authority to decide the representation, the High Courts have to consider whether the writ petition is filed belatedly and/or the same is barred by latches and/or not, so that in future the person who has approached belatedly may not contend that the fresh cause of action has arisen on rejection of the representation. Even in a case where earlier representation is rejected, the High Court shall decide the matter on merits. 5. As observed by this Court in catena of decisions, mere representation does not extend the period of limitation and the aggrieved person has to approach the Court expeditiously and within reasonable time. If it is found that the writ petitioner is guilty of delay and latches, the High Court should dismiss it at the threshold and ought not to dispose of the writ petition by relegating the writ petitioner to file a representation and/or directing the authority to decide the representation, once it is found that the original writ petitioner is guilty of delay and latches. Such order shall not give an opportunity to the petitioner to thereafter contend that rejection of the representation subsequently has given a fresh cause of action. 6. Even otherwise on merits also, we are in complete agreement with the view taken by the High Court. The High Court has rightly refused to grant any relief which as such was in the form of specific performance of the contract. No writ under Article 226 of the Constitution of India shall be maintainable and/or entertainable for specific performance of the contract and that too after a period of 10 years by which time even the suit for specific performance would have been barred by limitation.
### Response:
0
### Explanation:
4. At the outset, it is required to be noted that by way of writ petition under Article 226 of the Constitution of India as such the petitioner prayed for a specific performance of Clause 12 of the Sale Deed dated 19.09.2001. For the first time, the petitioner made a representation for allotment of 10% plot as per Clause 12 of the Sale Deed dated 19.09.2001 in the year 2010, i.e., after a period of 10 years from the date of execution of the Sale Deed. Therefore, as such if the suit would have been filed for specific performance, the same would have been barred by limitation. Despite the above, the petitioner filed a writ petition before the High Court and as observed hereinabove prayed for specific performance of Clause 12 of the Sale Deed dated 19.09.2001 being Writ Petition No.37443 of 2011, which was also filed after a period of 11 years from the date of execution of the Sale Deed. Therefore, as such when the earlier writ petition was filed in the year 2011 which was also barred by delay and latches, the High Court ought not to have entertained the same. Instead, the High Court entertained the said writ petition and directed the NOIDA to decide the representation of the petitioner, which as such was made after a period of 10 years, expeditiously and it gave the fresh blood to the litigation, which otherwise was barred by delay and latches. The High Court by passing the order dated 07.04.2017 as such did not realise and/or appreciated that the writ petition itself was required to be dismissed on the ground of delay and latches as the same was filed after a period of 11 years from the date of execution of the Sale Deed under which the right was claimed. We have come across number of such orders passed by the High Courts directing the authorities to decide the representation though the representations are made belatedly and thereafter when a decision is taken on such representation, thereafter it can be said on behalf of the petitioner that the fresh cause of action has arisen on rejection of the representation. Therefore, when such orders are passed by the High Courts either relegating the petitioner to make a representation and/or directing the appropriate authority to decide the representation, the High Courts have to consider whether the writ petition is filed belatedly and/or the same is barred by latches and/or not, so that in future the person who has approached belatedly may not contend that the fresh cause of action has arisen on rejection of the representation. Even in a case where earlier representation is rejected, the High Court shall decide the matter on merits.5. As observed by this Court in catena of decisions, mere representation does not extend the period of limitation and the aggrieved person has to approach the Court expeditiously and within reasonable time. If it is found that the writ petitioner is guilty of delay and latches, the High Court should dismiss it at the threshold and ought not to dispose of the writ petition by relegating the writ petitioner to file a representation and/or directing the authority to decide the representation, once it is found that the original writ petitioner is guilty of delay and latches. Such order shall not give an opportunity to the petitioner to thereafter contend that rejection of the representation subsequently has given a fresh cause of action.6. Even otherwise on merits also, we are in complete agreement with the view taken by the High Court. The High Court has rightly refused to grant any relief which as such was in the form of specific performance of the contract. No writ under Article 226 of the Constitution of India shall be maintainable and/or entertainable for specific performance of the contract and that too after a period of 10 years by which time even the suit for specific performance would have been barred by limitation.
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Everest Advertising Pvt. Ltd Vs. State, Govt. Of Nct Of Delhi | 2. By reason of the purported resolution dated 15.02.1995, whereupon strong reliance has been placed by Mr. Mishra, only the accused No. 2 was authorized to do certain acts on behalf of the Company. The cheques were issued on 15.08.1996, i.e., after a period of 17 months from the date of the said resolution. As is evident from the averments made in the complaint petition, the cheques represented the amount of interest payable for a total period of 15 days only calculated at the rate of 25% per annum on the amount of deposit, viz., rupees two crores." 21. The observations made in Saroj Kumar Poddar (supra) were, however, explained therein, stating: "A faint suggestion was made that this Court in Saroj Kumar Poddar (supra) has laid down the law that the complaint petition not only must contain averments satisfying the requirements of Section 141 of the Act but must also show as to how and in what manner the appellant was responsible for the conduct of the business of the company or otherwise responsible to it in regard to its functioning. A plain reading of the said judgment would show that no such general law was laid down therein. The observations were made in the context of the said case as it was dealing with a contention that although no direct averment was made as against the appellant of the said case fulfilling the requirements of Section 141 of the Act but there were other averments which would show that the appellant therein was liable therefor." [See also N.K. Wahi v. Shekhar Singh & Others 2007 (4) SCALE 188 ]22. The law operating in this behalf is, therefore, no longer res integra. What is, therefore, necessary is the application of law. Necessary ingredients of Section 141 have been stated in the complaint petition at more than one place. Whether the same satisfies the requirements of law or not is the question.23. A Chairman of a large Company may or may not be aware of the actual transaction. If in a given situation, cheques are issued in ordinary course of business. The Managing Director or a Deputy Managing Director, in view of S.M.S. Pharmaceuticals Ltd (supra) would be deemed to be aware thereof. A Chairman or a Director of a Company need not be. But, without going into the finer question raised by Mr. Tulsi, we may notice that allegations have not only been made in terms of the wordings of section but also at more than one place, it has categorically been averred that the payments were made after the meetings held by and between the representative of the Company and Accused Nos. 1 to 5 which would include Respondent Nos. 2 and 3.24. It is, therefore, not a case where having regard to the position held by the said respondents in the Company, they could plead ignorance of the entire transaction.25. Not only cheques were issued having regard to the huge amount payable by Accused No. 6 to the Company but also as a result of fall out of non-payment thereof, negotiations were held between the parties wherein Respondent Nos. 2 and 3 took part, and, thus, in our opinion, there cannot be any doubt that the ingredients of the provisions of Section 141 of the Act stand satisfied.26. Reliance placed by Mr. Tulsi on a decision of a Division Bench of this Court in Pepsi Foods Ltd. and Another v. Special Judicial Magistrate and Others [(1998) 5 SCC 749] , in our opinion, is not apposite. 27. One of the questions which fell for consideration therein was as to whether the order of the Magistrate summoning the accused reflected that he had applied the mind to the fact of the case and the law applicable thereto. In that case, the Company was proceeded against under Section 7/16 of the Prevention of Food Adulteration Act, 1954. The Managing Director was also made an accused along with the Company. This Court examined the allegations made in the complaint petition and noticed there were as many as 12 accused named in the complaint. The Court pointed out the duties of the public authorities specified therein including the public analyst. This Court also took into consideration the nature of the complaint as also the circumstances in which the complaint petition came to be filed. In that case, bottle containing the soft drink was said to have been purchased from a shop known as "The Flavours Fast Food and Cool Corner" and not directly from the manufacturer. In the complaint petition, it was alleged that only upon inquiry, the complainant came to learn that the manufacturer of the bottle of sample was Appellant No. 1 therein and the other accused were their Managing Directors, Directors and Executive Director and Others Officers.28. It was, in the aforementioned situation, observed: "28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused." | 1[ds]16. Therefore, in our opinion the observation of this Court in the case of Mathew1 that for recalling an erroneous order of issuance of process, no specific provision of law is required, would run counter to the scheme of the Code which has not provided for review and prohibits interference at interlocutory stages. Therefore, we are of the opinion, that the view of this Court in Mathew case1 that no specific provision is required for recalling an erroneous order, amounting to one without jurisdiction, does not lay down the correct law.The said ratio has been reiterated by another 3-Judge Bench of this Court in Subramanium Sethuraman v. State of Maharashtra and Anr. [JT 2004 (8) SC 220 and N.K. Sharma v. Abhimanyu (2005) 13 SCC 213 ].13. Unfortunately, this aspect of the matter was not considered by the High Court despite the aforementioned binding precedents. The High Court, however, for all intent and purport upheld the order passed by the learned Magistrate on the premise that allegations made in the complaint petition do not satisfy the requirements of Section 141 of the Negotiable Instruments Act.14. The said provision readsOffences by companies.- (1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence:Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the Sate Government, as the case may be, he shall not be liable for prosecution under this Chapter.(2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the art of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.Explanation.- For the purposes of this section,-(a) company means any body corporate and includes a firm or other association of individuals; and(b) director, in relation to a firm, means a partner in the firm.As the contentions of the parties are covered by a few decisions of this Court, we may at the outset notice the law operating in the field.16. The applicability and/or extent of Section 141 of the Act was referred to and considered by a 3-Judge Bench of this Court in S.M.S.Pharmaceuticals Ltd. v. Neeta Bhalla and Anr. [(2005) 8 SCC 89 : 2005 (7) SCALE 397 ].17. The questions so referred read aswhether for purposes of Section 141 of the Negotiable Instruments Act, 1881, it is sufficient if the substance of the allegation read as a whole fulfill the requirements of the said section and it is not necessary to specifically state in the complaint that the persons accused was in charge of, or responsible for, the conduct of the business of the company.(b) whether a director of a company would be deemed to be in charge of, and responsible to, the company for conduct of the business of the company and, therefore, deemed to be guilty of the offence unless he proves to the contrary.(c) even if it is held that specific averments are necessary, whether in the absence of such averments the signatory of the cheque and or the Managing Directors of Joint Managing Director who admittedly would be in charge of the company and responsible to the company for conduct of its business could be proceeded against."18. They were answered in the followingIn view of the above discussion, our answers to the questions posed in the reference are as under:(a) It is necessary to specifically aver in a complaint under Section 141 that at the time the offence was committed, the person accused was in charge of, and responsible for the conduct of business of the company. This averment is an essential requirement of Section 141 and has to be made in a complaint. Without this averment being made in a complaint, the requirements of Section 141 cannot be said to be satisfied.(b) The answer to the question posed in sub-para (b) has to be in the negative. Merely being a director of a company is not sufficient to make the person liable under Section 141 of the Act. A director in a company cannot be deemed to be in charge of and responsible to the company for the conduct of its business. The requirement of Section 141 is that the person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a director in such cases.(c) The answer to Question (c) has to be in the affirmative. The question notes that the managing director or joint managing director would be admittedly in charge of the company and responsible to the company for the conduct of its business. When that is so, holders of such positions in a company become liable under Section 141 of the Act. By virtue of the office they hold as managing director or joint managing director, these persons are in charge of and responsible for the conduct of business of the company. Therefore, they get covered under Section 141. So far as the signatory of a cheque which is dishonoured is concerned, he is clearly responsible for the incriminating act and will be covered under sub-section (2) of Section 141.In Saroj Kumar Poddar v. State (NCT of Delhi) and Anr. [2007 (2) SCALE 36 ], this Courtfrom the Company and the appellant, as noticed hereinbefore, the Managing Director and all other Directors were also made accused. The appellant did not issue any cheque. He, as noticed hereinbefore, had resigned from the Directorship of the Company. It may be true that as to exactly on what date the said resignation was accepted by the Company is not known, but, even otherwise, there is no averment in the complaint petitions as to how and in what manner the appellant was responsible for the conduct of the business of the Company or otherwise responsible to it in regard to its functioning. He had not issued any cheque. How he is responsible for dishonour of the cheque has not been stated. The allegations made in paragraph 3, thus, in our opinion do not satisfy the requirements of Section 141 of the Act.Yet again in S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla and Anr. [2007 (3) SCALE 245 ], it wasterms of Section 138 of the Act, a complaint petition alleging an offence thereto must demonstrate that the following ingredients exist that:(i) cheque was issued;(ii) the same was presented;(iii) but, it was dishonoured;(iv) a notice in terms of the said provision was served on the person sought to be made liable; and(v) despite service of notice, neither any payment was made nor other obligations, if any, were complied with within fifteen days from the date of receipt of the notice.The liability of a Director must be determined on the date on which the offence is committed. Only because Respondent No. 1 herein was a party to a purported resolution dated 15.02.1995 by itself does not lead to an inference that she was actively associated with the management of the affairs of the Company. This Court in this case has categorically held that there may be a large number of Directors but some of them may not associate themselves in the management of the day to day affairs of the Company and, thus, are not responsible for conduct of the business of the Company. The averments must state that the person who is vicariously liable for commission of the offence of the Company both was incharge of and was responsible for the conduct of the business of the Company. Requirements laid down therein must be read conjointly and not disjunctively. When a legal fiction is raised, the ingredients therefor must be satisfied. If the complaint petition is read in its entirety, the same would show that the only person who was actively associated in the matter of obtaining loan, signing cheques and other affairs of the company which would lead to commission of the alleged offence was the accused No. 2. By reason of the purported resolution dated 15.02.1995, whereupon strong reliance has been placed by Mr. Mishra, only the accused No. 2 was authorized to do certain acts on behalf of the Company. The cheques were issued on 15.08.1996, i.e., after a period of 17 months from the date of the said resolution. As is evident from the averments made in the complaint petition, the cheques represented the amount of interest payable for a total period of 15 days only calculated at the rate of 25% per annum on the amount of deposit, viz., rupees two crores.The observations made in Saroj Kumar Poddar (supra) were, however, explained therein,faint suggestion was made that this Court in Saroj Kumar Poddar (supra) has laid down the law that the complaint petition not only must contain averments satisfying the requirements of Section 141 of the Act but must also show as to how and in what manner the appellant was responsible for the conduct of the business of the company or otherwise responsible to it in regard to its functioning. A plain reading of the said judgment would show that no such general law was laid down therein. The observations were made in the context of the said case as it was dealing with a contention that although no direct averment was made as against the appellant of the said case fulfilling the requirements of Section 141 of the Act but there were other averments which would show that the appellant therein was liablealso N.K. Wahi v. Shekhar Singh & Others 2007 (4) SCALE 188 ]22. The law operating in this behalf is, therefore, no longer res integra. What is, therefore, necessary is the application of law. Necessary ingredients of Section 141 have been stated in the complaint petition at more than one place. Whether the same satisfies the requirements of law or not is the question.23. A Chairman of a large Company may or may not be aware of the actual transaction. If in a given situation, cheques are issued in ordinary course of business. The Managing Director or a Deputy Managing Director, in view of S.M.S. Pharmaceuticals Ltd (supra) would be deemed to be aware thereof. A Chairman or a Director of a Company need not be. But, without going into the finer question raised by Mr. Tulsi, we may notice that allegations have not only been made in terms of the wordings of section but also at more than one place, it has categorically been averred that the payments were made after the meetings held by and between the representative of the Company and Accused Nos. 1 to 5 which would include Respondent Nos. 2 and 3.24. It is, therefore, not a case where having regard to the position held by the said respondents in the Company, they could plead ignorance of the entire transaction.25. Not only cheques were issued having regard to the huge amount payable by Accused No. 6 to the Company but also as a result of fall out of non-payment thereof, negotiations were held between the parties wherein Respondent Nos. 2 and 3 took part, and, thus, in our opinion, there cannot be any doubt that the ingredients of the provisions of Section 141 of the Act stand satisfied.26. Reliance placed by Mr. Tulsi on a decision of a Division Bench of this Court in Pepsi Foods Ltd. and Another v. Special Judicial Magistrate and Others [(1998) 5 SCC 749] , in our opinion, is not apposite.One of the questions which fell for consideration therein was as to whether the order of the Magistrate summoning the accused reflected that he had applied the mind to the fact of the case and the law applicable thereto. In that case, the Company was proceeded against under Section 7/16 of the Prevention of Food Adulteration Act, 1954.The Managing Director was also made an accused along with the Company. This Court examined the allegations made in the complaint petition and noticed there were as many as 12 accused named in the complaint. The Court pointed out the duties of the public authorities specified therein including the public analyst. This Court also took into consideration the nature of the complaint as also the circumstances in which the complaint petition came to be filed. In that case, bottle containing the soft drink was said to have been purchased from a shop known as "The Flavours Fast Food and Cool Corner" and not directly from the manufacturer. In the complaint petition, it was alleged that only upon inquiry, the complainant came to learn that the manufacturer of the bottle of sample was Appellant No. 1 therein and the other accused were their Managing Directors, Directors and Executive Director and Others Officers.28. It was, in the aforementioned situation,Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the | 1 | 4,485 | 2,783 | ### 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. By reason of the purported resolution dated 15.02.1995, whereupon strong reliance has been placed by Mr. Mishra, only the accused No. 2 was authorized to do certain acts on behalf of the Company. The cheques were issued on 15.08.1996, i.e., after a period of 17 months from the date of the said resolution. As is evident from the averments made in the complaint petition, the cheques represented the amount of interest payable for a total period of 15 days only calculated at the rate of 25% per annum on the amount of deposit, viz., rupees two crores." 21. The observations made in Saroj Kumar Poddar (supra) were, however, explained therein, stating: "A faint suggestion was made that this Court in Saroj Kumar Poddar (supra) has laid down the law that the complaint petition not only must contain averments satisfying the requirements of Section 141 of the Act but must also show as to how and in what manner the appellant was responsible for the conduct of the business of the company or otherwise responsible to it in regard to its functioning. A plain reading of the said judgment would show that no such general law was laid down therein. The observations were made in the context of the said case as it was dealing with a contention that although no direct averment was made as against the appellant of the said case fulfilling the requirements of Section 141 of the Act but there were other averments which would show that the appellant therein was liable therefor." [See also N.K. Wahi v. Shekhar Singh & Others 2007 (4) SCALE 188 ]22. The law operating in this behalf is, therefore, no longer res integra. What is, therefore, necessary is the application of law. Necessary ingredients of Section 141 have been stated in the complaint petition at more than one place. Whether the same satisfies the requirements of law or not is the question.23. A Chairman of a large Company may or may not be aware of the actual transaction. If in a given situation, cheques are issued in ordinary course of business. The Managing Director or a Deputy Managing Director, in view of S.M.S. Pharmaceuticals Ltd (supra) would be deemed to be aware thereof. A Chairman or a Director of a Company need not be. But, without going into the finer question raised by Mr. Tulsi, we may notice that allegations have not only been made in terms of the wordings of section but also at more than one place, it has categorically been averred that the payments were made after the meetings held by and between the representative of the Company and Accused Nos. 1 to 5 which would include Respondent Nos. 2 and 3.24. It is, therefore, not a case where having regard to the position held by the said respondents in the Company, they could plead ignorance of the entire transaction.25. Not only cheques were issued having regard to the huge amount payable by Accused No. 6 to the Company but also as a result of fall out of non-payment thereof, negotiations were held between the parties wherein Respondent Nos. 2 and 3 took part, and, thus, in our opinion, there cannot be any doubt that the ingredients of the provisions of Section 141 of the Act stand satisfied.26. Reliance placed by Mr. Tulsi on a decision of a Division Bench of this Court in Pepsi Foods Ltd. and Another v. Special Judicial Magistrate and Others [(1998) 5 SCC 749] , in our opinion, is not apposite. 27. One of the questions which fell for consideration therein was as to whether the order of the Magistrate summoning the accused reflected that he had applied the mind to the fact of the case and the law applicable thereto. In that case, the Company was proceeded against under Section 7/16 of the Prevention of Food Adulteration Act, 1954. The Managing Director was also made an accused along with the Company. This Court examined the allegations made in the complaint petition and noticed there were as many as 12 accused named in the complaint. The Court pointed out the duties of the public authorities specified therein including the public analyst. This Court also took into consideration the nature of the complaint as also the circumstances in which the complaint petition came to be filed. In that case, bottle containing the soft drink was said to have been purchased from a shop known as "The Flavours Fast Food and Cool Corner" and not directly from the manufacturer. In the complaint petition, it was alleged that only upon inquiry, the complainant came to learn that the manufacturer of the bottle of sample was Appellant No. 1 therein and the other accused were their Managing Directors, Directors and Executive Director and Others Officers.28. It was, in the aforementioned situation, observed: "28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."
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1
### Explanation:
the company which would lead to commission of the alleged offence was the accused No. 2. By reason of the purported resolution dated 15.02.1995, whereupon strong reliance has been placed by Mr. Mishra, only the accused No. 2 was authorized to do certain acts on behalf of the Company. The cheques were issued on 15.08.1996, i.e., after a period of 17 months from the date of the said resolution. As is evident from the averments made in the complaint petition, the cheques represented the amount of interest payable for a total period of 15 days only calculated at the rate of 25% per annum on the amount of deposit, viz., rupees two crores.The observations made in Saroj Kumar Poddar (supra) were, however, explained therein,faint suggestion was made that this Court in Saroj Kumar Poddar (supra) has laid down the law that the complaint petition not only must contain averments satisfying the requirements of Section 141 of the Act but must also show as to how and in what manner the appellant was responsible for the conduct of the business of the company or otherwise responsible to it in regard to its functioning. A plain reading of the said judgment would show that no such general law was laid down therein. The observations were made in the context of the said case as it was dealing with a contention that although no direct averment was made as against the appellant of the said case fulfilling the requirements of Section 141 of the Act but there were other averments which would show that the appellant therein was liablealso N.K. Wahi v. Shekhar Singh & Others 2007 (4) SCALE 188 ]22. The law operating in this behalf is, therefore, no longer res integra. What is, therefore, necessary is the application of law. Necessary ingredients of Section 141 have been stated in the complaint petition at more than one place. Whether the same satisfies the requirements of law or not is the question.23. A Chairman of a large Company may or may not be aware of the actual transaction. If in a given situation, cheques are issued in ordinary course of business. The Managing Director or a Deputy Managing Director, in view of S.M.S. Pharmaceuticals Ltd (supra) would be deemed to be aware thereof. A Chairman or a Director of a Company need not be. But, without going into the finer question raised by Mr. Tulsi, we may notice that allegations have not only been made in terms of the wordings of section but also at more than one place, it has categorically been averred that the payments were made after the meetings held by and between the representative of the Company and Accused Nos. 1 to 5 which would include Respondent Nos. 2 and 3.24. It is, therefore, not a case where having regard to the position held by the said respondents in the Company, they could plead ignorance of the entire transaction.25. Not only cheques were issued having regard to the huge amount payable by Accused No. 6 to the Company but also as a result of fall out of non-payment thereof, negotiations were held between the parties wherein Respondent Nos. 2 and 3 took part, and, thus, in our opinion, there cannot be any doubt that the ingredients of the provisions of Section 141 of the Act stand satisfied.26. Reliance placed by Mr. Tulsi on a decision of a Division Bench of this Court in Pepsi Foods Ltd. and Another v. Special Judicial Magistrate and Others [(1998) 5 SCC 749] , in our opinion, is not apposite.One of the questions which fell for consideration therein was as to whether the order of the Magistrate summoning the accused reflected that he had applied the mind to the fact of the case and the law applicable thereto. In that case, the Company was proceeded against under Section 7/16 of the Prevention of Food Adulteration Act, 1954.The Managing Director was also made an accused along with the Company. This Court examined the allegations made in the complaint petition and noticed there were as many as 12 accused named in the complaint. The Court pointed out the duties of the public authorities specified therein including the public analyst. This Court also took into consideration the nature of the complaint as also the circumstances in which the complaint petition came to be filed. In that case, bottle containing the soft drink was said to have been purchased from a shop known as "The Flavours Fast Food and Cool Corner" and not directly from the manufacturer. In the complaint petition, it was alleged that only upon inquiry, the complainant came to learn that the manufacturer of the bottle of sample was Appellant No. 1 therein and the other accused were their Managing Directors, Directors and Executive Director and Others Officers.28. It was, in the aforementioned situation,Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the
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State Of Gujarat Vs. M/S. Ananta Mills Ltd | the Sales Tax Officer on the ground that "Rule 6 (ii) is not applicable when subsidiary or incidental product alone is sold and the main product is used in the manufacture of other goods. Looking to the wording of the aforesaid rule, all the products of the unprocessed goods should be sold."3. The respondent filed a revision before the Deputy Commissioner of Sales Tax, who also upheld the order of the Sales Tax Officer. The respondent then filed a revision before the Gujarat Sales Tax Tribunal. The Tribunal rejected the revision on the ground that "the purpose underlying the applicants purchases was primarily the production of ginned cotton for manufacture. The cotton seeds which form the bye-product of the ginning process would no doubt have to be sold because the Mill has no use for them. But that does not mean that the purpose for which unginned cotton was purchased was the sale of cotton seeds. It is not reasonable to suppose that a textile mill purchases unginned cotton for the purpose of selling the cotton seeds". At the instance of the respondent as already stated, the Tribunal referred the case to the High Court. The High Court answered question No. 2 in the affirmative but did not answer question No. 1 on the ground that the answer to the question was not relevant for the purpose of determining the matter in controversy.4. Mr. Ganapathy Iyer, the learned counsel for the appellant, contends before us that the Sales Tax authorities were right in refusing to allow a refund to the respondent and that the High Court erred in answering the second question in favour of the respondent. In order to appreciate the contentions of the parties, it is necessary to set out Rs. 6 and 12 and the schedule to the Rules."6. Classes of sales on which general sales tax shall not be payable. The general sales tax leviable under S. 9 shall not be payable in respect of the following classes of sales.(i) xx xx xx xx(ii) Sales of any goods falling under any entry specified in column 1 of the Schedule hereto to a dealer who holds a licence under S. 12 who furnishes to the selling dealer a certificate in Form (4) declaring that the goods sold to him are intended to be used by him in producing any goods falling under the corresponding entry in column 2 of the said Schedule for sale.SCHEDULEGoods from which the goods specified in column 2 are producedGoods produced12I. Cotton in Pod: unginned or unpressed cotton. Unginned cotton: ginned or pressed cotton: cotton seeds12. Refund and remission of purchases tax in certain cases-(1) Where a dealer who has purchased any goods specified in Clause (i) or (ii) of Rule 6 shows to the satisfaction of the Collector that they have been used by him for the purpose specified in the said clause, the Collector shall on application for refund made by the dealer in the manner specified in Rule 25 of the Bombay Sales Tax (Procedure) Rules, 1954 refund to such dealer the amount of purchase tax paid by him in respect of such purchase; or where the amount of purchase tax payable under Cl. (a) of S. 10 in respect of such purchase has not yet been paid, the collector shall by order remit the amount so payable"5. Mr. Ganapathy Iyer contends that when R. 12 speaks of the purpose specified in Cl.(ii) of R. 6 it means the purpose of "producing any goods falling under the corresponding entry in column 2 of the said Schedule for sale". In other words, he says that the purpose must be of producing unginned cotton, ginned or pressed cotton or cotton seeds for sale, and if any of these goods are produced but not sold then R. 12 does not apply.6. Mr. Shroff, on the other hand, contends that the words "purpose specified in the said clause" only mean the purpose of producing any goods falling under the corresponding entry in column 2 of the Schedule, and he wants us to omit from consideration the words "for sale"We agree with Mr. Ganapathy Iyer that the purpose must be the purpose of producing goods - unginned cotton, ginned of pressed cotton, cotton seeds - for sale, and the words "for sale" must be given effect to.7.But even if this contention of Mr. Ganapathy Iyer is accepted, the respondent would still in our opinion be entitled to refund under R. 12 (i) Rule 6 speaks of the intention at the time of the purchase but R. 12 does not incorporate that intention by referring to the purpose specified in R.6(ii). The intention at the time of the purchase is irrelevant for the purpose of R. 12. In R.6(ii) intention was relevant because the purchasing dealer had to furnish to the selling dealer a certificate in Form (4) declaring that the goods sold to him were intended to be used by him for producing any of the goods falling under the corresponding entry in Column 2 of the said schedule for sale. But when the respondent paid the purchase tax on unginned cotton under S. 10 (a) of the Act, he paid it because he purchased the same from persons who were not registered dealers and there was no question of furnishing any certificate at the stage. As the High Court observed, "what is necessary is that goods should has been actually used for the purpose specified viz. the production of any of the goods aforementioned for sale". These conditions have been satisfied in this case because unginned cotton was used for the purpose of producing one of the goods specified in column 2 namely, cotton seeds. Consequently, the respondent is entitled to a refund under R.12 and the High Court was right in answering the second question in the affirmative. We also agree with the High Court that in view of its answer to question No. 2 it is not necessary to answer question No.1.8 | 0[ds]7.But even if this contention of Mr. Ganapathy Iyer is accepted, the respondent would still in our opinion be entitled to refund under R. 12 (i) Rule 6 speaks of the intention at the time of the purchase but R. 12 does not incorporate that intention by referring to the purpose specified in R.6(ii). The intention at the time of the purchase is irrelevant for the purpose of R. 12. In R.6(ii) intention was relevant because the purchasing dealer had to furnish to the selling dealer a certificate in Form (4) declaring that the goods sold to him were intended to be used by him for producing any of the goods falling under the corresponding entry in Column 2 of the said schedule for sale. But when the respondent paid the purchase tax on unginned cotton under S. 10 (a) of the Act, he paid it because he purchased the same from persons who were not registered dealers and there was no question of furnishing any certificate at the stage. As the High Court observed, "what is necessary is that goods should has been actually used for the purpose specified viz. the production of any of the goods aforementioned for sale". These conditions have been satisfied in this case because unginned cotton was used for the purpose of producing one of the goods specified in column 2 namely, cotton seeds. Consequently, the respondent is entitled to a refund under R.12 and the High Court was right in answering the second question in the affirmative. We also agree with the High Court that in view of its answer to question No. 2 it is not necessary to answer question No.1. | 0 | 1,462 | 312 | ### Instruction:
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the Sales Tax Officer on the ground that "Rule 6 (ii) is not applicable when subsidiary or incidental product alone is sold and the main product is used in the manufacture of other goods. Looking to the wording of the aforesaid rule, all the products of the unprocessed goods should be sold."3. The respondent filed a revision before the Deputy Commissioner of Sales Tax, who also upheld the order of the Sales Tax Officer. The respondent then filed a revision before the Gujarat Sales Tax Tribunal. The Tribunal rejected the revision on the ground that "the purpose underlying the applicants purchases was primarily the production of ginned cotton for manufacture. The cotton seeds which form the bye-product of the ginning process would no doubt have to be sold because the Mill has no use for them. But that does not mean that the purpose for which unginned cotton was purchased was the sale of cotton seeds. It is not reasonable to suppose that a textile mill purchases unginned cotton for the purpose of selling the cotton seeds". At the instance of the respondent as already stated, the Tribunal referred the case to the High Court. The High Court answered question No. 2 in the affirmative but did not answer question No. 1 on the ground that the answer to the question was not relevant for the purpose of determining the matter in controversy.4. Mr. Ganapathy Iyer, the learned counsel for the appellant, contends before us that the Sales Tax authorities were right in refusing to allow a refund to the respondent and that the High Court erred in answering the second question in favour of the respondent. In order to appreciate the contentions of the parties, it is necessary to set out Rs. 6 and 12 and the schedule to the Rules."6. Classes of sales on which general sales tax shall not be payable. The general sales tax leviable under S. 9 shall not be payable in respect of the following classes of sales.(i) xx xx xx xx(ii) Sales of any goods falling under any entry specified in column 1 of the Schedule hereto to a dealer who holds a licence under S. 12 who furnishes to the selling dealer a certificate in Form (4) declaring that the goods sold to him are intended to be used by him in producing any goods falling under the corresponding entry in column 2 of the said Schedule for sale.SCHEDULEGoods from which the goods specified in column 2 are producedGoods produced12I. Cotton in Pod: unginned or unpressed cotton. Unginned cotton: ginned or pressed cotton: cotton seeds12. Refund and remission of purchases tax in certain cases-(1) Where a dealer who has purchased any goods specified in Clause (i) or (ii) of Rule 6 shows to the satisfaction of the Collector that they have been used by him for the purpose specified in the said clause, the Collector shall on application for refund made by the dealer in the manner specified in Rule 25 of the Bombay Sales Tax (Procedure) Rules, 1954 refund to such dealer the amount of purchase tax paid by him in respect of such purchase; or where the amount of purchase tax payable under Cl. (a) of S. 10 in respect of such purchase has not yet been paid, the collector shall by order remit the amount so payable"5. Mr. Ganapathy Iyer contends that when R. 12 speaks of the purpose specified in Cl.(ii) of R. 6 it means the purpose of "producing any goods falling under the corresponding entry in column 2 of the said Schedule for sale". In other words, he says that the purpose must be of producing unginned cotton, ginned or pressed cotton or cotton seeds for sale, and if any of these goods are produced but not sold then R. 12 does not apply.6. Mr. Shroff, on the other hand, contends that the words "purpose specified in the said clause" only mean the purpose of producing any goods falling under the corresponding entry in column 2 of the Schedule, and he wants us to omit from consideration the words "for sale"We agree with Mr. Ganapathy Iyer that the purpose must be the purpose of producing goods - unginned cotton, ginned of pressed cotton, cotton seeds - for sale, and the words "for sale" must be given effect to.7.But even if this contention of Mr. Ganapathy Iyer is accepted, the respondent would still in our opinion be entitled to refund under R. 12 (i) Rule 6 speaks of the intention at the time of the purchase but R. 12 does not incorporate that intention by referring to the purpose specified in R.6(ii). The intention at the time of the purchase is irrelevant for the purpose of R. 12. In R.6(ii) intention was relevant because the purchasing dealer had to furnish to the selling dealer a certificate in Form (4) declaring that the goods sold to him were intended to be used by him for producing any of the goods falling under the corresponding entry in Column 2 of the said schedule for sale. But when the respondent paid the purchase tax on unginned cotton under S. 10 (a) of the Act, he paid it because he purchased the same from persons who were not registered dealers and there was no question of furnishing any certificate at the stage. As the High Court observed, "what is necessary is that goods should has been actually used for the purpose specified viz. the production of any of the goods aforementioned for sale". These conditions have been satisfied in this case because unginned cotton was used for the purpose of producing one of the goods specified in column 2 namely, cotton seeds. Consequently, the respondent is entitled to a refund under R.12 and the High Court was right in answering the second question in the affirmative. We also agree with the High Court that in view of its answer to question No. 2 it is not necessary to answer question No.1.8
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7.But even if this contention of Mr. Ganapathy Iyer is accepted, the respondent would still in our opinion be entitled to refund under R. 12 (i) Rule 6 speaks of the intention at the time of the purchase but R. 12 does not incorporate that intention by referring to the purpose specified in R.6(ii). The intention at the time of the purchase is irrelevant for the purpose of R. 12. In R.6(ii) intention was relevant because the purchasing dealer had to furnish to the selling dealer a certificate in Form (4) declaring that the goods sold to him were intended to be used by him for producing any of the goods falling under the corresponding entry in Column 2 of the said schedule for sale. But when the respondent paid the purchase tax on unginned cotton under S. 10 (a) of the Act, he paid it because he purchased the same from persons who were not registered dealers and there was no question of furnishing any certificate at the stage. As the High Court observed, "what is necessary is that goods should has been actually used for the purpose specified viz. the production of any of the goods aforementioned for sale". These conditions have been satisfied in this case because unginned cotton was used for the purpose of producing one of the goods specified in column 2 namely, cotton seeds. Consequently, the respondent is entitled to a refund under R.12 and the High Court was right in answering the second question in the affirmative. We also agree with the High Court that in view of its answer to question No. 2 it is not necessary to answer question No.1.
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Gtl Infrastructure Limited Vs. Canara Bank and 6 Others | of the petitioner is enormous and computed to the extent of Rs.1758,41,96,635/-. There is another debt of the associated company and that is also enormous. When such is the magnitude of the debt, then, a cautious approach by respondent Nos.1 to 6 cannot be ipso facto termed as arbitrary, unfair and unreasonable. The petitioner will have to establish and prove that the IRAC guidelines styled as such contain a mandate. That mandate has not been adhered to by respondent Nos.1 to 6 though all conditions in relation thereto are fulfilled by the petitioner is another facet, which will have to be established and proved by the petitioner. That the decisions are taken unanimously by all lenders and, therefore, respondent Nos.1 to 6 cannot back out of the same must be proved by leading evidence. That legally admissible evidence ought to take care of all the alternate versions and placed by the petitioner itself before us. Firstly, it is said that these decisions are unanimous and thereafter it is said that the decisions are the product of collective commercial wisdom of the superior majority of the creditors of the petitioner and they have to be implemented.79. We do not think that the grounds raised in this petition, consistent with which Mr.Kamdar raised the arguments, enable us to issue the writ as prayed for. 80. The grounds in the writ petition project a version of the petitioner based on which a relief in the nature of specific performance of contractual obligations is sought in this writ petition. If we make a reference to grounds (N), (O) and (P), then, it is evident that the petitioner say that it has fulfilled its part of promise or obligation and respondent Nos.1 to 6 have refused to comply with the guidelines despite the same. Now, what the reciprocal or corresponding obligations qua the dues of the lenders are and whether they are contractual or statutory in character would have to be established and proved. If these are contractual obligations, then, whether there is absolute refusal to perform the obligations or discharge the duties or that the duties and obligations allegedly attributed to the lenders have been performed only in part and not in full are matters, which would have to be established and proved by the petitioner either in substantive legal proceedings or in defence to the proceedings instituted against it by respondent No.7. To our mind, it would be highly risky and unsafe to rely on the version of the petitioner and issue the writ of mandamus as prayed.81. All the more, when the seventh respondent has, in a communication addressed to the petitioner, copy of which is at Exhibit ‘BB to the petition, clarified its position. It has referred to all the facts in details and then said in the recall notice that pursuant to the terms of the SDR package, the debt amounting to Rs. 35.60 Crores and Rs.271.11 Crores were converted into equity in the share capital of the petitioner and Chennai Network Infrastructure Limited (CNIL). The consortium lenders, alongwith Canara Bank, post conversion of debt into equity, are presently holding 51% shareholding. They were required to be transferred to new investor within a period of 18 months from the date of reference to the change of present management. This is an essential condition of the SDR package. That has not been fulfilled. The standstill clause available under the SDR expired on 19th March, 2018. Therefore, by the Reserve Bank of India guidelines, the petitioners accounts were classified as non-performing assets by the statutory auditors with retrospective effect from 1st July, 2011. This is on account of failure or non-compliance with the CDR and SDR packages. The company has failed to meet its repayment obligations towards the Canara Bank and committed breaches and defaults under financial documents. That is why the Canara Bank called upon the petitioner to pay the dues by its reminder dated 27th June, 2018. There is no response to the same. That is how the bank was seeking to recover a sum of Rs.540.35 Crores under the Rupees Facility as on 23rd August, 2018.82. We are clear in our mind after we have perused this letter that it is the first respondent, which is accusing the petitioner of breach and violation of the packages and the conditions thereof. The bank accuses the petitioner of not fulfilling its commitment or the essential conditions under the packages. This may be or may not be correct, but it is definitely a version contrary to that of the petitioner. In such circumstances, how arbitrariness, much less, mala fides, can be attributed to a public financial institution without resolution of the factual disputes, is unclear to us. In other words, this is not an undisputed factual position, but a highly disputed one. It is in these circumstances that we are disinclined to grant any relief.83. It may be that the seventh respondent has addressed a letter to the petitioner, copy of which is at page 322 of the paperbook, and it claims that it is entitled to recover from the borrowers or guarantors the total dues of the banks alongwith the interest at contractual rate. It makes reference to certain banks mentioned in Schedule-1. This may not be inclusive of all the debts and dues to even Canara Bank. Therefore, this communication may say that the assignment agreements are with Union Bank of India, Andhra Bank, ICICI Bank Limited, Axis Bank, Bank of Baroda, Bank of India, Dena Bank, Indian Overseas Bank, Punjab National Bank, State Bank of India, Oriental Bank of Commerce and Central Bank of India, still, the petitioner has impleaded Canara Bank, Corporation Bank, Indian Bank, Vijaya Bank, IDBI Bank and Life Insurance Corporation of India Limited, all of which are not a party to this agreement. In these circumstances, marking of the documents in favour of these entities would not suffice. All the more when we have made detailed reference to the affidavit-inreply of respondent No.1 as well. | 0[ds]71. To appreciate the arguments of Mr.Kamdar and Mr.Seervai, we must first refer to the settled principles, which enable us to issue a writ of mandamus. In both matters, a writ of mandamus is claimed. That writ cannot be issued as a matter of course. It cannot be issued on the mere asking of it. It cannot be issued merely because the petitioners feel that it should be issued. The petitioner will have to prove that there is a pre-existing and pre-established legal right and a corresponding duty, which alone would enable us to issue thisthis part of the Circular would require a closer look. The said aspect is found in Part A, 3, 4 and 5. That says, an asset can be termed as Non Performing Asset, if it satisfies the criteria laid down in the definition of this expression. Firstly, this part says that in line with the international practices and as per the recommendations made by the Committee on the Financial System, the Reserve Bank of India has introduced, in a phased manner, the norms styled as prudential norms for income recognition, asset classification and provisioning for the advances portfolio of the banks. Pertinently, Mr.Kamdar does not point out that it is to move towards greater consistency and transparency in the published accounts that the policy has been brought into effect. It is clarified that this policy should be objective and based on record of recovery rather than on any subjective considerations. Likewise, the classification of assets of banks has to be done on the basis of objective criteria, which would ensure a uniform and consistent application of the norms. Importantly, the provisioning should be made on the basis of the classification of assets based on the period for which the asset has remained non-performing and the availability of security and the realisable value thereof. The banks are urged to ensure that while granting loans and advances, the repayment schedules fixed should be realistic. It should promote prompt repayment by the borrowers and thus improve the recovery of advances. Mr.Kamdar does not say that the policy of income recognition is any way faulty or defective. He relies upon this policy, but ultimately, there is a discretion vesting in the financial institutions. The asset classification has to be based by determining the assets as Substandard Assets, Doubtful Assets and Loss Assets. What could be termed as Substandard Assets, Doubtful Assets and Loss Assets is set out in Part 4.1. The guidelines for classification of assets are laid down in Part 4.2 onwards. The further paras of this part are with regard to provisioning norms and they are set out in Part 5 onwards. The provisioning norms are aimed at fixing primary responsibility. The primary responsibility for making adequate provisions for any diminution in the value of loan assets, investment or other assets is that of the bank managements and its statutory auditors. There has to be a inspecting officer of the Reserve Bank of India whose assessment furnished to the bank will assist it and statutory auditors in taking a decision with regard to making adequate and necessary provisions in terms of prudential guidelines. The prudential norms, the classification of assets would then enable theclauses would reveal that the financial institutions and banks can acquire financial assets. This can be done by taking recourse to the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, the SARFAESI Act). This provides for sale of financial assets on ‘without recourse basis. This means the credit risk associated with the financial assets being transferred to the creditors. This is subject to unrealised part of the asset reverting to the seller bank/financial institution. The banks are directed to ensure that the effect of the sale of the financial assets should be such that the asset is taken off the books of the bank/financial institution and after the sale, there should not be any known liability devolving on the bank/financial institution. Thereafter, how the sale is to be conducted in a prudent manner, in accordance with the policy approved by the Board and what policy and guidelines the Board should lay down is set out in clause (b) of para 6.4. Further, clause (c) says that the banks and financial institutions should ensure that subsequent to sale of the financial assets to Securitisation Company and Reconstruction Company, they do not assume any operational, legal or any other type of risks relating to the financial assets, which are sold.The entire set of guidelines denote that this is an advise, caution and guidance provided on sale of financial assets to Securitisation Company (SC) and Reconstruction Company (RC). As provided in para 6.3, the financial assets which can be sold to the Securitisation Company and Reconstruction Company by any bank or financial institution are non-performing assets, including a non-performing bond/debenture, a Standard Asset where the asset is under consortium/multiple banking arrangements and atleast 75% by value of the asset is classified as non-performing asset in the books of other banks/financial institutions and atleast 75% by value of the banks/financial institutions who are under the consortium/multiple banking arrangements agree to the sale of the asset. Secondly, a procedure has to be followed and in the case of consortium/multiple banking arrangements, if 75% (by value) of the banks/financial institutions decide to accept the offer, the remaining banks/financial institutions will be obligated to accept the offer. However, this is preceded by an assessment of each bank/ financial institution of the value offered by the Securitisation Company/Reconstruction Company for the financial asset and decide whether to accept or reject the offer. Further, there cannot be a transfer to this Securitisation Company/ Reconstruction Company at a contingent price, whereby, in the event of shortfall in the realization by the Securitisation Company/Reconstruction Company, the banks/financial institutions would have to bear a part of the shortfall. Finally, if the auction process is used for sale of non-performing assets to Securitisation Companies/ Reconstruction Companies, that should be more transparent and complying with what is laid down in para 6.4 clause (d)(iv).Mr.Kamdar, therefore, is not correct in arguing that this circular ought to be followed and must be directed to be followed by respondent Nos.1 to 6, even if that is containing a caution, advise and guidance. It is common ground that the petitioner says that these guidelines/norms should be applied and there is no choice not to abide by it. The argument is that since more than 75% (by value) of the lenders of the petitioner have assigned all their rights, title and interest in the financial facilities granted by them to the petitioner in favour of respondent No.7 by executing assignment agreements, by virtue of the IRAC guidelines, all other lenders of the petitioner are obligated to accept the offer of respondent No.7 for assignment of their respective rights, title and interest in the financial facilities granted to the petitioner. To our mind, this understanding of the senior counsel is flawed and erroneous simply because there is an obligation only when the guidance is adhered to and all precautions are taken before the assignment arrangement for sale. Once these are guidelines and they cannot be elevated or placed at the level of a binding rule, regulation and statute, then, we cannot accept the arguments of Mr. Kamdar. Assuming that these are fulfilled, as projected by the petitioner, still the decision to be taken requires balancing and weighing of several factors. There is a risk which has to be taken and ultimately the policy must be applied on case-to-case basis. We cannot direct respondent Nos.1 to 6, who are financial institutions/banks, to agree to the demand of the petitioner. If these are policy matters and dealing with fiscal and financial issues, then, the discretion of the banks/financial institutions cannot be taken away by issuing a command or writ contrary to the expressed terms and conditions of the policy. The policy document must be read as a whole and nothing should be read, as is attempted, in isolation or out of context. In these circumstances, we do not think that the petitioner can claim the writ. In fact, in the grounds of this petition, respondent No.1 is targeted and it is stated that its actions are mala fide and arbitrary. It is seeking to recover monies from the petitioner under the original financial documents after a part of the respondent No.1s debt has been converted into equity under the SDR Scheme. Now, we cannot attribute mala fides and arbitrariness so easily and casually in financial matters to a public sector bank. That bank is the custodian of public funds. It holds them in trust for the public. It is not expected to surrender and sacrifice its interests, particularly legal rights merely because the petitioner desires that it should join in total restructuring of the debt of the petitioner or total waiver. We must bear in mind that before us is a debtor who owes thousands of crores to these financial institutions and banks and it is dictating to them to accept the proposal of settlement or restructuring of its debt. The proposal has to be evaluated and considered in the backdrop of its long term implications and consequences. If the bank adopts such a course, then, we cannot direct the bank to act contrary to the same. That would mean calling upon the bank not to act for public good and in publicsuch an accusation or allegation is easy to level, but when the nationalised bank has to also consider all pros and cons and its decision should be rational, reasonable, fair, just and in public interest, then, merely because its interpretation of the clauses of a scheme is allegedly erroneous, the writ cannot be issued as claimed. In fact, in grounds (E), (F) and (G), precise allegations made by respondent No.1 are summarised. The petitioner seeks to challenge these allegations. However, all the matters pertaining to these allegations are factual issues. The remarks of the first respondent are termed as allegations by the petitioner,but what we find is that it is an evaluation by the first respondent. Its evaluation and financial commitments may not be acceptable to the petitioner, but surely, on the version of the petitioner, we cannot issue the writ as prayed. These are seriously disputed factual issues. Therefore based on all these grounds, the petitioner cannot insist on respondent Nos.1 to 6 to agree with it. It is apparent from a reading of ground (K) that respondent Nos.1 to 6 are public sector undertakings and custodian of public funds. However, before accusing these respondents of acting unfairly, arbitrarily, the petitioner knows that the guidelines of the Reserve Bank of India on all and every possible aspects of financial management, grant of loans and advances, do not have a binding character. Ultimately, the banks have been given a free play in the joint. The decisions are discretionary in nature. The discretion cannot be directed to be exercised in a particular manner when several options and courses are open to the decision making body. It is not obliged to take only one particular decision, much less in favour of the petitioner. It is in these circumstances that we do not agree with Mr.Kamdar that everything that is placed before us is mandatory in character. In fact, we have reproduced the paragraphs of the petition which are based on the IRAC guidelines contained in circular dated July 1, 2015. There is no case outside this circular, which is pressed before us. Merely because several meetings were held and some tentative decisions were taken does not mean that there is a mandate flowing from the same. The decisions are termed as unanimous by the petitioner, but it is conceded before us that 13 lenders have assigned their respective debts to respondent No.7. However, respondent Nos.1 to 6 are not agreeable to the decisions taken at the consortium meeting by the other lenders of the petitioner. There is no question of backing out, but if the petitioner says that there is a commercial merit in assigning the debt of the petitioner in favour of respondent No.7, then, that commercial wisdom is not collective, but of the majority of the creditors. Particularly even after scaling down and granting a concession, the debt of the petitioner is enormous and computed to the extent of Rs.1758,41,96,635/-. There is another debt of the associated company and that is also enormous. When such is the magnitude of the debt, then, a cautious approach by respondent Nos.1 to 6 cannot be ipso facto termed as arbitrary, unfair and unreasonable. The petitioner will have to establish and prove that the IRAC guidelines styled as such contain a mandate. That mandate has not been adhered to by respondent Nos.1 to 6 though all conditions in relation thereto are fulfilled by the petitioner is another facet, which will have to be established and proved by the petitioner. That the decisions are taken unanimously by all lenders and, therefore, respondent Nos.1 to 6 cannot back out of the same must be proved by leading evidence. That legally admissible evidence ought to take care of all the alternate versions and placed by the petitioner itself before us. Firstly, it is said that these decisions are unanimous and thereafter it is said that the decisions are the product of collective commercial wisdom of the superior majority of the creditors of the petitioner and they have to be implemented.We do not think that the grounds raised in this petition, consistent with which Mr.Kamdar raised the arguments, enable us to issue the writ as prayed for.The grounds in the writ petition project a version of the petitioner based on which a relief in the nature of specific performance of contractual obligations is sought in this writ petition. If we make a reference to grounds (N), (O) and (P), then, it is evident that the petitioner say that it has fulfilled its part of promise or obligation and respondent Nos.1 to 6 have refused to comply with the guidelines despite the same. Now, what the reciprocal or corresponding obligations qua the dues of the lenders are and whether they are contractual or statutory in character would have to be established and proved. If these are contractual obligations, then, whether there is absolute refusal to perform the obligations or discharge the duties or that the duties and obligations allegedly attributed to the lenders have been performed only in part and not in full are matters, which would have to be established and proved by the petitioner either in substantive legal proceedings or in defence to the proceedings instituted against it by respondent No.7. To our mind, it would be highly risky and unsafe to rely on the version of the petitioner and issue the writ of mandamus as prayed.All the more, when the seventh respondent has, in a communication addressed to the petitioner, copy of which is at Exhibit ‘BB to the petition, clarified its position. It has referred to all the facts in details and then said in the recall notice that pursuant to the terms of the SDR package, the debt amounting to Rs. 35.60 Crores and Rs.271.11 Crores were converted into equity in the share capital of the petitioner and Chennai Network Infrastructure Limited (CNIL). The consortium lenders, alongwith Canara Bank, post conversion of debt into equity, are presently holding 51% shareholding. They were required to be transferred to new investor within a period of 18 months from the date of reference to the change of present management. This is an essential condition of the SDR package. That has not been fulfilled. The standstill clause available under the SDR expired on 19th March, 2018. Therefore, by the Reserve Bank of India guidelines, the petitioners accounts were classified as non-performing assets by the statutory auditors with retrospective effect from 1st July, 2011. This is on account of failure or non-compliance with the CDR and SDR packages. The company has failed to meet its repayment obligations towards the Canara Bank and committed breaches and defaults under financial documents. That is why the Canara Bank called upon the petitioner to pay the dues by its reminder dated 27th June, 2018. There is no response to the same. That is how the bank was seeking to recover a sum of Rs.540.35 Crores under the Rupees Facility as on 23rd August, 2018.We are clear in our mind after we have perused this letter that it is the first respondent, which is accusing the petitioner of breach and violation of the packages and the conditions thereof. The bank accuses the petitioner of not fulfilling its commitment or the essential conditions under the packages. This may be or may not be correct, but it is definitely a version contrary to that of the petitioner. In such circumstances, how arbitrariness, much less, mala fides, can be attributed to a public financial institution without resolution of the factual disputes, is unclear to us. In other words, this is not an undisputed factual position, but a highly disputed one. It is in these circumstances that we are disinclined to grant any relief.It may be that the seventh respondent has addressed a letter to the petitioner, copy of which is at page 322 of the paperbook, and it claims that it is entitled to recover from the borrowers or guarantors the total dues of the banks alongwith the interest at contractual rate. It makes reference to certain banks mentioned in Schedule-1. This may not be inclusive of all the debts and dues to even Canara Bank. Therefore, this communication may say that the assignment agreements are with Union Bank of India, Andhra Bank, ICICI Bank Limited, Axis Bank, Bank of Baroda, Bank of India, Dena Bank, Indian Overseas Bank, Punjab National Bank, State Bank of India, Oriental Bank of Commerce and Central Bank of India, still, the petitioner has impleaded Canara Bank, Corporation Bank, Indian Bank, Vijaya Bank, IDBI Bank and Life Insurance Corporation of India Limited, all of which are not a party to this agreement. In these circumstances, marking of the documents in favour of these entities would not suffice. All the more when we have made detailed reference to the affidavit-inreply of respondent No.1 as well.We do not think that the judgments relied upon by Mr.Kamdar have any bearing on the issue.In Dharani Sugars and Chemicals Limited Vs.Union of India and Ors.(2019) 5 SCC 480 , the issue was different. There, the Banking Regulation Act and Sections referred to in Ravindras case (supra) have been referred to and thereafter, the argument that these circulars of the Reserve Bank of India are not traceable to any statutory provisions was dealt with. In these circumstances, the arguments on constitutional validity of Section 35-AA and 35-AB have been rejected. Once again these are in the context of the challenge to these provisions after the Insolvency and Bankruptcy Code, 2016 was enacted. The Honble Supreme Court concluded its judgment on the issues by holding the circulars ultra vires. Now, these circulars, in the backdrop of which the challenge was raised, were not identical nor was the factual issue. Therefore, this judgment has no bearing on the issue before us.Similarly, the judgment delivered in the case of Innoventive Industries Limited Vs. ICICI Bank and Anr. (2018) 1 SCC 407 would also have no application as a distinct controversy was dealt with by the same.As far as the writ petition argued by Mr.Seervai is concerned, there, we find that the prayer is to direct respondent No.7 to enter into a inter-creditor agreement. That is already entered into between the petitioner and remaining domestic lenders (respondent Nos.3 to 6 and 8 to 18).Now, the mandamus that is claimed is once again on the basis of the petitioners version. Thepetitioner says, in the grounds of challenge itself, that the prudential framework issued by the second respondent (Reserve Bank of India) provides lenders with a wide array of options to implement a resolution plan for the resolution of the debts owed by the borrowers.Ultimately, it is a resolution plan. Now, whether the word shall appearing therein would denote that it is mandatory to enter into the intercreditor agreement or otherwise or that is not decisive would depend upon this framework and reading of the same in its entirety. Similarly, the disputes and which are purely factual in nature, founded on contractual obligations necessitates consideration of a contra version. That is how ground (A) of the petition is drafted. The intent of the framework is to facilitate decision on the basis of prescribed thresholds. Whether this prudential framework is better in comparison to given one and contains an absolute mandate as directed, will have to be considered in the backdrop of the case of the Canara Bank. We have referred to that case and the debt of Canara Bank owed by the petitioner. The Canara Bank may have allegedly, contrary to this framework and the alleged mandate therein, approached the NCLT, but the proceedings before the said Tribunal are pending. Now, whether that proceeding is maintainable or not and must be disposed of in the light of the petitioners assertions, is a matter entirely left for decision by the NCLT. If the NCLT has to determine and decide the matter within the time framework, then, it is not as if the NCLTs decision, if adverse to the petitioner, is unassailable. It can be assailed and challenged in the scheme of the IBC itself by filing appeals. Now, the petitioner says very clearly in ground (B) that respondent No.7 has not per se refused to implement a resolution plan, but its stand is that the petitioner has not submitted a resolution plan that is acceptable to respondent No.7. Respondent No.7 is not averse to considering the so called better plan. Now, which plan completely and totally resolves the disputes and fulfills the obligations of parties and settles the dues of respondent No.7, is not a matter which can be decided in writ jurisdiction. We cannot, by a unilateral version of the petitioner, issue the writ. Ultimately nobody and much less a public sector financial institution/bank can be compelled to accept a settlement or resolution plan of the debtor. The bank has its own limitations, restrictions and desires to abide by the norms which it terms as more prudent. In the circumstances, we do not think that the petitioners version can be accepted as sacrosanct. The petitioner here also relies upon the minutes of the joint lenders meeting. If only the Canara Bank is not joining the resolution plan, then, it cannot be compelled to join it by entering into the intercreditor agreement, all the more when it has approached the NCLT. The allegations made against the Canara Bank by the petitioner can be substantiated in the appropriate proceedings or while defending the proceedings before the NCLT or other Forums. | 0 | 15,451 | 4,249 | ### 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:
of the petitioner is enormous and computed to the extent of Rs.1758,41,96,635/-. There is another debt of the associated company and that is also enormous. When such is the magnitude of the debt, then, a cautious approach by respondent Nos.1 to 6 cannot be ipso facto termed as arbitrary, unfair and unreasonable. The petitioner will have to establish and prove that the IRAC guidelines styled as such contain a mandate. That mandate has not been adhered to by respondent Nos.1 to 6 though all conditions in relation thereto are fulfilled by the petitioner is another facet, which will have to be established and proved by the petitioner. That the decisions are taken unanimously by all lenders and, therefore, respondent Nos.1 to 6 cannot back out of the same must be proved by leading evidence. That legally admissible evidence ought to take care of all the alternate versions and placed by the petitioner itself before us. Firstly, it is said that these decisions are unanimous and thereafter it is said that the decisions are the product of collective commercial wisdom of the superior majority of the creditors of the petitioner and they have to be implemented.79. We do not think that the grounds raised in this petition, consistent with which Mr.Kamdar raised the arguments, enable us to issue the writ as prayed for. 80. The grounds in the writ petition project a version of the petitioner based on which a relief in the nature of specific performance of contractual obligations is sought in this writ petition. If we make a reference to grounds (N), (O) and (P), then, it is evident that the petitioner say that it has fulfilled its part of promise or obligation and respondent Nos.1 to 6 have refused to comply with the guidelines despite the same. Now, what the reciprocal or corresponding obligations qua the dues of the lenders are and whether they are contractual or statutory in character would have to be established and proved. If these are contractual obligations, then, whether there is absolute refusal to perform the obligations or discharge the duties or that the duties and obligations allegedly attributed to the lenders have been performed only in part and not in full are matters, which would have to be established and proved by the petitioner either in substantive legal proceedings or in defence to the proceedings instituted against it by respondent No.7. To our mind, it would be highly risky and unsafe to rely on the version of the petitioner and issue the writ of mandamus as prayed.81. All the more, when the seventh respondent has, in a communication addressed to the petitioner, copy of which is at Exhibit ‘BB to the petition, clarified its position. It has referred to all the facts in details and then said in the recall notice that pursuant to the terms of the SDR package, the debt amounting to Rs. 35.60 Crores and Rs.271.11 Crores were converted into equity in the share capital of the petitioner and Chennai Network Infrastructure Limited (CNIL). The consortium lenders, alongwith Canara Bank, post conversion of debt into equity, are presently holding 51% shareholding. They were required to be transferred to new investor within a period of 18 months from the date of reference to the change of present management. This is an essential condition of the SDR package. That has not been fulfilled. The standstill clause available under the SDR expired on 19th March, 2018. Therefore, by the Reserve Bank of India guidelines, the petitioners accounts were classified as non-performing assets by the statutory auditors with retrospective effect from 1st July, 2011. This is on account of failure or non-compliance with the CDR and SDR packages. The company has failed to meet its repayment obligations towards the Canara Bank and committed breaches and defaults under financial documents. That is why the Canara Bank called upon the petitioner to pay the dues by its reminder dated 27th June, 2018. There is no response to the same. That is how the bank was seeking to recover a sum of Rs.540.35 Crores under the Rupees Facility as on 23rd August, 2018.82. We are clear in our mind after we have perused this letter that it is the first respondent, which is accusing the petitioner of breach and violation of the packages and the conditions thereof. The bank accuses the petitioner of not fulfilling its commitment or the essential conditions under the packages. This may be or may not be correct, but it is definitely a version contrary to that of the petitioner. In such circumstances, how arbitrariness, much less, mala fides, can be attributed to a public financial institution without resolution of the factual disputes, is unclear to us. In other words, this is not an undisputed factual position, but a highly disputed one. It is in these circumstances that we are disinclined to grant any relief.83. It may be that the seventh respondent has addressed a letter to the petitioner, copy of which is at page 322 of the paperbook, and it claims that it is entitled to recover from the borrowers or guarantors the total dues of the banks alongwith the interest at contractual rate. It makes reference to certain banks mentioned in Schedule-1. This may not be inclusive of all the debts and dues to even Canara Bank. Therefore, this communication may say that the assignment agreements are with Union Bank of India, Andhra Bank, ICICI Bank Limited, Axis Bank, Bank of Baroda, Bank of India, Dena Bank, Indian Overseas Bank, Punjab National Bank, State Bank of India, Oriental Bank of Commerce and Central Bank of India, still, the petitioner has impleaded Canara Bank, Corporation Bank, Indian Bank, Vijaya Bank, IDBI Bank and Life Insurance Corporation of India Limited, all of which are not a party to this agreement. In these circumstances, marking of the documents in favour of these entities would not suffice. All the more when we have made detailed reference to the affidavit-inreply of respondent No.1 as well.
### Response:
0
### Explanation:
institution without resolution of the factual disputes, is unclear to us. In other words, this is not an undisputed factual position, but a highly disputed one. It is in these circumstances that we are disinclined to grant any relief.It may be that the seventh respondent has addressed a letter to the petitioner, copy of which is at page 322 of the paperbook, and it claims that it is entitled to recover from the borrowers or guarantors the total dues of the banks alongwith the interest at contractual rate. It makes reference to certain banks mentioned in Schedule-1. This may not be inclusive of all the debts and dues to even Canara Bank. Therefore, this communication may say that the assignment agreements are with Union Bank of India, Andhra Bank, ICICI Bank Limited, Axis Bank, Bank of Baroda, Bank of India, Dena Bank, Indian Overseas Bank, Punjab National Bank, State Bank of India, Oriental Bank of Commerce and Central Bank of India, still, the petitioner has impleaded Canara Bank, Corporation Bank, Indian Bank, Vijaya Bank, IDBI Bank and Life Insurance Corporation of India Limited, all of which are not a party to this agreement. In these circumstances, marking of the documents in favour of these entities would not suffice. All the more when we have made detailed reference to the affidavit-inreply of respondent No.1 as well.We do not think that the judgments relied upon by Mr.Kamdar have any bearing on the issue.In Dharani Sugars and Chemicals Limited Vs.Union of India and Ors.(2019) 5 SCC 480 , the issue was different. There, the Banking Regulation Act and Sections referred to in Ravindras case (supra) have been referred to and thereafter, the argument that these circulars of the Reserve Bank of India are not traceable to any statutory provisions was dealt with. In these circumstances, the arguments on constitutional validity of Section 35-AA and 35-AB have been rejected. Once again these are in the context of the challenge to these provisions after the Insolvency and Bankruptcy Code, 2016 was enacted. The Honble Supreme Court concluded its judgment on the issues by holding the circulars ultra vires. Now, these circulars, in the backdrop of which the challenge was raised, were not identical nor was the factual issue. Therefore, this judgment has no bearing on the issue before us.Similarly, the judgment delivered in the case of Innoventive Industries Limited Vs. ICICI Bank and Anr. (2018) 1 SCC 407 would also have no application as a distinct controversy was dealt with by the same.As far as the writ petition argued by Mr.Seervai is concerned, there, we find that the prayer is to direct respondent No.7 to enter into a inter-creditor agreement. That is already entered into between the petitioner and remaining domestic lenders (respondent Nos.3 to 6 and 8 to 18).Now, the mandamus that is claimed is once again on the basis of the petitioners version. Thepetitioner says, in the grounds of challenge itself, that the prudential framework issued by the second respondent (Reserve Bank of India) provides lenders with a wide array of options to implement a resolution plan for the resolution of the debts owed by the borrowers.Ultimately, it is a resolution plan. Now, whether the word shall appearing therein would denote that it is mandatory to enter into the intercreditor agreement or otherwise or that is not decisive would depend upon this framework and reading of the same in its entirety. Similarly, the disputes and which are purely factual in nature, founded on contractual obligations necessitates consideration of a contra version. That is how ground (A) of the petition is drafted. The intent of the framework is to facilitate decision on the basis of prescribed thresholds. Whether this prudential framework is better in comparison to given one and contains an absolute mandate as directed, will have to be considered in the backdrop of the case of the Canara Bank. We have referred to that case and the debt of Canara Bank owed by the petitioner. The Canara Bank may have allegedly, contrary to this framework and the alleged mandate therein, approached the NCLT, but the proceedings before the said Tribunal are pending. Now, whether that proceeding is maintainable or not and must be disposed of in the light of the petitioners assertions, is a matter entirely left for decision by the NCLT. If the NCLT has to determine and decide the matter within the time framework, then, it is not as if the NCLTs decision, if adverse to the petitioner, is unassailable. It can be assailed and challenged in the scheme of the IBC itself by filing appeals. Now, the petitioner says very clearly in ground (B) that respondent No.7 has not per se refused to implement a resolution plan, but its stand is that the petitioner has not submitted a resolution plan that is acceptable to respondent No.7. Respondent No.7 is not averse to considering the so called better plan. Now, which plan completely and totally resolves the disputes and fulfills the obligations of parties and settles the dues of respondent No.7, is not a matter which can be decided in writ jurisdiction. We cannot, by a unilateral version of the petitioner, issue the writ. Ultimately nobody and much less a public sector financial institution/bank can be compelled to accept a settlement or resolution plan of the debtor. The bank has its own limitations, restrictions and desires to abide by the norms which it terms as more prudent. In the circumstances, we do not think that the petitioners version can be accepted as sacrosanct. The petitioner here also relies upon the minutes of the joint lenders meeting. If only the Canara Bank is not joining the resolution plan, then, it cannot be compelled to join it by entering into the intercreditor agreement, all the more when it has approached the NCLT. The allegations made against the Canara Bank by the petitioner can be substantiated in the appropriate proceedings or while defending the proceedings before the NCLT or other Forums.
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THE STATE OF RAJASTHAN & ORS Vs. SURJI DEVI | M. R. Shah, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 01.03.2019 passed by the High Court of Judicature for Rajasthan at Jodhpur in D.B. Special Appeal Writ No. 1045 of 2018, by which the Division Bench of the High Court has dismissed the said appeal and has confirmed the order dated 17.01.2017 passed by the learned Single Judge by which the learned Single Judge quashed and set aside the order of termination dated 16.12.1996 dismissing the late husband of the respondent from service, the State of Rajasthan and others have preferred the present appeal. 2. The facts leading to the present appeal in nutshell are as under:- 2.1 That the late husband of the respondent herein late Shri Rameshwar Lal was serving as Gram Sevak. He was suspended from service vide order dated 08.01.1996 on the ground of willful absence from duty and not completing the audit. The administrative committee of Panchayat Samiti Nokha in its meting dated 26.02.1996 took a decision to remove him from service. That thereafter a public notice was published in the daily news paper on 14.03.1996, whereby Rameshwar Lal was directed to join his duties within a period of 15 days with explanation. Even after completion of 15 days the said Rameshwar Lal did not join his duties. Thereafter the services of the said Rameshwar Lal – late husband of the respondent were terminated vide order dated 16.12.1996 invoking the provisions of Section 91 (3) of the Rajasthan Panchayati Raj Act, 1994 (hereinafter referred to as the Act 1994) and Rule 86 of Rajasthan Services Rules, 1951. It appears that the late husband of the respondent preferred an appeal against the order of termination issued under Section 91 (4) of the Act 1994 before the District Establishment Committee, Zila Parishad, Bikaner. During the pendency of the said appeal the employee – Rameshwar Lal passed away on 18.09.2009. That thereafter the respondent herein preferred a writ petition before the High Court being S.B. Civil Writ Petition No.11405 of 2011 challenging the dismissal/termination order dated 16.12.1996. By judgment and order dated 17.01.2017, the learned Single Judge allowed the said writ petition and quashed and set aside the order of termination dated 16.12.1996 and directed the appellants to give all consequential benefits to the respondent treating her husband to be superannuated on 16.12.1996. The judgment and order passed by the learned Single Judge has been confirmed by the Division Bench, by the impugned judgment and order. Hence the present appeal. 3. We have heard the learned counsel appearing on behalf of the respective parties at length. 4. The facts which emerged are that the late husband of the respondent was removed/dismissed from service by order dated 16.12.1996. He preferred an appeal which was pending before the appellate authority. During the pendency of the appeal, the late husband of the respondent – employee died/passed away in the year 2009. If the late husband of the respondent would not have been terminated/dismissed he would have attained the age of superannuation in the year 1999. After the death of the employee – late husband of the respondent she did not pursue the appeal, maybe she might not be aware of filing/pendency of the appeal. That thereafter the respondent – widow of the employee filed a writ petition before the High Court in the year 2012. Thus, by the time the respondent preferred a writ petition before the High Court, 15 years had passed from the date of termination and even approximately 13 years from the date on which the employee would have attained the age of superannuation i.e. from the year 1999. Considering the aforesaid facts and circumstances, as such, the learned Single Judge ought not to have entertained the writ petition in the year 2012, challenging the order of termination passed on 16.12.1996, on the ground of delay and laches alone. At this stage, it is required to be noted that even despite the fact that it was specifically prayed by the respondent in writ petition before the learned Single Judge to direct the authority to decide the appeal preferred by her husband, the learned Single Judge despite the above prayer and the pending appeal, entered into the merits of the case and quashed and set aside the order of termination dated 16.12.1996. 5. The submission on behalf of the respondent is that the termination on 16.12.1996 was absolutely illegal and against the principles of natural justice is concerned, once we hold that the writ petition was barred by delay and laches, thereafter the merits are not required to be considered. As observed hereinabove, the learned Single Judge erred in entertaining the petition in the year 2012 challenging the order of termination passed in the year 1996, on the ground of delay and laches and more particularly when even otherwise if the termination order would not have been passed the deceased employee would have retired on attaining the age of superannuation in the year 1999. | 1[ds]4. The facts which emerged are that the late husband of the respondent was removed/dismissed from service by order dated 16.12.1996. He preferred an appeal which was pending before the appellate authority. During the pendency of the appeal, the late husband of the respondent – employee died/passed away in the year 2009. If the late husband of the respondent would not have been terminated/dismissed he would have attained the age of superannuation in the year 1999. After the death of the employee – late husband of the respondent she did not pursue the appeal, maybe she might not be aware of filing/pendency of the appeal. That thereafter the respondent – widow of the employee filed a writ petition before the High Court in the year 2012. Thus, by the time the respondent preferred a writ petition before the High Court, 15 years had passed from the date of termination and even approximately 13 years from the date on which the employee would have attained the age of superannuation i.e. from the year 1999. Considering the aforesaid facts and circumstances, as such, the learned Single Judge ought not to have entertained the writ petition in the year 2012, challenging the order of termination passed on 16.12.1996, on the ground of delay and laches alone. At this stage, it is required to be noted that even despite the fact that it was specifically prayed by the respondent in writ petition before the learned Single Judge to direct the authority to decide the appeal preferred by her husband, the learned Single Judge despite the above prayer and the pending appeal, entered into the merits of the case and quashed and set aside the order of termination dated 16.12.1996.As observed hereinabove, the learned Single Judge erred in entertaining the petition in the year 2012 challenging the order of termination passed in the year 1996, on the ground of delay and laches and more particularly when even otherwise if the termination order would not have been passed the deceased employee would have retired on attaining the age of superannuation in the year 1999. | 1 | 899 | 376 | ### 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:
M. R. Shah, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 01.03.2019 passed by the High Court of Judicature for Rajasthan at Jodhpur in D.B. Special Appeal Writ No. 1045 of 2018, by which the Division Bench of the High Court has dismissed the said appeal and has confirmed the order dated 17.01.2017 passed by the learned Single Judge by which the learned Single Judge quashed and set aside the order of termination dated 16.12.1996 dismissing the late husband of the respondent from service, the State of Rajasthan and others have preferred the present appeal. 2. The facts leading to the present appeal in nutshell are as under:- 2.1 That the late husband of the respondent herein late Shri Rameshwar Lal was serving as Gram Sevak. He was suspended from service vide order dated 08.01.1996 on the ground of willful absence from duty and not completing the audit. The administrative committee of Panchayat Samiti Nokha in its meting dated 26.02.1996 took a decision to remove him from service. That thereafter a public notice was published in the daily news paper on 14.03.1996, whereby Rameshwar Lal was directed to join his duties within a period of 15 days with explanation. Even after completion of 15 days the said Rameshwar Lal did not join his duties. Thereafter the services of the said Rameshwar Lal – late husband of the respondent were terminated vide order dated 16.12.1996 invoking the provisions of Section 91 (3) of the Rajasthan Panchayati Raj Act, 1994 (hereinafter referred to as the Act 1994) and Rule 86 of Rajasthan Services Rules, 1951. It appears that the late husband of the respondent preferred an appeal against the order of termination issued under Section 91 (4) of the Act 1994 before the District Establishment Committee, Zila Parishad, Bikaner. During the pendency of the said appeal the employee – Rameshwar Lal passed away on 18.09.2009. That thereafter the respondent herein preferred a writ petition before the High Court being S.B. Civil Writ Petition No.11405 of 2011 challenging the dismissal/termination order dated 16.12.1996. By judgment and order dated 17.01.2017, the learned Single Judge allowed the said writ petition and quashed and set aside the order of termination dated 16.12.1996 and directed the appellants to give all consequential benefits to the respondent treating her husband to be superannuated on 16.12.1996. The judgment and order passed by the learned Single Judge has been confirmed by the Division Bench, by the impugned judgment and order. Hence the present appeal. 3. We have heard the learned counsel appearing on behalf of the respective parties at length. 4. The facts which emerged are that the late husband of the respondent was removed/dismissed from service by order dated 16.12.1996. He preferred an appeal which was pending before the appellate authority. During the pendency of the appeal, the late husband of the respondent – employee died/passed away in the year 2009. If the late husband of the respondent would not have been terminated/dismissed he would have attained the age of superannuation in the year 1999. After the death of the employee – late husband of the respondent she did not pursue the appeal, maybe she might not be aware of filing/pendency of the appeal. That thereafter the respondent – widow of the employee filed a writ petition before the High Court in the year 2012. Thus, by the time the respondent preferred a writ petition before the High Court, 15 years had passed from the date of termination and even approximately 13 years from the date on which the employee would have attained the age of superannuation i.e. from the year 1999. Considering the aforesaid facts and circumstances, as such, the learned Single Judge ought not to have entertained the writ petition in the year 2012, challenging the order of termination passed on 16.12.1996, on the ground of delay and laches alone. At this stage, it is required to be noted that even despite the fact that it was specifically prayed by the respondent in writ petition before the learned Single Judge to direct the authority to decide the appeal preferred by her husband, the learned Single Judge despite the above prayer and the pending appeal, entered into the merits of the case and quashed and set aside the order of termination dated 16.12.1996. 5. The submission on behalf of the respondent is that the termination on 16.12.1996 was absolutely illegal and against the principles of natural justice is concerned, once we hold that the writ petition was barred by delay and laches, thereafter the merits are not required to be considered. As observed hereinabove, the learned Single Judge erred in entertaining the petition in the year 2012 challenging the order of termination passed in the year 1996, on the ground of delay and laches and more particularly when even otherwise if the termination order would not have been passed the deceased employee would have retired on attaining the age of superannuation in the year 1999.
### Response:
1
### Explanation:
4. The facts which emerged are that the late husband of the respondent was removed/dismissed from service by order dated 16.12.1996. He preferred an appeal which was pending before the appellate authority. During the pendency of the appeal, the late husband of the respondent – employee died/passed away in the year 2009. If the late husband of the respondent would not have been terminated/dismissed he would have attained the age of superannuation in the year 1999. After the death of the employee – late husband of the respondent she did not pursue the appeal, maybe she might not be aware of filing/pendency of the appeal. That thereafter the respondent – widow of the employee filed a writ petition before the High Court in the year 2012. Thus, by the time the respondent preferred a writ petition before the High Court, 15 years had passed from the date of termination and even approximately 13 years from the date on which the employee would have attained the age of superannuation i.e. from the year 1999. Considering the aforesaid facts and circumstances, as such, the learned Single Judge ought not to have entertained the writ petition in the year 2012, challenging the order of termination passed on 16.12.1996, on the ground of delay and laches alone. At this stage, it is required to be noted that even despite the fact that it was specifically prayed by the respondent in writ petition before the learned Single Judge to direct the authority to decide the appeal preferred by her husband, the learned Single Judge despite the above prayer and the pending appeal, entered into the merits of the case and quashed and set aside the order of termination dated 16.12.1996.As observed hereinabove, the learned Single Judge erred in entertaining the petition in the year 2012 challenging the order of termination passed in the year 1996, on the ground of delay and laches and more particularly when even otherwise if the termination order would not have been passed the deceased employee would have retired on attaining the age of superannuation in the year 1999.
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Vemareddy Kumaraswamy Reddy Vs. State Of A.P | ?language? is often misunderstood even in ordinary conversation or correspondence. The tragedy is that although in the matter of correspondence or conversation the person who has spoken the words or used the language can be approached for clarification, the Legislature cannot be approached as the Legislature, after enacting a law or Act, becomes functus officio so far as that particular Act is concerned and it cannot itself interpret it. No doubt, the Legislature retains the power to amend or repeal the law so made and can also declare its meaning, but that can be done only by making another law or statute after undertaking the whole process of law-making. 15. Statute being an edict of the Legislature, it is necessary that it is expressed in clear and unambiguous language. In spite of Courts saying so, the draftsmen have paid little attention and they still boast of the old British jingle ?I am the parliamentary draftsman. I compose the country?s laws. And of half of the litigation, I am undoubtedly the cause?, which was referred to by this Court in Palace Admn. Board v. Rama Varma Bharathan Thampuran, AIR 1980 SC 1187 at P.1195. In Kirby v. Leather, 1965 (2) All ER 441, the draftsmen were severely criticized in regard to Section 22(2)(b) of the (UK) Limitation Act, 1939, as it was said that the Section was so obscure that the draftsmen must have been of unsound mind. 16. Where, however, the words were clear, there is no obscurity, there is no ambiguity and the intention of the Legislature is clearly conveyed, there is no scope for the Court to innovate or take upon itself the task of amending or altering the statutory provisions. In that situation the Judges should not proclaim that they are playing the role of a law-maker merely for an exhibition of judicial valour. They have to remember that there is a line, though thin, which separates adjudication from legislation. That line should not be crossed or erased. This can be vouchsafed by ?an alert recognition of the necessity not to cross it and instinctive, as well as trained reluctance to do so?. (See: Frankfurter, Some Reflections on the Reading of Statutes in ?Essays on Jurisprudence?, Columbia Law Review, P. 51.) 17. Words and phrases are symbols that stimulate mental references to referents. The object of interpreting a statute is to ascertain the intention of the Legislature enacting it. [See Institute of Chartered Accountants of India v. M/s. Price Waterhouse and Anr., AIR 1998 SC 74 ]. The intention of the Legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence, a construction which requires for its support, addition or substitution of words or which results in rejection of words as meaningless has to be avoided. As observed in Crawford v. Spooner, (1846 (6) Moore PC 1), Courts, cannot aid the Legislatures? defective phrasing of an Act, we cannot add or mend, and by construction make up deficiencies which are left there. [See The State of Gujarat and Ors. v. Dilipbhai Nathjibhai Patel and Anr., III (1998) SLT 400=I (1998) CCR 380 (SC)=JT 1998 (2) SC 253 ]. It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. (See Stock v. Frank Jones (Tiptan) Ltd., 1978 1 All ER 948 (HL). Rules of interpretation do not permit Courts to do so, unless the provision as it stands is meaningless or of doubtful meaning. Courts are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself. (Per Lord Loreburn L.C. in Vickers Sons and Maxim Ltd. v. Evans, (1910) AC 445 (HL), quoted in Jamma Masjid, Mercara v. Kodimaniandra Deviah and Ors., AIR 1962 SC 847 ). 18. The question is not what may be supposed and has been intended but what has been said. ?Statutes should be construed not as theorems of Euclid?. Judge Learned Hand said, ?but words must be construed with some imagination of the purposes which lie behind them?. (See Lenigh Valley Coal Co. v. Yensavage, 218 FR 547). The view was re-iterated in Union of India and Ors. v. Filip Tiago De Gama of Vedem Vasco De Gama, AIR 1990 SC 981 . 19. In Dr. R. Venkatchalam and Ors. Etc. v. Dy. Transport Commissioner and Ors. Etc. AIR 1977 SC 842 , it was observed that Courts must avoid the danger of a prior, determination of the meaning of a provision based on their own pre-conceived notions of ideological structure or scheme into which the provision to be interpreted is somewhat fitted. They are not entitled to usurp legislative function under the disguise of interpretation. 20. While interpreting a provision the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the Legislature to amend, modify or repeal it, if deemed necessary. (See Commissioner of Sales Tax, M.P. v. Popular Trading Company, Ujjain, I (2000) SLT 611=(2000 (5) SCC 511. The legislative casus omissus cannot be supplied by judicial interpretative process. (See Maulavi Hussein Haji Abraham Umarji v. State of Gujarat and Anr., IV (2004) SLT 886=2004(6) SCC 672 and State of Jharkhand and Anr. v. Govind Singh, VII (2004) SLT 393=2005 (10) SCC 437. 21. The residual question is the number of years for which the Seignorage rates are to be computed. 22. We do not find any substance in the plea of learned Counsel for the appellants that the entitlement of the appellants is for 30 years. Admittedly the trees were 12 years old at the time the land were surrendered and, therefore, for the balance 18 years only the appellants will be entitled to at the relevant seignorage rates. | 1[ds]9. A bare reading thereof makes the position clear that the amounts are to be calculated from 5th to 30th years10. That being so, the stand of the State Government as accepted by the High Court that the seignorage rate is for one year and accordingly fixing it for the 12 years is clearly unsustainable. It is to be noted that the trees were 12 years old and stood on the surrendered land. It is further clear that up to 5 years cashew trees are held to be not fruit bearing trees11. The emphasis for the State was that the object of the concerned statue was not to confer any benefit beyond the statutory entitlements and for that purpose according to learned Counsel for the State the object of the statute was vital. According to him for the purpose of construction of the notifications of the District Collector, the same has to be read in a manner which would give true effect to the intention of the statute13. It is said that a statute is an edict of the Legislature. The elementary principle of interpreting or construing a statute is to gather the mens or sententia legis of the Legislature. It is well settled principle in law that the Court cannot read anything into a statutory provision which is plain and unambiguous14. Interpretation postulates the search for the true meaning of the words used in the statute as a medium of expression to communicate a particular thought. The task is not easy as the ?language? is often misunderstood even in ordinary conversation or correspondence. The tragedy is that although in the matter of correspondence or conversation the person who has spoken the words or used the language can be approached for clarification, the Legislature cannot be approached as the Legislature, after enacting a law or Act, becomes functus officio so far as that particular Act is concerned and it cannot itself interpret it. No doubt, the Legislature retains the power to amend or repeal the law so made and can also declare its meaning, but that can be done only by making another law or statute after undertaking the whole process of law-making16. Where, however, the words were clear, there is no obscurity, there is no ambiguity and the intention of the Legislature is clearly conveyed, there is no scope for the Court to innovate or take upon itself the task of amending or altering the statutory provisions. In that situation the Judges should not proclaim that they are playing the role of a law-maker merely for an exhibition of judicial valour. They have to remember that there is a line, though thin, which separates adjudication from legislation. That line should not be crossed or erased17. Words and phrases are symbols that stimulate mental references to referents. The object of interpreting a statute is to ascertain the intention of the Legislature enacting it. [See Institute of Chartered Accountants of India v. M/s. Price Waterhouse and Anr., AIR 1998 SC 74 ]. The intention of the Legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence, a construction which requires for its support, addition or substitution of words or which results in rejection of words as meaningless has to be avoided22. We do not find any substance in the plea of learned Counsel for the appellants that the entitlement of the appellants is for 30 years. Admittedly the trees were 12 years old at the time the land were surrendered and, therefore, for the balance 18 years only the appellants will be entitled to at the relevant seignorage rates. | 1 | 2,563 | 677 | ### 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:
?language? is often misunderstood even in ordinary conversation or correspondence. The tragedy is that although in the matter of correspondence or conversation the person who has spoken the words or used the language can be approached for clarification, the Legislature cannot be approached as the Legislature, after enacting a law or Act, becomes functus officio so far as that particular Act is concerned and it cannot itself interpret it. No doubt, the Legislature retains the power to amend or repeal the law so made and can also declare its meaning, but that can be done only by making another law or statute after undertaking the whole process of law-making. 15. Statute being an edict of the Legislature, it is necessary that it is expressed in clear and unambiguous language. In spite of Courts saying so, the draftsmen have paid little attention and they still boast of the old British jingle ?I am the parliamentary draftsman. I compose the country?s laws. And of half of the litigation, I am undoubtedly the cause?, which was referred to by this Court in Palace Admn. Board v. Rama Varma Bharathan Thampuran, AIR 1980 SC 1187 at P.1195. In Kirby v. Leather, 1965 (2) All ER 441, the draftsmen were severely criticized in regard to Section 22(2)(b) of the (UK) Limitation Act, 1939, as it was said that the Section was so obscure that the draftsmen must have been of unsound mind. 16. Where, however, the words were clear, there is no obscurity, there is no ambiguity and the intention of the Legislature is clearly conveyed, there is no scope for the Court to innovate or take upon itself the task of amending or altering the statutory provisions. In that situation the Judges should not proclaim that they are playing the role of a law-maker merely for an exhibition of judicial valour. They have to remember that there is a line, though thin, which separates adjudication from legislation. That line should not be crossed or erased. This can be vouchsafed by ?an alert recognition of the necessity not to cross it and instinctive, as well as trained reluctance to do so?. (See: Frankfurter, Some Reflections on the Reading of Statutes in ?Essays on Jurisprudence?, Columbia Law Review, P. 51.) 17. Words and phrases are symbols that stimulate mental references to referents. The object of interpreting a statute is to ascertain the intention of the Legislature enacting it. [See Institute of Chartered Accountants of India v. M/s. Price Waterhouse and Anr., AIR 1998 SC 74 ]. The intention of the Legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence, a construction which requires for its support, addition or substitution of words or which results in rejection of words as meaningless has to be avoided. As observed in Crawford v. Spooner, (1846 (6) Moore PC 1), Courts, cannot aid the Legislatures? defective phrasing of an Act, we cannot add or mend, and by construction make up deficiencies which are left there. [See The State of Gujarat and Ors. v. Dilipbhai Nathjibhai Patel and Anr., III (1998) SLT 400=I (1998) CCR 380 (SC)=JT 1998 (2) SC 253 ]. It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. (See Stock v. Frank Jones (Tiptan) Ltd., 1978 1 All ER 948 (HL). Rules of interpretation do not permit Courts to do so, unless the provision as it stands is meaningless or of doubtful meaning. Courts are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself. (Per Lord Loreburn L.C. in Vickers Sons and Maxim Ltd. v. Evans, (1910) AC 445 (HL), quoted in Jamma Masjid, Mercara v. Kodimaniandra Deviah and Ors., AIR 1962 SC 847 ). 18. The question is not what may be supposed and has been intended but what has been said. ?Statutes should be construed not as theorems of Euclid?. Judge Learned Hand said, ?but words must be construed with some imagination of the purposes which lie behind them?. (See Lenigh Valley Coal Co. v. Yensavage, 218 FR 547). The view was re-iterated in Union of India and Ors. v. Filip Tiago De Gama of Vedem Vasco De Gama, AIR 1990 SC 981 . 19. In Dr. R. Venkatchalam and Ors. Etc. v. Dy. Transport Commissioner and Ors. Etc. AIR 1977 SC 842 , it was observed that Courts must avoid the danger of a prior, determination of the meaning of a provision based on their own pre-conceived notions of ideological structure or scheme into which the provision to be interpreted is somewhat fitted. They are not entitled to usurp legislative function under the disguise of interpretation. 20. While interpreting a provision the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the Legislature to amend, modify or repeal it, if deemed necessary. (See Commissioner of Sales Tax, M.P. v. Popular Trading Company, Ujjain, I (2000) SLT 611=(2000 (5) SCC 511. The legislative casus omissus cannot be supplied by judicial interpretative process. (See Maulavi Hussein Haji Abraham Umarji v. State of Gujarat and Anr., IV (2004) SLT 886=2004(6) SCC 672 and State of Jharkhand and Anr. v. Govind Singh, VII (2004) SLT 393=2005 (10) SCC 437. 21. The residual question is the number of years for which the Seignorage rates are to be computed. 22. We do not find any substance in the plea of learned Counsel for the appellants that the entitlement of the appellants is for 30 years. Admittedly the trees were 12 years old at the time the land were surrendered and, therefore, for the balance 18 years only the appellants will be entitled to at the relevant seignorage rates.
### Response:
1
### Explanation:
9. A bare reading thereof makes the position clear that the amounts are to be calculated from 5th to 30th years10. That being so, the stand of the State Government as accepted by the High Court that the seignorage rate is for one year and accordingly fixing it for the 12 years is clearly unsustainable. It is to be noted that the trees were 12 years old and stood on the surrendered land. It is further clear that up to 5 years cashew trees are held to be not fruit bearing trees11. The emphasis for the State was that the object of the concerned statue was not to confer any benefit beyond the statutory entitlements and for that purpose according to learned Counsel for the State the object of the statute was vital. According to him for the purpose of construction of the notifications of the District Collector, the same has to be read in a manner which would give true effect to the intention of the statute13. It is said that a statute is an edict of the Legislature. The elementary principle of interpreting or construing a statute is to gather the mens or sententia legis of the Legislature. It is well settled principle in law that the Court cannot read anything into a statutory provision which is plain and unambiguous14. Interpretation postulates the search for the true meaning of the words used in the statute as a medium of expression to communicate a particular thought. The task is not easy as the ?language? is often misunderstood even in ordinary conversation or correspondence. The tragedy is that although in the matter of correspondence or conversation the person who has spoken the words or used the language can be approached for clarification, the Legislature cannot be approached as the Legislature, after enacting a law or Act, becomes functus officio so far as that particular Act is concerned and it cannot itself interpret it. No doubt, the Legislature retains the power to amend or repeal the law so made and can also declare its meaning, but that can be done only by making another law or statute after undertaking the whole process of law-making16. Where, however, the words were clear, there is no obscurity, there is no ambiguity and the intention of the Legislature is clearly conveyed, there is no scope for the Court to innovate or take upon itself the task of amending or altering the statutory provisions. In that situation the Judges should not proclaim that they are playing the role of a law-maker merely for an exhibition of judicial valour. They have to remember that there is a line, though thin, which separates adjudication from legislation. That line should not be crossed or erased17. Words and phrases are symbols that stimulate mental references to referents. The object of interpreting a statute is to ascertain the intention of the Legislature enacting it. [See Institute of Chartered Accountants of India v. M/s. Price Waterhouse and Anr., AIR 1998 SC 74 ]. The intention of the Legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence, a construction which requires for its support, addition or substitution of words or which results in rejection of words as meaningless has to be avoided22. We do not find any substance in the plea of learned Counsel for the appellants that the entitlement of the appellants is for 30 years. Admittedly the trees were 12 years old at the time the land were surrendered and, therefore, for the balance 18 years only the appellants will be entitled to at the relevant seignorage rates.
|
Rani Inder Kumari Etc. Etc Vs. State Of Rajasthan & Anr | law, sanad, order, custom or usage in force in any part of the State, all payments of money on account of cash jagirs to which this Act applies, that were being made or enforced at the commencement of this Act, shall be discontinued on and from the 1st day of April 1958 and all such cash jagirs shall stand abolished as from that day.(2) Notwithstanding such discontinuance and abolition the State Government shall continue to make payments by way of compensation in accordance with the scale laid down in the Second Schedule, and the provisions of the Rajasthan Pensions Act, 1958, shall apply to such payments".6. The Second Schedule shows, inter alia, that if the monthly rate of the grant exceeds Rs. 50/- but does not exceed Rs. 250/- the grantee will be paid the compensation for a period of twelve years from the 1st day of April, l958.7. Section 6 (2) which is also under attack provides that nothing in this Act or in the rules made thereunder shall affect such other grants of money as the State Government may, from time to time, by notification in the official Gazette, declare to be exempt from the provisions of this Act, and the provisions of the Rajasthan Pensions Act, 1958, shall apply to such exempted grants of money".8. It is contended on behalf of the petitioners that Section 3 of the Act is violative of Articles 31 and 19 (1) (f) of the Constitution and S. 6 (2) is violative of Article 14 of the Constitution. According to the Petitioners their cases are covered by a decision of this Court in State of Madhya Pradesh v. Ranojirao Shinde, (1968) 3 SCR 489 = (AIR 1968 SC 1053 ) where this Court held the Madhya Pradesh Abolition of Cash Grants Act, 1963, to be violative of Art. 31 (2) or. in the alternative of Article 19 (l) (f) of the Constitution.9. Before we proceed further we have to state that the Petitioners have an insurmountable obstacle to get over in these Petitions. In Madhya Pradesh case (supra) the petitioners therein approached the High Court soon after the promulgation of the particular Act in 1963 and the High Court accepted their contention that the Act was ultra vires of Art. 19 (1) (f) of the Constitution and was not saved by sub- -article (5) thereof. The State of Madhya Pradesh appealed to this Court by a certificate obtained from the High Court under Art. 133 (1) (c) and this Court in the above mentioned decision dismissed the States appeals. In the present case the petitioners took advantage of the provisions of the Act, particularly sub-section (2) of Section 3 by which payments by way of compensation were allowed notwithstanding the abolition of the grant under sub-section (1) of Section 3. So far as the abolition of the cash Jagirs was concerned it was complete on and from the 1st day of April, 1958 under sub-section (1) of Section 3 of the Act. The petitioners had been in enjoyment of the compensation in accordance with the scale laid down in the Second Schedule from the inception of the Act which abolished the cash jagir on and from 1st April, 1958, till 31st March, 1970, and approached this Court under Article 32 of the Constitution on October 12, 1970, when under sub-section (2) of Sec. 3 the compensation was discontinued.10. The petitioners cannot be allowed to blow hot and cold in the same breath. Right to the compensation, of whatever nature or content, flowed from the abolition of the cash jagirs under the Act. Acceptance of the compensation under the Act for the full length of the period of twelve years completely negatives the scope of attack upon the abolition of the grant. The foundation of the compensation is the abolition of the cash jagirs. Section 3 (2) under which the compensation is available is integrally connected with Section 3 (1) which has abolished the cash jagirs from a specified date and it is only on such abolition that compensation is rendered possible. Acceptance of compensation, therefore, gives a quietus to the claim to have the Act adjudged as ultra vires. The petitioners cannot eat a cake and have it. At any rate the petitioners have approached the court after inordinate delay and even then after enjoying the full benefit under the Act. The petitions, therefore, cannot be entertained.11. The petitioners also contend that Section 6 (2) of the Act is discriminatory and is violative of the equality clause under Article 14 of the Constitution. Section 6 is a saving provision. The case of the petitioners is that a good number of persons have been exempted from the operation of the abolition of the grant. It is submitted that while under S. 6 (1) there is guidance with regard to the exemption, there is none whatsoever under Section 6 (2). Whatever the merit of this submission, the petitioners are not going to be benefited by striking down Section 6 (2) of the Act. Assuming it is ultra vires, Section 6 (2) is clearly severable from the rest of the provisions. On the other hand, depending upon this provision, the Petitioners may be able to receive appropriate consideration from the Government to be included. in the list of exemptees. Indeed, Dr. Singhvi, the learned Advocate-General gave us to understand that he would himself recommend the case of three of the petitioners as deserving consideration under Section 6 (2). We do not know whether the other two petitioners may also be able to convince the Government about the merit of their case for equal consideration. We assume that under these provisions the Government has certain principles on which it acts to give relief to the needy. It is, therefore, idle for the petitioners to have a decision from this Court to strike down a provision which may, ultimately be to their aid. We are not, therefore, inclined to pass on this submission advanced by the petitioners. | 0[ds]9. Before we proceed further we have to state that the Petitioners have an insurmountable obstacle to get over in thesethe present case the petitioners took advantage of the provisions of the Act, particularly sub-section (2) of Section 3 by which payments by way of compensation were allowed notwithstanding the abolition of the grant under sub-section (1) of Section 3. So far as the abolition of the cash Jagirs was concerned it was complete on and from the 1st day of April, 1958 under sub-section (1) of Section 3 of the Act. The petitioners had been in enjoyment of the compensation in accordance with the scale laid down in the Second Schedule from the inception of the Act which abolished the cash jagir on and from 1st April, 1958, till 31st March, 1970, and approached this Court under Article 32 of the Constitution on October 12, 1970, when under sub-section (2) of Sec. 3 the compensation was discontinued.10. The petitioners cannot be allowed to blow hot and cold in the same breath. Right to the compensation, of whatever nature or content, flowed from the abolition of the cash jagirs under the Act. Acceptance of the compensation under the Act for the full length of the period of twelve years completely negatives the scope of attack upon the abolition of the grant. The foundation of the compensation is the abolition of the cash jagirs. Section 3 (2) under which the compensation is available is integrally connected with Section 3 (1) which has abolished the cash jagirs from a specified date and it is only on such abolition that compensation is rendered possible. Acceptance of compensation, therefore, gives a quietus to the claim to have the Act adjudged as ultra vires. The petitioners cannot eat a cake and have it. At any rate the petitioners have approached the court after inordinate delay and even then after enjoying the full benefit under the Act. The petitions, therefore, cannot be6 is a saving provision. The case of the petitioners is that a good number of persons have been exempted from the operation of the abolition of the grant. It is submitted that while under S. 6 (1) there is guidance with regard to the exemption, there is none whatsoever under Section 6 (2). Whatever the merit of this submission, the petitioners are not going to be benefited by striking down Section 6 (2) of the Act. Assuming it is ultra vires, Section 6 (2) is clearly severable from the rest of the provisions. On the other hand, depending upon this provision, the Petitioners may be able to receive appropriate consideration from the Government to be included. in the list of exemptees. Indeed, Dr. Singhvi, the learned Advocate-General gave us to understand that he would himself recommend the case of three of the petitioners as deserving consideration under Section 6 (2). We do not know whether the other two petitioners may also be able to convince the Government about the merit of their case for equal consideration. We assume that under these provisions the Government has certain principles on which it acts to give relief to the needy. It is, therefore, idle for the petitioners to have a decision from this Court to strike down a provision which may, ultimately be to their aid. We are not, therefore, inclined to pass on this submission advanced by the petitioners. | 0 | 1,682 | 643 | ### 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:
law, sanad, order, custom or usage in force in any part of the State, all payments of money on account of cash jagirs to which this Act applies, that were being made or enforced at the commencement of this Act, shall be discontinued on and from the 1st day of April 1958 and all such cash jagirs shall stand abolished as from that day.(2) Notwithstanding such discontinuance and abolition the State Government shall continue to make payments by way of compensation in accordance with the scale laid down in the Second Schedule, and the provisions of the Rajasthan Pensions Act, 1958, shall apply to such payments".6. The Second Schedule shows, inter alia, that if the monthly rate of the grant exceeds Rs. 50/- but does not exceed Rs. 250/- the grantee will be paid the compensation for a period of twelve years from the 1st day of April, l958.7. Section 6 (2) which is also under attack provides that nothing in this Act or in the rules made thereunder shall affect such other grants of money as the State Government may, from time to time, by notification in the official Gazette, declare to be exempt from the provisions of this Act, and the provisions of the Rajasthan Pensions Act, 1958, shall apply to such exempted grants of money".8. It is contended on behalf of the petitioners that Section 3 of the Act is violative of Articles 31 and 19 (1) (f) of the Constitution and S. 6 (2) is violative of Article 14 of the Constitution. According to the Petitioners their cases are covered by a decision of this Court in State of Madhya Pradesh v. Ranojirao Shinde, (1968) 3 SCR 489 = (AIR 1968 SC 1053 ) where this Court held the Madhya Pradesh Abolition of Cash Grants Act, 1963, to be violative of Art. 31 (2) or. in the alternative of Article 19 (l) (f) of the Constitution.9. Before we proceed further we have to state that the Petitioners have an insurmountable obstacle to get over in these Petitions. In Madhya Pradesh case (supra) the petitioners therein approached the High Court soon after the promulgation of the particular Act in 1963 and the High Court accepted their contention that the Act was ultra vires of Art. 19 (1) (f) of the Constitution and was not saved by sub- -article (5) thereof. The State of Madhya Pradesh appealed to this Court by a certificate obtained from the High Court under Art. 133 (1) (c) and this Court in the above mentioned decision dismissed the States appeals. In the present case the petitioners took advantage of the provisions of the Act, particularly sub-section (2) of Section 3 by which payments by way of compensation were allowed notwithstanding the abolition of the grant under sub-section (1) of Section 3. So far as the abolition of the cash Jagirs was concerned it was complete on and from the 1st day of April, 1958 under sub-section (1) of Section 3 of the Act. The petitioners had been in enjoyment of the compensation in accordance with the scale laid down in the Second Schedule from the inception of the Act which abolished the cash jagir on and from 1st April, 1958, till 31st March, 1970, and approached this Court under Article 32 of the Constitution on October 12, 1970, when under sub-section (2) of Sec. 3 the compensation was discontinued.10. The petitioners cannot be allowed to blow hot and cold in the same breath. Right to the compensation, of whatever nature or content, flowed from the abolition of the cash jagirs under the Act. Acceptance of the compensation under the Act for the full length of the period of twelve years completely negatives the scope of attack upon the abolition of the grant. The foundation of the compensation is the abolition of the cash jagirs. Section 3 (2) under which the compensation is available is integrally connected with Section 3 (1) which has abolished the cash jagirs from a specified date and it is only on such abolition that compensation is rendered possible. Acceptance of compensation, therefore, gives a quietus to the claim to have the Act adjudged as ultra vires. The petitioners cannot eat a cake and have it. At any rate the petitioners have approached the court after inordinate delay and even then after enjoying the full benefit under the Act. The petitions, therefore, cannot be entertained.11. The petitioners also contend that Section 6 (2) of the Act is discriminatory and is violative of the equality clause under Article 14 of the Constitution. Section 6 is a saving provision. The case of the petitioners is that a good number of persons have been exempted from the operation of the abolition of the grant. It is submitted that while under S. 6 (1) there is guidance with regard to the exemption, there is none whatsoever under Section 6 (2). Whatever the merit of this submission, the petitioners are not going to be benefited by striking down Section 6 (2) of the Act. Assuming it is ultra vires, Section 6 (2) is clearly severable from the rest of the provisions. On the other hand, depending upon this provision, the Petitioners may be able to receive appropriate consideration from the Government to be included. in the list of exemptees. Indeed, Dr. Singhvi, the learned Advocate-General gave us to understand that he would himself recommend the case of three of the petitioners as deserving consideration under Section 6 (2). We do not know whether the other two petitioners may also be able to convince the Government about the merit of their case for equal consideration. We assume that under these provisions the Government has certain principles on which it acts to give relief to the needy. It is, therefore, idle for the petitioners to have a decision from this Court to strike down a provision which may, ultimately be to their aid. We are not, therefore, inclined to pass on this submission advanced by the petitioners.
### Response:
0
### Explanation:
9. Before we proceed further we have to state that the Petitioners have an insurmountable obstacle to get over in thesethe present case the petitioners took advantage of the provisions of the Act, particularly sub-section (2) of Section 3 by which payments by way of compensation were allowed notwithstanding the abolition of the grant under sub-section (1) of Section 3. So far as the abolition of the cash Jagirs was concerned it was complete on and from the 1st day of April, 1958 under sub-section (1) of Section 3 of the Act. The petitioners had been in enjoyment of the compensation in accordance with the scale laid down in the Second Schedule from the inception of the Act which abolished the cash jagir on and from 1st April, 1958, till 31st March, 1970, and approached this Court under Article 32 of the Constitution on October 12, 1970, when under sub-section (2) of Sec. 3 the compensation was discontinued.10. The petitioners cannot be allowed to blow hot and cold in the same breath. Right to the compensation, of whatever nature or content, flowed from the abolition of the cash jagirs under the Act. Acceptance of the compensation under the Act for the full length of the period of twelve years completely negatives the scope of attack upon the abolition of the grant. The foundation of the compensation is the abolition of the cash jagirs. Section 3 (2) under which the compensation is available is integrally connected with Section 3 (1) which has abolished the cash jagirs from a specified date and it is only on such abolition that compensation is rendered possible. Acceptance of compensation, therefore, gives a quietus to the claim to have the Act adjudged as ultra vires. The petitioners cannot eat a cake and have it. At any rate the petitioners have approached the court after inordinate delay and even then after enjoying the full benefit under the Act. The petitions, therefore, cannot be6 is a saving provision. The case of the petitioners is that a good number of persons have been exempted from the operation of the abolition of the grant. It is submitted that while under S. 6 (1) there is guidance with regard to the exemption, there is none whatsoever under Section 6 (2). Whatever the merit of this submission, the petitioners are not going to be benefited by striking down Section 6 (2) of the Act. Assuming it is ultra vires, Section 6 (2) is clearly severable from the rest of the provisions. On the other hand, depending upon this provision, the Petitioners may be able to receive appropriate consideration from the Government to be included. in the list of exemptees. Indeed, Dr. Singhvi, the learned Advocate-General gave us to understand that he would himself recommend the case of three of the petitioners as deserving consideration under Section 6 (2). We do not know whether the other two petitioners may also be able to convince the Government about the merit of their case for equal consideration. We assume that under these provisions the Government has certain principles on which it acts to give relief to the needy. It is, therefore, idle for the petitioners to have a decision from this Court to strike down a provision which may, ultimately be to their aid. We are not, therefore, inclined to pass on this submission advanced by the petitioners.
|
State of Tamilnadu Etc Vs. State of Karnataka and Others | 1959 and held that these provisions were also indicative of the fact that the Tribunal had no power to grant any interim relief of the nature asked for. It was observed in this regard that in case intention of Parliament was that the Tribunal may be able to grant any interim relief without the dispute being referred to the Tribunal, it would have either provided such powers in the Act itself or in the rules framed under the Act, but this has not been done.As regards the second submission the Tribunal held that it was wrong to contend that the State of Tamilnadu was left with no remedy available to it, because it was open for the State of Tamilnadu to approach the Central Government and if the Central Government found that the dispute was connected with or related to the water dispute already referred to the tribunal, it was open to it to refer the said dispute also to the Tribunal in regard to the granting of an interim relief. In the view taken above, the Tribunal was of the opinion that it cannot entertain the applications for the grant of interim reliefs. We have considered the arguments made by Mr.K. Parasaran on behalf of the appellants and Dr. Chitale and Mr. Nariman for the respondents. Learned counsel for the Union Territory of Pondicherry adopted the arguments of Mr. K. Parasaran and learned counsel for the State of Kerala adopted the arguments of Dr. Chitale. A perusal of the order of reference dated 2.6.90 as already extracted above clearly goes to show that the Central Government had referred the water disputes regarding the inter-State river Cauvery and the river valley thereof, emerging from letter dated 6th July, 1986 from the Government of Tamilnadu. Thus all the disputes emerging from letter dated 6th July, 1986 had been referred to the Tribunal. The Tribunal committed a serious error in omitting to read the following important paragraph contained in the aforesaid letter dated 6.7.86: REQUEST FOR EXPEDITIOUS ACTION IN REFERRING THE DISPUTE TO TRIBUNAL: "From 1974-75 onwards, the Government of Karnataka has been impounding all the flows in their reservoirs. Only after their reservoirs are filled up, the surplus flows are let down. The injury inflicted on this State in the past decade due to the unilateral action of Karnataka and the suffering we had in running around for a few TMC of water every time and crops reached the withering stage has been briefly stated in note (Enclosure- XXVIII). It is patent that the Government of Karnataka have badly violated the interstate agreements and caused irrepairable harm to the age old irrigation in this State. Year after year, the realisation at Mettur is falling fast and thousands of acres in our ayacut in the basin are forced to remain fallow. The bulk of the existing ayacut in Tamilnadu concentrated mainly in Thanjavur and Thiruchirappalli districts is already gravely affected in that the cultivation operations are getting long delayed, traditional double crop lands are getting r educed to single crop lands and crops even in the single crop lands are withering and falling for want of adequate wettings at crucial times. We are convinced that the inordinate delay in solving the dispute is taken advantage of by the Government of Karnataka in extending their canal systems and their ayacut in the new projects and every day of delay in adding to the injury caused to our existing irrigation." * The above passage clearly goes to show that the State of Tamilnadu was claiming for an immediate relief as year after year, the realisations at Mettur was falling fast and thousands of acres in their ayacut in the basin were forced to remain fallow. It was specifically mentioned that the inordinate delay in solving the dispute is taken advantage of by the Government of Karnataka in extending their canal systems and their ayacut in the new projects and every day of delay is adding to the injury caused to their existing irrigation. The Tribunal was thus clearly wrong in holding that the Central Government had not made any reference for granting any interim relief. We are not concerned, whether the appellants are entitled or not, for any interim relief on merits, but we are clearly of the view that the reliefs prayed by the appellants in their C.M.P. Nos. 4, 5 and 9 of 1990 clearly come within the purview of the dispute referred by the Central Government under Section 5 of the Act. The Tribunal has not held that it had no incidental and ancillary power for granting an interim relief, but it has refused to entertain the C.M.P. Nos . 4, 5 and 9 on the ground that the reliefs prayed in these applications had not been referred by the Central Government. In view of the above circumstances we think it is not necessary for us to decide in this case, the larger question whether a Tribunal constituted under the Water Disputes Act has any power or not to grant any interim relief. In the present case the appellants become entitled to succeed on the basis of the finding recorded by us in therir favour that the reliefs prayed by them in their C.M.P. Nos. 4, 5 and 9 of 1990 are covered in the reference made b y the Central Government. It may also be noted that at the fag end of the arguments it was submitted before us on behalf of the State of Kanataka that they were agreeable to proceed with the C.M.Ps. on merits before the Tribunal on the terms that all party States agreed that all questions arising out of or connected with or relevant to the water dispute (set out in the respective pleadings of the respective parties), including all applications for interim directions/reliefs by party States be determined by the Tribunal on merits. However, the above terms were not agreeable to the State of Tamilnadu as such we have decided the appeals on merits. | 1[ds]Thus, we hold that this Court is the ultimate interpreter of the provisions of the inter-State Water Disputes Act, 1956 and has an authority to decide the limits, powers and the jurisdiction of the Tribunal constituted under the Act. This Court has not only the power but obligation to decide as to whether the Tribunal has any jurisdiction or not under the Act, to entertain any interim application till it finally decides the dispute referred to it. There is thus no force in the above argument raised by Dr. Y.S. Chitale.We would no w examine the controversies raised on merits in these appeals. It was contended on behalf of the appellants before the Tribunal that it had jurisdiction to entertain these miscellaneous petitions for interim relief. Firstly, for the reason that when the Tribunal while exercising powers of granting interim relief it will be only exercising incidental and ancillary power, as the interim reliefs prayed for arise out of the water dispute which has been referred to the Tribunal. Secondly, under Article 262 of the Constitution of India, once the Parliament has enacted the Act providing for adjudication of a dispute in regard to sharing of water of Cauvery Basin, no other Court in the country has the jurisdiction to grant an interim relief and, as such, the Tribunal has the inherent powers to grant the interim relief, otherwise petitioners shall be left with no remedy for the enforcement of theirare clearly of the view that the reliefs prayed by the appellants in their C.M.P. Nos. 4, 5 and 9 of 1990 clearly come within the purview of the dispute referred by the Central Government under Section 5 of the Act. The Tribunal has not held that it had no incidental and ancillary power for granting an interim relief, but it has refused to entertain the C.M.P. Nos . 4, 5 and 9 on the ground that the reliefs prayed in these applications had not been referred by the Central Government. In view of the above circumstances we think it is not necessary for us to decide in this case, the larger question whether a Tribunal constituted under the Water Disputes Act has any power or not to grant any interim relief. In the present case the appellants become entitled to succeed on the basis of the finding recorded by us in therir favour that the reliefs prayed by them in their C.M.P. Nos. 4, 5 and 9 of 1990 are covered in the reference made b y the Central Government. It may also be noted that at the fag end of the arguments it was submitted before us on behalf of the State of Kanataka that they were agreeable to proceed with the C.M.Ps. on merits before the Tribunal on the terms that all party States agreed that all questions arising out of or connected with or relevant to the water dispute (set out in the respective pleadings of the respective parties), including all applications for interim directions/reliefs by party States be determined by the Tribunal on merits. However, the above terms were not agreeable to the State of Tamilnadu as such we have decided the appeals on merits. | 1 | 4,523 | 573 | ### Instruction:
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1959 and held that these provisions were also indicative of the fact that the Tribunal had no power to grant any interim relief of the nature asked for. It was observed in this regard that in case intention of Parliament was that the Tribunal may be able to grant any interim relief without the dispute being referred to the Tribunal, it would have either provided such powers in the Act itself or in the rules framed under the Act, but this has not been done.As regards the second submission the Tribunal held that it was wrong to contend that the State of Tamilnadu was left with no remedy available to it, because it was open for the State of Tamilnadu to approach the Central Government and if the Central Government found that the dispute was connected with or related to the water dispute already referred to the tribunal, it was open to it to refer the said dispute also to the Tribunal in regard to the granting of an interim relief. In the view taken above, the Tribunal was of the opinion that it cannot entertain the applications for the grant of interim reliefs. We have considered the arguments made by Mr.K. Parasaran on behalf of the appellants and Dr. Chitale and Mr. Nariman for the respondents. Learned counsel for the Union Territory of Pondicherry adopted the arguments of Mr. K. Parasaran and learned counsel for the State of Kerala adopted the arguments of Dr. Chitale. A perusal of the order of reference dated 2.6.90 as already extracted above clearly goes to show that the Central Government had referred the water disputes regarding the inter-State river Cauvery and the river valley thereof, emerging from letter dated 6th July, 1986 from the Government of Tamilnadu. Thus all the disputes emerging from letter dated 6th July, 1986 had been referred to the Tribunal. The Tribunal committed a serious error in omitting to read the following important paragraph contained in the aforesaid letter dated 6.7.86: REQUEST FOR EXPEDITIOUS ACTION IN REFERRING THE DISPUTE TO TRIBUNAL: "From 1974-75 onwards, the Government of Karnataka has been impounding all the flows in their reservoirs. Only after their reservoirs are filled up, the surplus flows are let down. The injury inflicted on this State in the past decade due to the unilateral action of Karnataka and the suffering we had in running around for a few TMC of water every time and crops reached the withering stage has been briefly stated in note (Enclosure- XXVIII). It is patent that the Government of Karnataka have badly violated the interstate agreements and caused irrepairable harm to the age old irrigation in this State. Year after year, the realisation at Mettur is falling fast and thousands of acres in our ayacut in the basin are forced to remain fallow. The bulk of the existing ayacut in Tamilnadu concentrated mainly in Thanjavur and Thiruchirappalli districts is already gravely affected in that the cultivation operations are getting long delayed, traditional double crop lands are getting r educed to single crop lands and crops even in the single crop lands are withering and falling for want of adequate wettings at crucial times. We are convinced that the inordinate delay in solving the dispute is taken advantage of by the Government of Karnataka in extending their canal systems and their ayacut in the new projects and every day of delay in adding to the injury caused to our existing irrigation." * The above passage clearly goes to show that the State of Tamilnadu was claiming for an immediate relief as year after year, the realisations at Mettur was falling fast and thousands of acres in their ayacut in the basin were forced to remain fallow. It was specifically mentioned that the inordinate delay in solving the dispute is taken advantage of by the Government of Karnataka in extending their canal systems and their ayacut in the new projects and every day of delay is adding to the injury caused to their existing irrigation. The Tribunal was thus clearly wrong in holding that the Central Government had not made any reference for granting any interim relief. We are not concerned, whether the appellants are entitled or not, for any interim relief on merits, but we are clearly of the view that the reliefs prayed by the appellants in their C.M.P. Nos. 4, 5 and 9 of 1990 clearly come within the purview of the dispute referred by the Central Government under Section 5 of the Act. The Tribunal has not held that it had no incidental and ancillary power for granting an interim relief, but it has refused to entertain the C.M.P. Nos . 4, 5 and 9 on the ground that the reliefs prayed in these applications had not been referred by the Central Government. In view of the above circumstances we think it is not necessary for us to decide in this case, the larger question whether a Tribunal constituted under the Water Disputes Act has any power or not to grant any interim relief. In the present case the appellants become entitled to succeed on the basis of the finding recorded by us in therir favour that the reliefs prayed by them in their C.M.P. Nos. 4, 5 and 9 of 1990 are covered in the reference made b y the Central Government. It may also be noted that at the fag end of the arguments it was submitted before us on behalf of the State of Kanataka that they were agreeable to proceed with the C.M.Ps. on merits before the Tribunal on the terms that all party States agreed that all questions arising out of or connected with or relevant to the water dispute (set out in the respective pleadings of the respective parties), including all applications for interim directions/reliefs by party States be determined by the Tribunal on merits. However, the above terms were not agreeable to the State of Tamilnadu as such we have decided the appeals on merits.
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1
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Thus, we hold that this Court is the ultimate interpreter of the provisions of the inter-State Water Disputes Act, 1956 and has an authority to decide the limits, powers and the jurisdiction of the Tribunal constituted under the Act. This Court has not only the power but obligation to decide as to whether the Tribunal has any jurisdiction or not under the Act, to entertain any interim application till it finally decides the dispute referred to it. There is thus no force in the above argument raised by Dr. Y.S. Chitale.We would no w examine the controversies raised on merits in these appeals. It was contended on behalf of the appellants before the Tribunal that it had jurisdiction to entertain these miscellaneous petitions for interim relief. Firstly, for the reason that when the Tribunal while exercising powers of granting interim relief it will be only exercising incidental and ancillary power, as the interim reliefs prayed for arise out of the water dispute which has been referred to the Tribunal. Secondly, under Article 262 of the Constitution of India, once the Parliament has enacted the Act providing for adjudication of a dispute in regard to sharing of water of Cauvery Basin, no other Court in the country has the jurisdiction to grant an interim relief and, as such, the Tribunal has the inherent powers to grant the interim relief, otherwise petitioners shall be left with no remedy for the enforcement of theirare clearly of the view that the reliefs prayed by the appellants in their C.M.P. Nos. 4, 5 and 9 of 1990 clearly come within the purview of the dispute referred by the Central Government under Section 5 of the Act. The Tribunal has not held that it had no incidental and ancillary power for granting an interim relief, but it has refused to entertain the C.M.P. Nos . 4, 5 and 9 on the ground that the reliefs prayed in these applications had not been referred by the Central Government. In view of the above circumstances we think it is not necessary for us to decide in this case, the larger question whether a Tribunal constituted under the Water Disputes Act has any power or not to grant any interim relief. In the present case the appellants become entitled to succeed on the basis of the finding recorded by us in therir favour that the reliefs prayed by them in their C.M.P. Nos. 4, 5 and 9 of 1990 are covered in the reference made b y the Central Government. It may also be noted that at the fag end of the arguments it was submitted before us on behalf of the State of Kanataka that they were agreeable to proceed with the C.M.Ps. on merits before the Tribunal on the terms that all party States agreed that all questions arising out of or connected with or relevant to the water dispute (set out in the respective pleadings of the respective parties), including all applications for interim directions/reliefs by party States be determined by the Tribunal on merits. However, the above terms were not agreeable to the State of Tamilnadu as such we have decided the appeals on merits.
|
Vastulal Vs. Pareek Commercial Bank | is not liable to make the repayment or restoration of property. Before the company judge after giving oral evidence it was never represented by Vastulal that he desired to prove that he was not liable to restore the amounts appropriated towards his losses. The High Court, on the materials placed before it, was which the appellant was directed to pay had been misapplied by him to discharge his liability in respect of the transactions of Messrs. B.R.pareek & Sons Ltd. and he was on that account liable to make good the same to the bank0The plea of Vastulal with regard to the sum of Rs. 8, 500 transferred to the account of M/s. Naraindas Aidan, which is the subject-matter of Appeal No. 435 of 1962, is wholly unsubstantial. The liquidators case was that Vastulal was carrying on the business of selling and purchasing shares and securities through M/s. Naraindas Aidan - a firm of stock brokers - and Vastulal transferred to them Rs. Rs. 3, 500 on December 13, 1949, and Rs. 5, 000 on February 3, 1950. It is admitted that both these sums of money belonged to the bank. These amounts were admittedly credited in the account books of the stock brokers in the account of M/s. B.R.Pareek & sons Ltd. and not on the banks account. Vastulal in the first instance submitted that he could not, without looking into the records of the bank, state the purpose for which the two amounts were paid. He then inspected records of the bank and even thereafter he was unable to render any explanation why the two amounts were transferred to the stock brokers on behalf of the bank. The records of the bank do not throw any light on those transfers. It does not appear that the bank had any dealings with M/s. Naraindas Aidan. Tulsidas, a partner of the firm of M/s. Naraindas Aidan was examined as a witness on behalf of the liquidator. He produced all his books of account and stated that his firm had never carried out any transaction on behalf of the bank and that there was no khata in the name of the bank in the firms books of account. He disputed the plea of Vastulal that the amounts were credited in the books of account of the firm as having been paid on behalf of the bank. He produced office copies of the contract notes and statements of account in relation to the transactions contained in the firms books of account, and asserted that the originals had been sent to Vastulal from time to time. He also showed from the books of account that Vastulal had soured heavy losses in share transactions which were carried on through his firm. Vastulal did not produce the books of account of M/s. B.R.Pareek & Sons Ltd., which were admittedly in his possession, nor the statements of account received from M/s. Naraindas Aidan. There is no reference in the books of account of the bank to the purpose for which the two amounts were transferred to M/s. Naraindas Aidan.8. In these circumstances the only conclusion which could be arrived at was that the amounts which belonged to the bank were misapplied by Vastulal for discharging his personal liabilities and they were not appropriated for any purpose of the bankCounsel for the appellant contended that as the amounts which were transferred to the two brokers were by cheques or bills of exchange drawn on other banks in favour of stock brokers, such bills of exchange or cheques being drawn in according to the general practice prevailing in the business community, evidence to prove that the amounts were not paid by the bank or for the purpose of the bank was inadmissible. This argument proceeds upon a misconception of the question in dispute which falls to be determined in these appeals. The amounts of Rs. 18, 500 and Rs. 8, 500 which were transferred to the stock brokers belonged to the bank. This is admitted. It is also common ground that the amounts were transferred under bank drafts or cheques drawn by Vastulal acting on behalf of the bank. The case of the liquidator was that Vastulal, taking advantage of the authority conferred upon him, misappropriated the funds of the bank and utilised the same for his private purposes and was on that account guilty of misfeasance. We fail to appreciate how any question as to admissibility of evidence contrary to the terms of a bill of exchange or a cheque arises in this case. The respective cases before the court were the case of the liquidator who claimed that the funds belonging to the bank had been utilised wrongfully by Vastulal for discharging his personal liabilities to the share brokers and the case of Vastulal, the appellant, in respect of the amounts transferred to M/s. S. Ramdas was that the amount of Rs. 18, 500 was transferred for the purpose of purchasing on behalf of the bank debentures of the Calcutta Electric Supply Co. Ltd.9. In considering this case the court looked at the conduct of Vastulal, the documentary evidence and held that the story of Vastulal that the amount of Rs. 18, 500 was sent for purchasing debentures was untrue. Proof of the case of the liquidator is not prohibited by anything contained in the Negotiable Instruments Act, 1881, or the Indian Companies Act, 1913. Section 27 of the Negotiable Instruments Act on which reliance was placed by the counsel merely deals with the authority of an agent of bind his principal: it does not prohibit proof of the fact that taking wrongful advantage of his authority the agent has misappropriated funds belonging to the principal or true that in drawing the cheques or bank drafts, Vastulal purported to act on behalf of the bank, but in so doing he gave directions for appropriating the property of the bank to his own purposes. Proof of such a case is not prohibited by the Negotiable Instruments Act | 0[ds]which should normally be in the custody of the bank but were produced by Vastulalwere sought to be relied upon in support of the case that the amounts transferred to Messts. S. ramdas were in respect of the order for the purchase of debentures of the Calcutta Electric Supply Co. Ltd. But even these letters do not support his case. The letter dated January 25, 1950, merely acknowledged the receipt of the order for the purchase of debentures worth Rs. 50, 000 but there is no reference to any sums transferred as advance payment on that account. Admittedly, Rs. 17, 500 had been received by Messrs. S. Ramdas before the date of this letter, and if that amount was to be appropriated for the purchase of debentures, some indication in that behalf may have been found recited in the letter. The second letter which is dated February 14, 1950, relates to the cancellation of the order, but even that letter refers to no transfer of funds for the purchase of debentures, nor does it make any reference to the appropriation of the funds already transferred to the brokers for the alleged specific purpose of purchasing the debentures. The books of account of the bank show that it was not the practice of the bank to make advance payment for purchase of stocks, shares or securities: it was only after the stocks were purchased and the bill was submitted that payments were made. No rational explanation has been given by Vastulal as to why a departure was made in respect of this particular transaction for purchase of debentures. The case of Vastulal that the amounts appropriated by Messts. S. Ramdas towards losses in the account of Messrs. B.R. Pareek & sons Ltd. were directed to be appropriated for purchase of debentures of the Calcutta electric Supply Co. Ltd. is not supported by any documentary evidence in the custody of the bankIt was urged by counsel for Vastulal that the entries in the books of account of Messrs. S. Ramdas were not admissible under section 34 of the Evidence Act. But the question as to the admissibility of the books of account was not raised before the company judge.The question whether evidence which is otherwise admissible in law is duly proved and admitted can only be raised at the time when that evidence is tendered and admitted and not at the stage ofIt was in this case contended for the first time in appeal that the entries in the books of account of Messrs. S. Ramdas were not proved by the person who made thoseentries. The learned company judge was, it appears, of the opinion that the entries were duly proved. No objection was raised before him that the entries in the books of account were not proved. It is a settled rule that when evidence which in law is admissible and relevant is admitted in the court of trial without objection, no plea of improper proof will be permitted to be raised in appeal. The entries having been tendered in evidence without objection, the plea raised by counsel was rightly not entertained by the High Court insuch argument was advanced before the appeal court and for very good reasons. Under section45H of the Banking Companiesin so far as it is material, it is provided that when an application is made to the High Court under section 543 of the Companies Act, 1956 (section 235 of the Indian Companies Act, 1913), against any officer of a banking company for repayment or restoration of any money or property and the applicant makes out a prima facie case against such person, the High Court shall make an order against such person to repay and restore the money or property unless he proves that he is not liable to make the repayment or restoration either wholly or in part. It is clear from the scheme of section 45H that once a prima facie case is made out it is for the person proceeded against to prove that he is not liable to make the repayment or restoration of property. Before the company judge after giving oral evidence it was never represented by Vastulal that he desired to prove that he was not liable to restore the amounts appropriated towards his losses. The High Court, on the materials placed before it, was which the appellant was directed to pay had been misapplied by him to discharge his liability in respect of the transactions of Messrs. B.R.pareek & Sons Ltd. and he was on that account liable to make good the same to the bank0The plea of Vastulal with regard to the sum of Rs. 8, 500 transferred to the account of M/s. Naraindas Aidan, which is theof Appeal No. 435 of 1962, is wholly unsubstantial. The liquidators case was that Vastulal was carrying on the business of selling and purchasing shares and securities through M/s. Naraindas Aidana firm of stock brokersand Vastulal transferred to them Rs. Rs. 3, 500 on December 13, 1949, and Rs. 5, 000 on February 3, 1950. It is admitted that both these sums of money belonged to the bank. These amounts were admittedly credited in the account books of the stock brokers in the account of M/s. B.R.Pareek & sons Ltd. and not on the banks account. Vastulal in the first instance submitted that he could not, without looking into the records of the bank, state the purpose for which the two amounts were paid. He then inspected records of the bank and even thereafter he was unable to render any explanation why the two amounts were transferred to the stock brokers on behalf of the bank. The records of the bank do not throw any light on those transfers. It does not appear that the bank had any dealings with M/s. Naraindas Aidan. Tulsidas, a partner of the firm of M/s. Naraindas Aidan was examined as a witness on behalf of the liquidator. He produced all his books of account and stated that his firm had never carried out any transaction on behalf of the bank and that there was no khata in the name of the bank in the firms books of account. He disputed the plea of Vastulal that the amounts were credited in the books of account of the firm as having been paid on behalf of the bank. He produced office copies of the contract notes and statements of account in relation to the transactions contained in the firms books of account, and asserted that the originals had been sent to Vastulal from time to time. He also showed from the books of account that Vastulal had soured heavy losses in share transactions which were carried on through his firm. Vastulal did not produce the books of account of M/s. B.R.Pareek & Sons Ltd., which were admittedly in his possession, nor the statements of account received from M/s. Naraindas Aidan. There is no reference in the books of account of the bank to the purpose for which the two amounts were transferred to M/s. Naraindas Aidan.8. In these circumstances the only conclusion which could be arrived at was that the amounts which belonged to the bank were misapplied by Vastulal for discharging his personal liabilities and they were not appropriated for any purpose of the bankCounsel for the appellant contended that as the amounts which were transferred to the two brokers were by cheques or bills of exchange drawn on other banks in favour of stock brokers, such bills of exchange or cheques being drawn in according to the general practice prevailing in the business community, evidence to prove that the amounts were not paid by the bank or for the purpose of the bank was inadmissible. This argument proceeds upon a misconception of the question in dispute which falls to be determined in these appeals. The amounts of Rs. 18, 500 and Rs. 8, 500 which were transferred to the stock brokers belonged to the bank. This is admitted. It is also common ground that the amounts were transferred under bank drafts or cheques drawn by Vastulal acting on behalf of the bank. The case of the liquidator was that Vastulal, taking advantage of the authority conferred upon him, misappropriated the funds of the bank and utilised the same for his private purposes and was on that account guilty of misfeasance. We fail to appreciate how any question as to admissibility of evidence contrary to the terms of a bill of exchange or a cheque arises in this case. The respective cases before the court were the case of the liquidator who claimed that the funds belonging to the bank had been utilised wrongfully by Vastulal for discharging his personal liabilities to the share brokers and the case of Vastulal, the appellant, in respect of the amounts transferred to M/s. S. Ramdas was that the amount of Rs. 18, 500 was transferred for the purpose of purchasing on behalf of the bank debentures of the Calcutta Electric Supply Co. Ltd.9. In considering this case the court looked at the conduct of Vastulal, the documentary evidence and held that the story of Vastulal that the amount of Rs. 18, 500 was sent for purchasing debentures was untrue. Proof of the case of the liquidator is not prohibited by anything contained in the Negotiable Instruments Act, 1881, or the Indian Companies Act, 1913. Section 27 of the Negotiable Instruments Act on which reliance was placed by the counsel merely deals with the authority of an agent of bind his principal: it does not prohibit proof of the fact that taking wrongful advantage of his authority the agent has misappropriated funds belonging to the principal or true that in drawing the cheques or bank drafts, Vastulal purported to act on behalf of the bank, but in so doing he gave directions for appropriating the property of the bank to his own purposes. Proof of such a case is not prohibited by the Negotiable Instruments | 0 | 3,977 | 1,792 | ### Instruction:
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is not liable to make the repayment or restoration of property. Before the company judge after giving oral evidence it was never represented by Vastulal that he desired to prove that he was not liable to restore the amounts appropriated towards his losses. The High Court, on the materials placed before it, was which the appellant was directed to pay had been misapplied by him to discharge his liability in respect of the transactions of Messrs. B.R.pareek & Sons Ltd. and he was on that account liable to make good the same to the bank0The plea of Vastulal with regard to the sum of Rs. 8, 500 transferred to the account of M/s. Naraindas Aidan, which is the subject-matter of Appeal No. 435 of 1962, is wholly unsubstantial. The liquidators case was that Vastulal was carrying on the business of selling and purchasing shares and securities through M/s. Naraindas Aidan - a firm of stock brokers - and Vastulal transferred to them Rs. Rs. 3, 500 on December 13, 1949, and Rs. 5, 000 on February 3, 1950. It is admitted that both these sums of money belonged to the bank. These amounts were admittedly credited in the account books of the stock brokers in the account of M/s. B.R.Pareek & sons Ltd. and not on the banks account. Vastulal in the first instance submitted that he could not, without looking into the records of the bank, state the purpose for which the two amounts were paid. He then inspected records of the bank and even thereafter he was unable to render any explanation why the two amounts were transferred to the stock brokers on behalf of the bank. The records of the bank do not throw any light on those transfers. It does not appear that the bank had any dealings with M/s. Naraindas Aidan. Tulsidas, a partner of the firm of M/s. Naraindas Aidan was examined as a witness on behalf of the liquidator. He produced all his books of account and stated that his firm had never carried out any transaction on behalf of the bank and that there was no khata in the name of the bank in the firms books of account. He disputed the plea of Vastulal that the amounts were credited in the books of account of the firm as having been paid on behalf of the bank. He produced office copies of the contract notes and statements of account in relation to the transactions contained in the firms books of account, and asserted that the originals had been sent to Vastulal from time to time. He also showed from the books of account that Vastulal had soured heavy losses in share transactions which were carried on through his firm. Vastulal did not produce the books of account of M/s. B.R.Pareek & Sons Ltd., which were admittedly in his possession, nor the statements of account received from M/s. Naraindas Aidan. There is no reference in the books of account of the bank to the purpose for which the two amounts were transferred to M/s. Naraindas Aidan.8. In these circumstances the only conclusion which could be arrived at was that the amounts which belonged to the bank were misapplied by Vastulal for discharging his personal liabilities and they were not appropriated for any purpose of the bankCounsel for the appellant contended that as the amounts which were transferred to the two brokers were by cheques or bills of exchange drawn on other banks in favour of stock brokers, such bills of exchange or cheques being drawn in according to the general practice prevailing in the business community, evidence to prove that the amounts were not paid by the bank or for the purpose of the bank was inadmissible. This argument proceeds upon a misconception of the question in dispute which falls to be determined in these appeals. The amounts of Rs. 18, 500 and Rs. 8, 500 which were transferred to the stock brokers belonged to the bank. This is admitted. It is also common ground that the amounts were transferred under bank drafts or cheques drawn by Vastulal acting on behalf of the bank. The case of the liquidator was that Vastulal, taking advantage of the authority conferred upon him, misappropriated the funds of the bank and utilised the same for his private purposes and was on that account guilty of misfeasance. We fail to appreciate how any question as to admissibility of evidence contrary to the terms of a bill of exchange or a cheque arises in this case. The respective cases before the court were the case of the liquidator who claimed that the funds belonging to the bank had been utilised wrongfully by Vastulal for discharging his personal liabilities to the share brokers and the case of Vastulal, the appellant, in respect of the amounts transferred to M/s. S. Ramdas was that the amount of Rs. 18, 500 was transferred for the purpose of purchasing on behalf of the bank debentures of the Calcutta Electric Supply Co. Ltd.9. In considering this case the court looked at the conduct of Vastulal, the documentary evidence and held that the story of Vastulal that the amount of Rs. 18, 500 was sent for purchasing debentures was untrue. Proof of the case of the liquidator is not prohibited by anything contained in the Negotiable Instruments Act, 1881, or the Indian Companies Act, 1913. Section 27 of the Negotiable Instruments Act on which reliance was placed by the counsel merely deals with the authority of an agent of bind his principal: it does not prohibit proof of the fact that taking wrongful advantage of his authority the agent has misappropriated funds belonging to the principal or true that in drawing the cheques or bank drafts, Vastulal purported to act on behalf of the bank, but in so doing he gave directions for appropriating the property of the bank to his own purposes. Proof of such a case is not prohibited by the Negotiable Instruments Act
### Response:
0
### Explanation:
person proceeded against to prove that he is not liable to make the repayment or restoration of property. Before the company judge after giving oral evidence it was never represented by Vastulal that he desired to prove that he was not liable to restore the amounts appropriated towards his losses. The High Court, on the materials placed before it, was which the appellant was directed to pay had been misapplied by him to discharge his liability in respect of the transactions of Messrs. B.R.pareek & Sons Ltd. and he was on that account liable to make good the same to the bank0The plea of Vastulal with regard to the sum of Rs. 8, 500 transferred to the account of M/s. Naraindas Aidan, which is theof Appeal No. 435 of 1962, is wholly unsubstantial. The liquidators case was that Vastulal was carrying on the business of selling and purchasing shares and securities through M/s. Naraindas Aidana firm of stock brokersand Vastulal transferred to them Rs. Rs. 3, 500 on December 13, 1949, and Rs. 5, 000 on February 3, 1950. It is admitted that both these sums of money belonged to the bank. These amounts were admittedly credited in the account books of the stock brokers in the account of M/s. B.R.Pareek & sons Ltd. and not on the banks account. Vastulal in the first instance submitted that he could not, without looking into the records of the bank, state the purpose for which the two amounts were paid. He then inspected records of the bank and even thereafter he was unable to render any explanation why the two amounts were transferred to the stock brokers on behalf of the bank. The records of the bank do not throw any light on those transfers. It does not appear that the bank had any dealings with M/s. Naraindas Aidan. Tulsidas, a partner of the firm of M/s. Naraindas Aidan was examined as a witness on behalf of the liquidator. He produced all his books of account and stated that his firm had never carried out any transaction on behalf of the bank and that there was no khata in the name of the bank in the firms books of account. He disputed the plea of Vastulal that the amounts were credited in the books of account of the firm as having been paid on behalf of the bank. He produced office copies of the contract notes and statements of account in relation to the transactions contained in the firms books of account, and asserted that the originals had been sent to Vastulal from time to time. He also showed from the books of account that Vastulal had soured heavy losses in share transactions which were carried on through his firm. Vastulal did not produce the books of account of M/s. B.R.Pareek & Sons Ltd., which were admittedly in his possession, nor the statements of account received from M/s. Naraindas Aidan. There is no reference in the books of account of the bank to the purpose for which the two amounts were transferred to M/s. Naraindas Aidan.8. In these circumstances the only conclusion which could be arrived at was that the amounts which belonged to the bank were misapplied by Vastulal for discharging his personal liabilities and they were not appropriated for any purpose of the bankCounsel for the appellant contended that as the amounts which were transferred to the two brokers were by cheques or bills of exchange drawn on other banks in favour of stock brokers, such bills of exchange or cheques being drawn in according to the general practice prevailing in the business community, evidence to prove that the amounts were not paid by the bank or for the purpose of the bank was inadmissible. This argument proceeds upon a misconception of the question in dispute which falls to be determined in these appeals. The amounts of Rs. 18, 500 and Rs. 8, 500 which were transferred to the stock brokers belonged to the bank. This is admitted. It is also common ground that the amounts were transferred under bank drafts or cheques drawn by Vastulal acting on behalf of the bank. The case of the liquidator was that Vastulal, taking advantage of the authority conferred upon him, misappropriated the funds of the bank and utilised the same for his private purposes and was on that account guilty of misfeasance. We fail to appreciate how any question as to admissibility of evidence contrary to the terms of a bill of exchange or a cheque arises in this case. The respective cases before the court were the case of the liquidator who claimed that the funds belonging to the bank had been utilised wrongfully by Vastulal for discharging his personal liabilities to the share brokers and the case of Vastulal, the appellant, in respect of the amounts transferred to M/s. S. Ramdas was that the amount of Rs. 18, 500 was transferred for the purpose of purchasing on behalf of the bank debentures of the Calcutta Electric Supply Co. Ltd.9. In considering this case the court looked at the conduct of Vastulal, the documentary evidence and held that the story of Vastulal that the amount of Rs. 18, 500 was sent for purchasing debentures was untrue. Proof of the case of the liquidator is not prohibited by anything contained in the Negotiable Instruments Act, 1881, or the Indian Companies Act, 1913. Section 27 of the Negotiable Instruments Act on which reliance was placed by the counsel merely deals with the authority of an agent of bind his principal: it does not prohibit proof of the fact that taking wrongful advantage of his authority the agent has misappropriated funds belonging to the principal or true that in drawing the cheques or bank drafts, Vastulal purported to act on behalf of the bank, but in so doing he gave directions for appropriating the property of the bank to his own purposes. Proof of such a case is not prohibited by the Negotiable Instruments
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DR. AKB SADBHAVANA MISSION SCHOOL OF HOMEO PHARMACY Vs. THE SECRETARY, MINISTRY OF AYUSH & ORS | nor shall he publish cases, operations or letters of thanks from patients in non-professional newspapers or journals provided it shall be permissible for him to publish his name in connection with a prospectus or a directors or a technical experts report. 19. When statutory regulations itself prohibit advertisement, there is no occasion for Homeopathic medical practitioners to advertise that they are competent to cure COVID-19 disease. When the Scientists of entire world are engaged in research to find out proper medicine/vaccine for COVID-19, there is no occasion for making any observation as contained in paragraph 14 with regard to Homeopathic medical practitioners. The homeopathy does not cure the disease, but it cures the patients. 20. We have already noticed that the writ petition, which was filed in the Kerala High Court only with a limited relief for issuing direction to respondent to implement the advisory dated 06.03.2020 issued by Ministry of AYUSH, there was no occasion for High Court to make observations and issue direction as it has been made in paragraph 14. 21. We, however, make it clear that what is permissible for Homeopathic medical practitioner in reference to COVID-19 symptomatic and asymptomatic patients is already regulated by the said advisory and guidelines. The Government of India, Ministry of AYUSH has also brought on record the guidelines issued subsequent to 06.03.2020 for Homeopathy medical practitioners for COVID-19, where Homeopathic approach to COVID-19 has been elaborately dealt with. The said guidelines, which has been issued after 04.04.2020 has been brought on the record as Annexure C by the Ministry of AYUSH. The guidelines contained following under the heading Homeopathic approach- Homoeopathic Approach It is advised that before taking up for homoeopathic medicines for prophylaxis, Amelioration and mitigation, physician must acquaint himself of above sections. In case of epidemics or pandemics, first approach is to follow preventive measures and educate people about general measures and to provide such interventions which will keep their immunity enhanced. Homeopathy therefore recommends issuing of public notice for Genus epidemics identified by the designated experts for immunity enhancement and practitioners may suggest the same to the people and as per the Advisory issued by Ministry of AYUSH(6). Second approach is to provide homoeopathic symptomatic mitigation to affected persons. Homoeopathic medicines are also useful in the treatment of communicable diseases like Influenza Like Illness(7) (8), dengue(9), acute encephalitis syndrome(10). Several studies are also published which shows the immune modulatory potential of homoeopathic medicines in preclinical studies (11) (12) (13) (14) (15) (16). These medicines can be prescribed in an integrated manner or standalone depending on the severity on a case to case Therapeutic Aid As a system with wholistic approach medicine were selected based on the presenting signs and symptoms of each patients (17) (18) (19) (20). The medicines given here are suggestive based on their use and studies in the past in diseases of similar presentation like COVID-19 (21) (22) (23). Patients of COVID-19 are to be treated with adjuvant Homoeopathic medicines with the permission from local health authorities and Medical Superintendent of the Hospital. Homoeopathic doctors must follow all preventive measures (using PPEs) as are required for dealing with COVID 19 patients. The remedies according to different stages of disease are given below: Mild Disease (Symptomatic Amelioration and Mitigation Approach): Medicines like Aconite napellus, Arsenicum album, Bryonia alba, Gelsemium sempervirens, Rhus tox. Eupatorium perfoliatum, Ipecacaucunha, Belladonna, Camphora, may be used depending upon the symptoms similarities. Severe disease but not in critical condition: It is defined by following criteria (Dyspnoea, respiratory frequency ≥ 30/min, blood oxygen saturation (SpO2) ≤ 93%, PaO2/FiO2 ratio < 300, and/or lung infiltrates > 50% within 24 to 48 hours)/) Suggested medicines are as adjuvant to Standard Management guidelines in the hospital setting only with the approval of authorities and willingness of the patient/guardian. The prescription is to be given only by institutionally qualified practitioner. Medicines like Phosphorus, Chelidonium, Veratrum Viride, Iodum, Camphora, Cinchona officinalis, Lycopodium, Ars. iod., Antim ars., Stannum met, Carbo veg., can be prescribed on symptomatic indication.Posology The medicine selected for each patient is tailored to person specific, taking into consideration, his/her mental make-up, physical symptoms, and characteristic particulars etc. In case of long term illness, besides the above mentioned factors, age, occupation, previous illnesses and life circumstance unique to that individual irrespective of the disease which he/she is suffering from, are also taken into consideration; thus the dictum Homoeopathy treats the patient but not the disease. After the appropriate medicine is selected, it is essential to decide the requisite potency, dose and repetition which is imperative for optimum response and faster recovery in each case. Different types of potencies such as decimal or centesimal potencies can be employed for treatment as are required for acute diseases. However, selection of potency of the remedy is dependent on various factors like susceptibility of the patient (high or low), type of disease (acute/chronic), seat/ nature and intensity of the disease, stage and duration of the disease and also the previous treatment of the disease(24). 22. The above guidelines make it clear that Homeopathy has been envisaged by the Ministry as the therapeutic aid. 23. The above guidelines refer to Homeopathy medicines as medicines for prophylaxis, Amelioration and mitigation. The guidelines, however, specifically provides that the prescription has to be given only by institutionally qualified practitioners. The High Court in its impugned judgment has not fully comprehended the guidelines dated 06.03.2020 and taking a restricted view of the guidelines and have made observations for taking appropriate actions against the Homeopathic medical practitioners, which cannot be approved. The High Court, however, is right in its observation that no medical practitioner can claim that it can cure COVID-19. There is no such claim in other therapy including allopathy. The High Court is right in observing that no claim for cure can be made in Homeopathy. The Homeopathy is contemplated to be used in preventing and mitigating COVID-19 as is reflected by the advisory and guidelines issued by the Ministry of AYUSH as noticed above. | 0[ds]15. The above clearly indicate that Ministry of AYUSH specifically permits use of Homeopathy for following three ways:-(i) Preventive and prophylactic;(ii) Symptom management of COVID-19 like illness;(iii) Add on interventions to the conventional care17. It is clear from the advisory dated 06.03.2020 and the specific stand taken by the Ministry of AYUSH as contained in paragraph 16 extracted above that Homeopathic medical practitioners are not only confined to prescribe Homeopathic medicines only as immunity booster. The following observations in paragraph 13 by the High Court does not correctly comprehend the guidelines dated 06.03.2020:-13. ……………………………………When the Central as well as State Governments have approved prescription of certain mixtures and tablets, as immunity boosters, qualified medical practitioners in AYUSH can also prescribe the same, but only as immunity boosters.18. The High Court in the impugned judgment has emphasised that if any qualified doctor practising AYUSH medicine, makes any advertisement or prescribes any drugs or medicines, as a cure for COVID-19 disease, except as prescribed in letter dated 6.3.2020, it is open to the authorities to take appropriate action under the provisions of the Disaster Management Act, 2005. Insofar as advertisement by Homeopathic practitioners is concerned, i.e., clearly prohibited by the regulations framed in Section 33 read with Section 24 of Homeopathy Central Council Act, 1973 namely the Homeopathic Practitioners (Professional Conduct, Etiquette and Code of Ethics) Regulations, 1982. The Regulation 6 prohibits advertisement for solicitation of patients personally or advertisement in the newspaper by the Homeopathic practitioners.19. When statutory regulations itself prohibit advertisement, there is no occasion for Homeopathic medical practitioners to advertise that they are competent to cure COVID-19 disease. When the Scientists of entire world are engaged in research to find out proper medicine/vaccine for COVID-19, there is no occasion for making any observation as contained in paragraph 14 with regard to Homeopathic medical practitioners. The homeopathy does not cure the disease, but it cures the patients.20. We have already noticed that the writ petition, which was filed in the Kerala High Court only with a limited relief for issuing direction to respondent to implement the advisory dated 06.03.2020 issued by Ministry of AYUSH, there was no occasion for High Court to make observations and issue direction as it has been made in paragraph 14.21. We, however, make it clear that what is permissible for Homeopathic medical practitioner in reference to COVID-19 symptomatic and asymptomatic patients is already regulated by the said advisory and guidelines. The Government of India, Ministry of AYUSH has also brought on record the guidelines issued subsequent to 06.03.2020 for Homeopathy medical practitioners for COVID-19, where Homeopathic approach to COVID-19 has been elaborately dealt with. The said guidelines, which has been issued after 04.04.2020 has been brought on the record as Annexure C by the Ministry of AYUSH. The guidelines contained following under the heading Homeopathic approach-It is advised that before taking up for homoeopathic medicines for prophylaxis, Amelioration and mitigation, physician must acquaint himself of above sections.In case of epidemics or pandemics, first approach is to follow preventive measures and educate people about general measures and to provide such interventions which will keep their immunity enhanced.Homeopathy therefore recommends issuing of public notice for Genus epidemics identified by the designated experts for immunity enhancement and practitioners may suggest the same to the people and as per the Advisory issued by Ministry of AYUSH(6).Second approach is to provide homoeopathic symptomatic mitigation to affected persons. Homoeopathic medicines are also useful in the treatment of communicable diseases like Influenza Like Illness(7) (8), dengue(9), acute encephalitis syndrome(10). Several studies are also published which shows the immune modulatory potential of homoeopathic medicines in preclinical studies (11) (12) (13) (14) (15) (16). These medicines can be prescribed in an integrated manner or standalone depending on the severity on a case to caseAs a system with wholistic approach medicine were selected based on the presenting signs and symptoms of each patients (17) (18) (19) (20). The medicines given here are suggestive based on their use and studies in the past in diseases of similar presentation like COVID-19 (21) (22) (23). Patients of COVID-19 are to be treated with adjuvant Homoeopathic medicines with the permission from local health authorities and Medical Superintendent of the Hospital. Homoeopathic doctors must follow all preventive measures (using PPEs) as are required for dealing with COVID 19 patients.The remedies according to different stages of disease are given below:Mild Disease (Symptomatic Amelioration and Mitigation Approach):Medicines like Aconite napellus, Arsenicum album, Bryonia alba, Gelsemium sempervirens, Rhus tox. Eupatorium perfoliatum, Ipecacaucunha, Belladonna, Camphora, may be used depending upon the symptoms similarities.Severe disease but not in critical condition:It is defined by following criteria (Dyspnoea, respiratory frequency ≥ 30/min, blood oxygen saturation (SpO2) ≤ 93%, PaO2/FiO2 ratio < 300, and/or lung infiltrates > 50% within 24 to 48 hours)/) Suggested medicines are as adjuvant to Standard Management guidelines in the hospital setting only with the approval of authorities and willingness of the patient/guardian. The prescription is to be given only by institutionally qualified practitioner. Medicines like Phosphorus, Chelidonium, Veratrum Viride, Iodum, Camphora, Cinchona officinalis, Lycopodium, Ars. iod., Antim ars., Stannum met, Carbo veg., can be prescribed on symptomatic indication.PosologyThe medicine selected for each patient is tailored to person specific, taking into consideration, his/her mental make-up, physical symptoms, and characteristic particulars etc. In case of long term illness, besides the above mentioned factors, age, occupation, previous illnesses and life circumstance unique to that individual irrespective of the disease which he/she is suffering from, are also taken into consideration; thus the dictum Homoeopathy treats the patient but not the disease.After the appropriate medicine is selected, it is essential to decide the requisite potency, dose and repetition which is imperative for optimum response and faster recovery in each case. Different types of potencies such as decimal or centesimal potencies can be employed for treatment as are required for acute diseases. However, selection of potency of the remedy is dependent on various factors like susceptibility of the patient (high or low), type of disease (acute/chronic), seat/ nature and intensity of the disease, stage and duration of the disease and also the previous treatment of the disease(24).22. The above guidelines make it clear that Homeopathy has been envisaged by the Ministry as the therapeutic aid.23. The above guidelines refer to Homeopathy medicines as medicines for prophylaxis, Amelioration and mitigation. The guidelines, however, specifically provides that the prescription has to be given only by institutionally qualified practitioners. The High Court in its impugned judgment has not fully comprehended the guidelines dated 06.03.2020 and taking a restricted view of the guidelines and have made observations for taking appropriate actions against the Homeopathic medical practitioners, which cannot be approved. The High Court, however, is right in its observation that no medical practitioner can claim that it can cure COVID-19. There is no such claim in other therapy including allopathy. The High Court is right in observing that no claim for cure can be made in Homeopathy. The Homeopathy is contemplated to be used in preventing and mitigating COVID-19 as is reflected by the advisory and guidelines issued by the Ministry of AYUSH as noticed above. | 0 | 4,192 | 1,382 | ### 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:
nor shall he publish cases, operations or letters of thanks from patients in non-professional newspapers or journals provided it shall be permissible for him to publish his name in connection with a prospectus or a directors or a technical experts report. 19. When statutory regulations itself prohibit advertisement, there is no occasion for Homeopathic medical practitioners to advertise that they are competent to cure COVID-19 disease. When the Scientists of entire world are engaged in research to find out proper medicine/vaccine for COVID-19, there is no occasion for making any observation as contained in paragraph 14 with regard to Homeopathic medical practitioners. The homeopathy does not cure the disease, but it cures the patients. 20. We have already noticed that the writ petition, which was filed in the Kerala High Court only with a limited relief for issuing direction to respondent to implement the advisory dated 06.03.2020 issued by Ministry of AYUSH, there was no occasion for High Court to make observations and issue direction as it has been made in paragraph 14. 21. We, however, make it clear that what is permissible for Homeopathic medical practitioner in reference to COVID-19 symptomatic and asymptomatic patients is already regulated by the said advisory and guidelines. The Government of India, Ministry of AYUSH has also brought on record the guidelines issued subsequent to 06.03.2020 for Homeopathy medical practitioners for COVID-19, where Homeopathic approach to COVID-19 has been elaborately dealt with. The said guidelines, which has been issued after 04.04.2020 has been brought on the record as Annexure C by the Ministry of AYUSH. The guidelines contained following under the heading Homeopathic approach- Homoeopathic Approach It is advised that before taking up for homoeopathic medicines for prophylaxis, Amelioration and mitigation, physician must acquaint himself of above sections. In case of epidemics or pandemics, first approach is to follow preventive measures and educate people about general measures and to provide such interventions which will keep their immunity enhanced. Homeopathy therefore recommends issuing of public notice for Genus epidemics identified by the designated experts for immunity enhancement and practitioners may suggest the same to the people and as per the Advisory issued by Ministry of AYUSH(6). Second approach is to provide homoeopathic symptomatic mitigation to affected persons. Homoeopathic medicines are also useful in the treatment of communicable diseases like Influenza Like Illness(7) (8), dengue(9), acute encephalitis syndrome(10). Several studies are also published which shows the immune modulatory potential of homoeopathic medicines in preclinical studies (11) (12) (13) (14) (15) (16). These medicines can be prescribed in an integrated manner or standalone depending on the severity on a case to case Therapeutic Aid As a system with wholistic approach medicine were selected based on the presenting signs and symptoms of each patients (17) (18) (19) (20). The medicines given here are suggestive based on their use and studies in the past in diseases of similar presentation like COVID-19 (21) (22) (23). Patients of COVID-19 are to be treated with adjuvant Homoeopathic medicines with the permission from local health authorities and Medical Superintendent of the Hospital. Homoeopathic doctors must follow all preventive measures (using PPEs) as are required for dealing with COVID 19 patients. The remedies according to different stages of disease are given below: Mild Disease (Symptomatic Amelioration and Mitigation Approach): Medicines like Aconite napellus, Arsenicum album, Bryonia alba, Gelsemium sempervirens, Rhus tox. Eupatorium perfoliatum, Ipecacaucunha, Belladonna, Camphora, may be used depending upon the symptoms similarities. Severe disease but not in critical condition: It is defined by following criteria (Dyspnoea, respiratory frequency ≥ 30/min, blood oxygen saturation (SpO2) ≤ 93%, PaO2/FiO2 ratio < 300, and/or lung infiltrates > 50% within 24 to 48 hours)/) Suggested medicines are as adjuvant to Standard Management guidelines in the hospital setting only with the approval of authorities and willingness of the patient/guardian. The prescription is to be given only by institutionally qualified practitioner. Medicines like Phosphorus, Chelidonium, Veratrum Viride, Iodum, Camphora, Cinchona officinalis, Lycopodium, Ars. iod., Antim ars., Stannum met, Carbo veg., can be prescribed on symptomatic indication.Posology The medicine selected for each patient is tailored to person specific, taking into consideration, his/her mental make-up, physical symptoms, and characteristic particulars etc. In case of long term illness, besides the above mentioned factors, age, occupation, previous illnesses and life circumstance unique to that individual irrespective of the disease which he/she is suffering from, are also taken into consideration; thus the dictum Homoeopathy treats the patient but not the disease. After the appropriate medicine is selected, it is essential to decide the requisite potency, dose and repetition which is imperative for optimum response and faster recovery in each case. Different types of potencies such as decimal or centesimal potencies can be employed for treatment as are required for acute diseases. However, selection of potency of the remedy is dependent on various factors like susceptibility of the patient (high or low), type of disease (acute/chronic), seat/ nature and intensity of the disease, stage and duration of the disease and also the previous treatment of the disease(24). 22. The above guidelines make it clear that Homeopathy has been envisaged by the Ministry as the therapeutic aid. 23. The above guidelines refer to Homeopathy medicines as medicines for prophylaxis, Amelioration and mitigation. The guidelines, however, specifically provides that the prescription has to be given only by institutionally qualified practitioners. The High Court in its impugned judgment has not fully comprehended the guidelines dated 06.03.2020 and taking a restricted view of the guidelines and have made observations for taking appropriate actions against the Homeopathic medical practitioners, which cannot be approved. The High Court, however, is right in its observation that no medical practitioner can claim that it can cure COVID-19. There is no such claim in other therapy including allopathy. The High Court is right in observing that no claim for cure can be made in Homeopathy. The Homeopathy is contemplated to be used in preventing and mitigating COVID-19 as is reflected by the advisory and guidelines issued by the Ministry of AYUSH as noticed above.
### Response:
0
### Explanation:
the Disaster Management Act, 2005. Insofar as advertisement by Homeopathic practitioners is concerned, i.e., clearly prohibited by the regulations framed in Section 33 read with Section 24 of Homeopathy Central Council Act, 1973 namely the Homeopathic Practitioners (Professional Conduct, Etiquette and Code of Ethics) Regulations, 1982. The Regulation 6 prohibits advertisement for solicitation of patients personally or advertisement in the newspaper by the Homeopathic practitioners.19. When statutory regulations itself prohibit advertisement, there is no occasion for Homeopathic medical practitioners to advertise that they are competent to cure COVID-19 disease. When the Scientists of entire world are engaged in research to find out proper medicine/vaccine for COVID-19, there is no occasion for making any observation as contained in paragraph 14 with regard to Homeopathic medical practitioners. The homeopathy does not cure the disease, but it cures the patients.20. We have already noticed that the writ petition, which was filed in the Kerala High Court only with a limited relief for issuing direction to respondent to implement the advisory dated 06.03.2020 issued by Ministry of AYUSH, there was no occasion for High Court to make observations and issue direction as it has been made in paragraph 14.21. We, however, make it clear that what is permissible for Homeopathic medical practitioner in reference to COVID-19 symptomatic and asymptomatic patients is already regulated by the said advisory and guidelines. The Government of India, Ministry of AYUSH has also brought on record the guidelines issued subsequent to 06.03.2020 for Homeopathy medical practitioners for COVID-19, where Homeopathic approach to COVID-19 has been elaborately dealt with. The said guidelines, which has been issued after 04.04.2020 has been brought on the record as Annexure C by the Ministry of AYUSH. The guidelines contained following under the heading Homeopathic approach-It is advised that before taking up for homoeopathic medicines for prophylaxis, Amelioration and mitigation, physician must acquaint himself of above sections.In case of epidemics or pandemics, first approach is to follow preventive measures and educate people about general measures and to provide such interventions which will keep their immunity enhanced.Homeopathy therefore recommends issuing of public notice for Genus epidemics identified by the designated experts for immunity enhancement and practitioners may suggest the same to the people and as per the Advisory issued by Ministry of AYUSH(6).Second approach is to provide homoeopathic symptomatic mitigation to affected persons. Homoeopathic medicines are also useful in the treatment of communicable diseases like Influenza Like Illness(7) (8), dengue(9), acute encephalitis syndrome(10). Several studies are also published which shows the immune modulatory potential of homoeopathic medicines in preclinical studies (11) (12) (13) (14) (15) (16). These medicines can be prescribed in an integrated manner or standalone depending on the severity on a case to caseAs a system with wholistic approach medicine were selected based on the presenting signs and symptoms of each patients (17) (18) (19) (20). The medicines given here are suggestive based on their use and studies in the past in diseases of similar presentation like COVID-19 (21) (22) (23). Patients of COVID-19 are to be treated with adjuvant Homoeopathic medicines with the permission from local health authorities and Medical Superintendent of the Hospital. Homoeopathic doctors must follow all preventive measures (using PPEs) as are required for dealing with COVID 19 patients.The remedies according to different stages of disease are given below:Mild Disease (Symptomatic Amelioration and Mitigation Approach):Medicines like Aconite napellus, Arsenicum album, Bryonia alba, Gelsemium sempervirens, Rhus tox. Eupatorium perfoliatum, Ipecacaucunha, Belladonna, Camphora, may be used depending upon the symptoms similarities.Severe disease but not in critical condition:It is defined by following criteria (Dyspnoea, respiratory frequency ≥ 30/min, blood oxygen saturation (SpO2) ≤ 93%, PaO2/FiO2 ratio < 300, and/or lung infiltrates > 50% within 24 to 48 hours)/) Suggested medicines are as adjuvant to Standard Management guidelines in the hospital setting only with the approval of authorities and willingness of the patient/guardian. The prescription is to be given only by institutionally qualified practitioner. Medicines like Phosphorus, Chelidonium, Veratrum Viride, Iodum, Camphora, Cinchona officinalis, Lycopodium, Ars. iod., Antim ars., Stannum met, Carbo veg., can be prescribed on symptomatic indication.PosologyThe medicine selected for each patient is tailored to person specific, taking into consideration, his/her mental make-up, physical symptoms, and characteristic particulars etc. In case of long term illness, besides the above mentioned factors, age, occupation, previous illnesses and life circumstance unique to that individual irrespective of the disease which he/she is suffering from, are also taken into consideration; thus the dictum Homoeopathy treats the patient but not the disease.After the appropriate medicine is selected, it is essential to decide the requisite potency, dose and repetition which is imperative for optimum response and faster recovery in each case. Different types of potencies such as decimal or centesimal potencies can be employed for treatment as are required for acute diseases. However, selection of potency of the remedy is dependent on various factors like susceptibility of the patient (high or low), type of disease (acute/chronic), seat/ nature and intensity of the disease, stage and duration of the disease and also the previous treatment of the disease(24).22. The above guidelines make it clear that Homeopathy has been envisaged by the Ministry as the therapeutic aid.23. The above guidelines refer to Homeopathy medicines as medicines for prophylaxis, Amelioration and mitigation. The guidelines, however, specifically provides that the prescription has to be given only by institutionally qualified practitioners. The High Court in its impugned judgment has not fully comprehended the guidelines dated 06.03.2020 and taking a restricted view of the guidelines and have made observations for taking appropriate actions against the Homeopathic medical practitioners, which cannot be approved. The High Court, however, is right in its observation that no medical practitioner can claim that it can cure COVID-19. There is no such claim in other therapy including allopathy. The High Court is right in observing that no claim for cure can be made in Homeopathy. The Homeopathy is contemplated to be used in preventing and mitigating COVID-19 as is reflected by the advisory and guidelines issued by the Ministry of AYUSH as noticed above.
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Indian Iron & Steel Co. Ltd Vs. Biswanath Sonar | agreed period. (4) shows that if land is held beyond the period specified in the lease in writing and if the total period then becomes not less than 12 years, the protection is again obtained. The word "term" thus may indicate a period specified in a lease or a period of occupation according as the context requires. This diversity of meaning is also illustrated by Ss. 7 (2), 8 (1) and 8 (3). 7. We now come to S. 9 which we have already quoted. It begins by excluding any other law or contract of lease from consideration and speaks in the opening part of land held for a term of more than one year but not less than twelve years thereby distinguishing between tenancies on the basis of the length of occupation. As the marginal note says, the section deals with tenancies held for less than twelve years. Clauses (a), (b) and (c) also establish the above meaning because (a) applies to leases in writing for a term of more than one year but less than twelve years, (b) refers to cases in which the occupation is without a lease in writing and (c) refers to cases in which there is a lease in writing but no term is specified. In those cases in which there is no written lease or in which no term is specified in the lease in writing, the opening portion must obviously mean that the land must be held, that is, occupied for more than one year. The difference between Ss 7 and on the one hand and S. 9 on the other lies in the kind of protection afforded. A tenant who has held the land under lease for more than 12 years cannot be ejected at all unless he has used such land in a manner which renders it unfit for use for the purpose of the tenancy, and his interest becomes heritable, transferable and devisable like any other immovable property. A tenant who has held land in occupation for less than 12 years but more than one year can only be ejected by a notice of six months expiring with the end of a year of the tenancy. It is argued that the words "end of a year of tenancy" are inappropriate where the tenancy is from month to month because there is no year of tenancy. Those words no doubt are indicative of a tenancy from year to year but they are not such as to be altogether inapplicable to a tenancy from month to month. What the section contemplates is occupation for more than one year and it says that a tenant who has held the land for more than a year albeit on a tenancy from month to month, shall only be evicted on the anniversary of the day on which his tenancy commences. Where the tenancy is from month to month, "year" means a period of twelve months and the tenant may only be required to quit at the expiry of the whole year that is to say. on the anniversary of the commencement of the lease. 8. It is argued that this would have the effect of converting the tenancy from month to month into a tenancy from year to year. This is perhaps true. In the matter of certain rights of the tenants, particularly in the matter of termination of their tenancy by notice, it appears that this legislation intends to bring even a monthly tenant, who has occupied land for more than a year, within the protection of six months notice before he is evicted. A different protection is given to a tenant who occupies land for 12 years and in that case he cannot be evicted even by notice unless he uses the land in a manner which renders it unfit for the purposes of the tenancy or his other property goes to Government and his interest in the land is extinguished. 9. Section 9 (1) (iii) was interpreted in much the same way in the three decisions of the High Court of Calcutta above referred to and in our judgment those cases took the right view of the matter. The Company itself served a notice in June expiring with the end of the year alleging that the tenancy had commenced in December 1938 indicating quite plainly that it also considered that a notice of 15 days expiring with the end of the month of the tenancy would not be sufficient. In its view also the notice to be a valid notice had to be of six months expiring with the end of the year of tenancy. Therefore, the notice was despatched on the 28th of June, 1950 and was served on the following day. It asked the tenant to quit at the end of December, 1950. The High Court held that the tenancy must be deemed to have commenced on December 1, 1938 and the notice fell short of six months. Intact, the notice would fall short of the necessary period unless the tenancy had commenced on a date between the 29th and 31st December, 1938. There is no proof when the tenancy really commenced and the Company has not cared to give evidence on this part of the case. Even if we reject the finding of the High Court that the tenancy commenced on the 1st of December, we are not in a position to say that it commenced on any particular date. We are, however, relieved of the trouble to make the effort because the account books of the Company show that the tenant was on the land even in November and had paid rent. In view of this and in view of the construction we have placed on S. 9 (1) (iii) it is quite plain that the notice must fall short of the statutory six mouths. It was therefore, quite ineffective and the High Court was right in holding that it was invalid although our reasons are different. | 0[ds]6. A bare perusal of these enactment is sufficient to show that the word "term" used for the first time in (3) indicates that the period of occupation must not be less than 12 years. It cannot-mean an agreed period because the latter part says that this applies where "no term" is specified in the lease and in this part the word "term" must obviously mean an agreed period. (4) shows that if land is held beyond the period specified in the lease in writing and if the total period then becomes not less than 12 years, the protection is again obtained. The word "term" thus may indicate a period specified in a lease or a period of occupation according as the context requires. This diversity of meaning is also illustrated by Ss. 7 (2), 8 (1) and 8 (3)7. We now come to S. 9 which we have already quoted. It begins by excluding any other law or contract of lease from consideration and speaks in the opening part of land held for a term of more than one year but not less than twelve years thereby distinguishing between tenancies on the basis of the length of occupation. As the marginal note says, the section deals with tenancies held for less than twelve years. Clauses (a), (b) and (c) also establish the above meaning because (a) applies to leases in writing for a term of more than one year but less than twelve years, (b) refers to cases in which the occupation is without a lease in writing and (c) refers to cases in which there is a lease in writing but no term is specified. In those cases in which there is no written lease or in which no term is specified in the lease in writing, the opening portion must obviously mean that the land must be held, that is, occupied for more than one year. The difference between Ss 7 and on the one hand and S. 9 on the other lies in the kind of protection afforded. A tenant who has held the land under lease for more than 12 years cannot be ejected at all unless he has used such land in a manner which renders it unfit for use for the purpose of the tenancy, and his interest becomes heritable, transferable and devisable like any other immovable property. A tenant who has held land in occupation for less than 12 years but more than one year can only be ejected by a notice of six months expiring with the end of a year of the tenancy. It is argued that the words "end of a year of tenancy" are inappropriate where the tenancy is from month to month because there is no year of tenancy. Those words no doubt are indicative of a tenancy from year to year but they are not such as to be altogether inapplicable to a tenancy from month to month. What the section contemplates is occupation for more than one year and it says that a tenant who has held the land for more than a year albeit on a tenancy from month to month, shall only be evicted on the anniversary of the day on which his tenancy commences. Where the tenancy is from month to month, "year" means a period of twelve months and the tenant may only be required to quit at the expiry of the whole year that is to say. on the anniversary of the commencement of the lease8. It is argued that this would have the effect of converting the tenancy from month to month into a tenancy from year to year. This is perhaps true. In the matter of certain rights of the tenants, particularly in the matter of termination of their tenancy by notice, it appears that this legislation intends to bring even a monthly tenant, who has occupied land for more than a year, within the protection of six months notice before he is evicted. A different protection is given to a tenant who occupies land for 12 years and in that case he cannot be evicted even by notice unless he uses the land in a manner which renders it unfit for the purposes of the tenancy or his other property goes to Government and his interest in the land is extinguished9. Section 9 (1) (iii) was interpreted in much the same way in the three decisions of the High Court of Calcutta above referred to and in our judgment those cases took the right view of the matter. The Company itself served a notice in June expiring with the end of the year alleging that the tenancy had commenced in December 1938 indicating quite plainly that it also considered that a notice of 15 days expiring with the end of the month of the tenancy would not be sufficient. In its view also the notice to be a valid notice had to be of six months expiring with the end of the year of tenancy. Therefore, the notice was despatched on the 28th of June, 1950 and was served on the following day. It asked the tenant to quit at the end of December, 1950. The High Court held that the tenancy must be deemed to have commenced on December 1, 1938 and the notice fell short of six months. Intact, the notice would fall short of the necessary period unless the tenancy had commenced on a date between the 29th and 31st December, 1938. There is no proof when the tenancy really commenced and the Company has not cared to give evidence on this part of the case. Even if we reject the finding of the High Court that the tenancy commenced on the 1st of December, we are not in a position to say that it commenced on any particular date. We are, however, relieved of the trouble to make the effort because the account books of the Company show that the tenant was on the land even in November and had paid rent. In view of this and in view of the construction we have placed on S. 9 (1) (iii) it is quite plain that the notice must fall short of the statutory six mouths. It was therefore, quite ineffective and the High Court was right in holding that it was invalid although our reasons are different3. The construction of the first phrase is rendered difficult because the Act does not use the words strictly in the same sense throughout. Sometimes the word "term" is used to indicate a period of time without any reference to a contract determining it and sometimes to a period settled, agreed or determined by a contract. In S. 9 (1) (iii) the word "term" is used and the question arises whether it indicates a period of occupation or a period agreed upon in a contract. To determine the right meaning we shall first analyse the provisions of the Act generally and then consider what is the true meaning of the two expressions in S. 9 on which there has been a difference of opinion between the High Court and the two courts below. | 0 | 3,245 | 1,322 | ### Instruction:
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agreed period. (4) shows that if land is held beyond the period specified in the lease in writing and if the total period then becomes not less than 12 years, the protection is again obtained. The word "term" thus may indicate a period specified in a lease or a period of occupation according as the context requires. This diversity of meaning is also illustrated by Ss. 7 (2), 8 (1) and 8 (3). 7. We now come to S. 9 which we have already quoted. It begins by excluding any other law or contract of lease from consideration and speaks in the opening part of land held for a term of more than one year but not less than twelve years thereby distinguishing between tenancies on the basis of the length of occupation. As the marginal note says, the section deals with tenancies held for less than twelve years. Clauses (a), (b) and (c) also establish the above meaning because (a) applies to leases in writing for a term of more than one year but less than twelve years, (b) refers to cases in which the occupation is without a lease in writing and (c) refers to cases in which there is a lease in writing but no term is specified. In those cases in which there is no written lease or in which no term is specified in the lease in writing, the opening portion must obviously mean that the land must be held, that is, occupied for more than one year. The difference between Ss 7 and on the one hand and S. 9 on the other lies in the kind of protection afforded. A tenant who has held the land under lease for more than 12 years cannot be ejected at all unless he has used such land in a manner which renders it unfit for use for the purpose of the tenancy, and his interest becomes heritable, transferable and devisable like any other immovable property. A tenant who has held land in occupation for less than 12 years but more than one year can only be ejected by a notice of six months expiring with the end of a year of the tenancy. It is argued that the words "end of a year of tenancy" are inappropriate where the tenancy is from month to month because there is no year of tenancy. Those words no doubt are indicative of a tenancy from year to year but they are not such as to be altogether inapplicable to a tenancy from month to month. What the section contemplates is occupation for more than one year and it says that a tenant who has held the land for more than a year albeit on a tenancy from month to month, shall only be evicted on the anniversary of the day on which his tenancy commences. Where the tenancy is from month to month, "year" means a period of twelve months and the tenant may only be required to quit at the expiry of the whole year that is to say. on the anniversary of the commencement of the lease. 8. It is argued that this would have the effect of converting the tenancy from month to month into a tenancy from year to year. This is perhaps true. In the matter of certain rights of the tenants, particularly in the matter of termination of their tenancy by notice, it appears that this legislation intends to bring even a monthly tenant, who has occupied land for more than a year, within the protection of six months notice before he is evicted. A different protection is given to a tenant who occupies land for 12 years and in that case he cannot be evicted even by notice unless he uses the land in a manner which renders it unfit for the purposes of the tenancy or his other property goes to Government and his interest in the land is extinguished. 9. Section 9 (1) (iii) was interpreted in much the same way in the three decisions of the High Court of Calcutta above referred to and in our judgment those cases took the right view of the matter. The Company itself served a notice in June expiring with the end of the year alleging that the tenancy had commenced in December 1938 indicating quite plainly that it also considered that a notice of 15 days expiring with the end of the month of the tenancy would not be sufficient. In its view also the notice to be a valid notice had to be of six months expiring with the end of the year of tenancy. Therefore, the notice was despatched on the 28th of June, 1950 and was served on the following day. It asked the tenant to quit at the end of December, 1950. The High Court held that the tenancy must be deemed to have commenced on December 1, 1938 and the notice fell short of six months. Intact, the notice would fall short of the necessary period unless the tenancy had commenced on a date between the 29th and 31st December, 1938. There is no proof when the tenancy really commenced and the Company has not cared to give evidence on this part of the case. Even if we reject the finding of the High Court that the tenancy commenced on the 1st of December, we are not in a position to say that it commenced on any particular date. We are, however, relieved of the trouble to make the effort because the account books of the Company show that the tenant was on the land even in November and had paid rent. In view of this and in view of the construction we have placed on S. 9 (1) (iii) it is quite plain that the notice must fall short of the statutory six mouths. It was therefore, quite ineffective and the High Court was right in holding that it was invalid although our reasons are different.
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length of occupation. As the marginal note says, the section deals with tenancies held for less than twelve years. Clauses (a), (b) and (c) also establish the above meaning because (a) applies to leases in writing for a term of more than one year but less than twelve years, (b) refers to cases in which the occupation is without a lease in writing and (c) refers to cases in which there is a lease in writing but no term is specified. In those cases in which there is no written lease or in which no term is specified in the lease in writing, the opening portion must obviously mean that the land must be held, that is, occupied for more than one year. The difference between Ss 7 and on the one hand and S. 9 on the other lies in the kind of protection afforded. A tenant who has held the land under lease for more than 12 years cannot be ejected at all unless he has used such land in a manner which renders it unfit for use for the purpose of the tenancy, and his interest becomes heritable, transferable and devisable like any other immovable property. A tenant who has held land in occupation for less than 12 years but more than one year can only be ejected by a notice of six months expiring with the end of a year of the tenancy. It is argued that the words "end of a year of tenancy" are inappropriate where the tenancy is from month to month because there is no year of tenancy. Those words no doubt are indicative of a tenancy from year to year but they are not such as to be altogether inapplicable to a tenancy from month to month. What the section contemplates is occupation for more than one year and it says that a tenant who has held the land for more than a year albeit on a tenancy from month to month, shall only be evicted on the anniversary of the day on which his tenancy commences. Where the tenancy is from month to month, "year" means a period of twelve months and the tenant may only be required to quit at the expiry of the whole year that is to say. on the anniversary of the commencement of the lease8. It is argued that this would have the effect of converting the tenancy from month to month into a tenancy from year to year. This is perhaps true. In the matter of certain rights of the tenants, particularly in the matter of termination of their tenancy by notice, it appears that this legislation intends to bring even a monthly tenant, who has occupied land for more than a year, within the protection of six months notice before he is evicted. A different protection is given to a tenant who occupies land for 12 years and in that case he cannot be evicted even by notice unless he uses the land in a manner which renders it unfit for the purposes of the tenancy or his other property goes to Government and his interest in the land is extinguished9. Section 9 (1) (iii) was interpreted in much the same way in the three decisions of the High Court of Calcutta above referred to and in our judgment those cases took the right view of the matter. The Company itself served a notice in June expiring with the end of the year alleging that the tenancy had commenced in December 1938 indicating quite plainly that it also considered that a notice of 15 days expiring with the end of the month of the tenancy would not be sufficient. In its view also the notice to be a valid notice had to be of six months expiring with the end of the year of tenancy. Therefore, the notice was despatched on the 28th of June, 1950 and was served on the following day. It asked the tenant to quit at the end of December, 1950. The High Court held that the tenancy must be deemed to have commenced on December 1, 1938 and the notice fell short of six months. Intact, the notice would fall short of the necessary period unless the tenancy had commenced on a date between the 29th and 31st December, 1938. There is no proof when the tenancy really commenced and the Company has not cared to give evidence on this part of the case. Even if we reject the finding of the High Court that the tenancy commenced on the 1st of December, we are not in a position to say that it commenced on any particular date. We are, however, relieved of the trouble to make the effort because the account books of the Company show that the tenant was on the land even in November and had paid rent. In view of this and in view of the construction we have placed on S. 9 (1) (iii) it is quite plain that the notice must fall short of the statutory six mouths. It was therefore, quite ineffective and the High Court was right in holding that it was invalid although our reasons are different3. The construction of the first phrase is rendered difficult because the Act does not use the words strictly in the same sense throughout. Sometimes the word "term" is used to indicate a period of time without any reference to a contract determining it and sometimes to a period settled, agreed or determined by a contract. In S. 9 (1) (iii) the word "term" is used and the question arises whether it indicates a period of occupation or a period agreed upon in a contract. To determine the right meaning we shall first analyse the provisions of the Act generally and then consider what is the true meaning of the two expressions in S. 9 on which there has been a difference of opinion between the High Court and the two courts below.
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Union Of India And Another Vs. Ladu Lal Jain | v. The Hospital Mazdoor Sabha,(1960) 2 SCR 866 : (AIR 1960 SC 610 ) the question was whether the relevant provisions of the Industrial Disputes Act, 1947, applied to the group of hospitals run by the State of Bombay and whether they are "industry" within the meaning of the Act. The decision of the question depended on the interpretation of the definition of industry prescribed by S 2 (j) of the Act. This section provides that industry means any business, trade, undertaking etc, of employers. In considering the question it became necessary to enquire whether that activity, i. e. the running of the hospitals, would be an undertaking if it is carried on by a private citizens or group of private citizens, It was held that if a hospital is run by private citizens for profit, it would be an undertaking very much like the trade or business in their conventional sense. It was observed at p. 878 (of SCR): (at pp.615-616 of AIR);"Thus the character of the activity involved in running a hospital brings the institution of the hospital within S.2 (j) Does it make any difference that the hospital is run by the Government in the interpretation of the word undertaking in S. 2 (j)? In our opinion, the answer to this question must be in the negative. It is the character of the activity which decides the question as to whether the activity in question attracts the provision of S. 2 (j); who conducts the activity and whether it is conducted for profit or not do not make a material difference. To similar effect were the observations in the Corporation of the City of Nagpur v. Its Employees," (1960) 2 SCR 942 at p. 962: (AIR 1960 SC 675 at p. 684)where it was said:"If a service rendered by an individual or a private person would be an industry, it would equally be an industry in the hands of a corporation."It was earlier said at p. 960 (of SCR); (at p.683 of AIR);"Monetary consideration for service is, therefore, not an essential characteristic of industry in a modern State.""Barring the regal functions of a municipality, if such other activities of it, if undertaken by an individual, would be industry, then they would equally be industry in the hands of a municipality."13. Lastly, in Satya Narain v. District Engineer, P.W.D. AIR 1962 SC 1161 the question for determination was whether plying motor buses by the Government by way of commercial activity amounts to its running it on a public service. In determining this question, this Court observed at p. 1163:"It is undoubtedly not easy to define what is public service and each activity has to be considered by itself for deciding whether it is carried on as a public service or not. Certain activities will undoubtedly be regarded as public services, as for instance, those undertaking in the exercise of the sovereign power of the State or of government functions. About these there can be no doubt. Similarly a pure business undertaking though run by the Government cannot be classified as public service. But where a particular activity concerns a public utility a question may arise whether it falls in the first or the second category. The mere fact that that activity may be useful to the public would not necessarily render it public service. An activity however beneficial to the people and however useful cannot in our opinion, be reasonably regarded as public service if it is of a type which may be earned on by private individuals and is carried on by Government with a distinct profit motive. It may be that plying stage carriage buses even through for hire is an activity undertaken by the Government for ensuring the people a cheap, regular and reliable mode of transport and is in that sense beneficial to the public. It does not, however, cease to be a commercial activity if it is run with profit motive. Indeed even private operators in order to attract custom are also interested in providing the same facilities to the public as the Government undertaking provides. Since that is so, it is difficult to see what difference there is between the activity carried on by private industrials and that carried on only Government. By reason of the fact that a commercial undertaking is owned and run by the State it does not ipso facto become a "public service."This case simply held that commercial activity carried on with profit motive cannot be held to be public service. It does not hold that such activity carried on by Government will not be business if conducted without profit motive.14. We are of opinion that profit element is not a necessary ingredient of carrying on business, though usually business is carried on for profit. It is to be presumed that the Railways are run on a profit, though it may be that occasionally they are run at a loss.15. The case reported as Director of Rationing and Distribution v. The Corporation of Calcutta, (1961) I SCR 158: (AIR 1960 SC 1955) relied on for the appellants is really of no help to them. It was in connection with the sovereign activities of the State that it was said that the State was not bound by any statute unless the statute provided to that effect in express terms or by necessary implication. The contention that the Government could not get the benefit of this law in connection with its business activities was neither repelled nor considered. It was held to have no foundation as there was nothing on the record that the Food Department of the Government of West Bengal by undertaking rationing and distribution of food on a rational basis had embarked upon any trade or business and, in the absence of any such indication, it appeared that the department was discharging the elementary duty of a sovereign to ensure proper and equitable distribution of available food stuffs with a view to maintaining peace and good government. | 0[ds]2. The contention of the appellants is that this view of the Subordinate Judge, confirmed by the High Court, is wrong.We are of opinion that profit element is not a necessary ingredient of carrying on business, though usually business is carried on for profit. It is to be presumed that the Railways are run on a profit, though it may be that occasionally they are run at a loss.15. The case reported as Director of Rationing and Distribution v. The Corporation of Calcutta, (1961) I SCR 158: (AIR 1960 SC 1955) relied on for the appellants is really of no help to them. It was in connection with the sovereign activities of the State that it was said that the State was not bound by any statute unless the statute provided to that effect in express terms or by necessary implication. The contention that the Government could not get the benefit of this law in connection with its business activities was neither repelled nor considered. It was held to have no foundation as there was nothing on the record that the Food Department of the Government of West Bengal by undertaking rationing and distribution of food on a rational basis had embarked upon any trade or business and, in the absence of any such indication, it appeared that the department was discharging the elementary duty of a sovereign to ensure proper and equitable distribution of available food stuffs with a view to maintaining peace and good government. | 0 | 2,669 | 270 | ### Instruction:
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v. The Hospital Mazdoor Sabha,(1960) 2 SCR 866 : (AIR 1960 SC 610 ) the question was whether the relevant provisions of the Industrial Disputes Act, 1947, applied to the group of hospitals run by the State of Bombay and whether they are "industry" within the meaning of the Act. The decision of the question depended on the interpretation of the definition of industry prescribed by S 2 (j) of the Act. This section provides that industry means any business, trade, undertaking etc, of employers. In considering the question it became necessary to enquire whether that activity, i. e. the running of the hospitals, would be an undertaking if it is carried on by a private citizens or group of private citizens, It was held that if a hospital is run by private citizens for profit, it would be an undertaking very much like the trade or business in their conventional sense. It was observed at p. 878 (of SCR): (at pp.615-616 of AIR);"Thus the character of the activity involved in running a hospital brings the institution of the hospital within S.2 (j) Does it make any difference that the hospital is run by the Government in the interpretation of the word undertaking in S. 2 (j)? In our opinion, the answer to this question must be in the negative. It is the character of the activity which decides the question as to whether the activity in question attracts the provision of S. 2 (j); who conducts the activity and whether it is conducted for profit or not do not make a material difference. To similar effect were the observations in the Corporation of the City of Nagpur v. Its Employees," (1960) 2 SCR 942 at p. 962: (AIR 1960 SC 675 at p. 684)where it was said:"If a service rendered by an individual or a private person would be an industry, it would equally be an industry in the hands of a corporation."It was earlier said at p. 960 (of SCR); (at p.683 of AIR);"Monetary consideration for service is, therefore, not an essential characteristic of industry in a modern State.""Barring the regal functions of a municipality, if such other activities of it, if undertaken by an individual, would be industry, then they would equally be industry in the hands of a municipality."13. Lastly, in Satya Narain v. District Engineer, P.W.D. AIR 1962 SC 1161 the question for determination was whether plying motor buses by the Government by way of commercial activity amounts to its running it on a public service. In determining this question, this Court observed at p. 1163:"It is undoubtedly not easy to define what is public service and each activity has to be considered by itself for deciding whether it is carried on as a public service or not. Certain activities will undoubtedly be regarded as public services, as for instance, those undertaking in the exercise of the sovereign power of the State or of government functions. About these there can be no doubt. Similarly a pure business undertaking though run by the Government cannot be classified as public service. But where a particular activity concerns a public utility a question may arise whether it falls in the first or the second category. The mere fact that that activity may be useful to the public would not necessarily render it public service. An activity however beneficial to the people and however useful cannot in our opinion, be reasonably regarded as public service if it is of a type which may be earned on by private individuals and is carried on by Government with a distinct profit motive. It may be that plying stage carriage buses even through for hire is an activity undertaken by the Government for ensuring the people a cheap, regular and reliable mode of transport and is in that sense beneficial to the public. It does not, however, cease to be a commercial activity if it is run with profit motive. Indeed even private operators in order to attract custom are also interested in providing the same facilities to the public as the Government undertaking provides. Since that is so, it is difficult to see what difference there is between the activity carried on by private industrials and that carried on only Government. By reason of the fact that a commercial undertaking is owned and run by the State it does not ipso facto become a "public service."This case simply held that commercial activity carried on with profit motive cannot be held to be public service. It does not hold that such activity carried on by Government will not be business if conducted without profit motive.14. We are of opinion that profit element is not a necessary ingredient of carrying on business, though usually business is carried on for profit. It is to be presumed that the Railways are run on a profit, though it may be that occasionally they are run at a loss.15. The case reported as Director of Rationing and Distribution v. The Corporation of Calcutta, (1961) I SCR 158: (AIR 1960 SC 1955) relied on for the appellants is really of no help to them. It was in connection with the sovereign activities of the State that it was said that the State was not bound by any statute unless the statute provided to that effect in express terms or by necessary implication. The contention that the Government could not get the benefit of this law in connection with its business activities was neither repelled nor considered. It was held to have no foundation as there was nothing on the record that the Food Department of the Government of West Bengal by undertaking rationing and distribution of food on a rational basis had embarked upon any trade or business and, in the absence of any such indication, it appeared that the department was discharging the elementary duty of a sovereign to ensure proper and equitable distribution of available food stuffs with a view to maintaining peace and good government.
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2. The contention of the appellants is that this view of the Subordinate Judge, confirmed by the High Court, is wrong.We are of opinion that profit element is not a necessary ingredient of carrying on business, though usually business is carried on for profit. It is to be presumed that the Railways are run on a profit, though it may be that occasionally they are run at a loss.15. The case reported as Director of Rationing and Distribution v. The Corporation of Calcutta, (1961) I SCR 158: (AIR 1960 SC 1955) relied on for the appellants is really of no help to them. It was in connection with the sovereign activities of the State that it was said that the State was not bound by any statute unless the statute provided to that effect in express terms or by necessary implication. The contention that the Government could not get the benefit of this law in connection with its business activities was neither repelled nor considered. It was held to have no foundation as there was nothing on the record that the Food Department of the Government of West Bengal by undertaking rationing and distribution of food on a rational basis had embarked upon any trade or business and, in the absence of any such indication, it appeared that the department was discharging the elementary duty of a sovereign to ensure proper and equitable distribution of available food stuffs with a view to maintaining peace and good government.
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M/s. Duro Felguera, S.A Vs. M/s. Gangavaram Port Limited | the priority of the documents indicated thereon. Mere reference to Original Package No.4 Tender Document in the sequence of priority of documents (as serial No.4) indicates that the documents Original Package No. 4 TD containing arbitration clause was not intended to be incorporated in its entirety but only to have clarity in priority of the documents in execution of the work. Be it noted that Original Package No.4 TD occurs as Serial No.4 in sequence, after three other documents viz...,"(i) Annexure 1 to the Letter of Award issued for Package No. 4 Contract; and (ii) Annexure III to the Letter of Award issued for Packages No. 4, 6, 7, 8 and 9 contracts; and (iii) Clarifications/Addendums No.1 to 4 (in the descending order) issued by the Employer to the Original Package No. 4 Tender Document."There are a number of contract agreements between the parties - GPL, Duro Felguera and FGI. It is pertinent to note that MoU dated 11.08.2012 itself does not contain an arbitration clause. When reference is made to the priority of documents to have clarity in execution of the work, such general reference to Original Package No.4 Tender Document will not be sufficient to hold that the arbitration clause 20.6 in the Original Package No.4 TD is incorporated in the MoU.36. The submission of GPL is that since reference to Original Package No.4 TD is made in MoU, the arbitration clause is incorporated in the MoU and there has to be a composite reference for settling the disputes under different contracts by constitution of single arbitral tribunal for dealing with the international commercial arbitration. As discussed earlier, as per the amended provision of sub-section (6A) of Section 11, the power of the court is only to examine the existence of arbitration agreement. When there are five separate contracts each having independent existence with separate arbitration clauses that is New Package No.4 (with foreign company Duro Felguera) and Packages No. 6, 7, 8 and 9 [with Indian subsidiary (FGI)] based on MoU and Corporate Guarantee, there cannot be a single arbitral tribunal for "International Commercial Arbitration".37. It was submitted that if the request of GPL is accepted and all Packages are considered under the same reference, they shall be treated as international commercial arbitrations, then FGI may lose the opportunity of challenging the award under Section 34(2A) of the Act. In response to the above submission, GPL offered to concede and submitted that Section 34 (2A) of the Act may be invoked by Indian subsidiary-FGI, though Section 34(2A) is not applicable to international commercial arbitration. Such a concession is against the provisions and specific mandate of legislature and cannot be accepted.38. The Corporate Guarantee dated 17.03.2012 was executed by the foreign company-Duro Felguera undertaking to compensate for the delay, damages to the GPL. Since the Corporate Guarantee was by the foreign company-Duro Felguera which contains separate arbitration clause, there has to be a separate arbitral tribunal for resolving the disputes arising out of the said Corporate Guarantee.39. New Package No. 4 TD- F.O.B. Supply of Bulk Material Handling Equipments USD 26,666,932 has been awarded to the foreign company-Duro Felguera. Since Duro Felguera is a foreign company, in so far as the contract awarded to Duro Felguera i.e. New Package No.4 and the dispute arising out of the Corporate Guarantee executed by the foreign company-Duro Felguera is concerned, the arbitral tribunal has to be for the international commercial arbitration.40. The learned Senior Counsel for GPL relied upon Chloro Controls India Private Ltd. (supra), to contend that where various agreements constitute a composite transaction, court can refer disputes to arbitration if all ancillary agreements are relatable to principal agreement and performance of one agreement is so intrinsically interlinked with other agreements. Even though Chloro Controls has considered the doctrine of "composite reference", "composite performance" etc., ratio of Chloro Controls may not be applicable to the case in hand. In Chloro Controls, the arbitration clause in the principal agreement i.e. clause (30) required that any dispute or difference arising under or in connection with the principal (mother) agreement, which could not be settled by friendly negotiation and agreement between the parties, would be finally settled by arbitration conducted in accordance with Rules of ICC. The words thereon "under and in connection with" in the principal agreement was very wide to make it more comprehensive. In that background, the performance of all other agreements by respective parties including third parties/non-signatories had to fall in line with the principal agreement. In such factual background, it was held that all agreements pertaining to the entire disputes are to be settled by a "composite reference". The case in hand stands entirely on different footing. As discussed earlier, all five different Packages as well as the Corporate Guarantee have separate arbitration clauses and they do not depend on the terms and conditions of the Original Package No.4 TD nor on the MoU, which is intended to have clarity in execution of the work.41. Duro Felguera being a foreign company, for each of the disputes arising under New Package No.4 and Corporate Guarantee, International Commercial Arbitration Tribunal are to be constituted. M/s. Duro Felguera has nominated Mr. Justice D.R. Deshmukh (Former Judge of Chhattisgarh High Court) as their arbitrator. Gangavaram Port Limited (GPL) has nominated Mr. Justice M.N. Rao (Former Chief Justice of Himachal Pradesh High Court). Alongwith the above two arbitrators Mr. Justice R.M. Lodha, Former Chief Justice of India is appointed as the Presiding Arbitrator of the International Commercial Arbitral Tribunal.42. Package No.6 (Rs.208,66,53,657/-); Package No.7 (Rs.59,14,65,706/-); Package No.8 (Rs.9,94,38,635/-); and Package No.9 (Rs.29,52,85, 558/-) have been awarded to the Indian company-FGI. Since the issues arising between the parties are inter-related, the same arbitral tribunal, Justice R.M. Lodha, Former Chief Justice of India, Justice D.R. Deshmukh, Former Judge of Chhattisgarh High Court and Justice M. N. Rao, Former Chief Justice of Himachal Pradesh High Court, shall separately constitute Domestic Arbitral Tribunals for resolving each of the disputes pertaining to Packages No.6, 7, 8 and 9. | 1[ds]19. There is no dispute between the parties that the issue at hand is governed by the amended provision of(6A) of Section 11. Even though Letters of Award are dated 17.03.2012 and five separate contracts were entered into between the parties on 10.05.2012, the dispute arose between the parties in 2016 as pointed out earlier, Gangavaram Port Limited invoked the Bank Guarantee on 07.01.2016 and M/s. Duro Felguera and its Indianissued notice of dissatisfaction on 04.02.2016 and 07.02.2016 respectively to Gangavaram Port Limited. M/s. Duro Felguera issued arbitration notice on 05.04.2016 for contract relating to Package No. 4 and FGI issued four arbitration notices dated 07.04.2016 for contracts relating to Packages No. 6 to 9. Gangavaram Port Limited also issued an arbitration notice on 13.04.2016. Since the dispute between the parties arose in 2016, the amended provision of(6A) of Section 11 shall govern the issue, as per which the power of the Court is confined only to examine theclauses as to the priority of the documents was incorporated in all other contractNo. 6, 7, 8 and 9 awarded to Indian subsidiary FGI. In the sequence of documents of clause (2) of the contract agreement quoted above, the Tender Document is mentioned in the sequence only as (g) and all other documents or the other documents like Letters of Award, Special conditions of contract etc. have priority over the same. While so, the terms contained in Original Package No. 4 TD including the arbitration clause cannot have priority over the Special Conditions of contract of thecontracts. When the Original Package No. 4 TD has beeninto five different Packages, GPL is not right in contending that inspite ofof the work, the Original Package No.4 TD collectively covered all the five Packages. After the Original Package No. 4 was split into five different contracts, the parties cannot go back to the Original Package No.4 nor can they merge them into one. We do not find merit in the submissions of GPL that20.6 of the Original Package No. 4 TD will still collectively cover all the five Packages to justify constitution of single Arbitral Tribunal.25. The foreignFelguera had executed a Corporate Guarantee dated 17.03.2012 guaranteeing the due performance of all the works awarded to Duro Felguera and FGI. The Corporate Guarantee itself has its own separate and distinct arbitration clause.As per the terms of Corporate Guarantee, it shall cease on issuance of the performance certificate under all the contracts. Of course, Duro Felguera has given the Corporate Guarantee for all the five contracts viz., New Package No.4, Packages No. 6 to 9. Corporate Guarantee executed by Duro Felguera dated 17.03.2012 also recognizes the split up of the original Package No. 4 Tender Document. As per the terms of the Corporate Guarantee, it is to be invoked only if breach is established in one of the five contracts. Since the Corporate Guarantee by itself has a separate arbitration clause, it cannot be contended that by virtue of the Corporate Guarantee executed by Duro Felguera, there has to be a composite reference of International Commercial Arbitration which would cover all the five Packages. The Corporate Guarantee by Duro Felguera cannot supersede the fivecontracts and the special conditions of contractquestion whether or not the arbitration clause contained in another document, is incorporated in the contract, is always a question of construction of document in reference to intention of the parties. The terms of a contract may have to be ascertained by reference to more than one document.Considering the MoU, in light of the above ratio, as pointed out earlier, in the MoU, Original Package No.4 Tender Document is merely referred only to have more clarity on technical and execution related matters and the parties agreed that the works shall be carried out as per the priority of the documents indicated thereon. Mere reference to Original Package No.4 Tender Document in the sequence of priority of documents (as serial No.4) indicates that the documents Original Package No. 4 TD containing arbitration clause was not intended to be incorporated in its entirety but only to have clarity in priority of the documents in execution of theare a number of contract agreements between the partiesGPL, Duro Felguera and FGI. It is pertinent to note that MoU dated 11.08.2012 itself does not contain an arbitration clause. When reference is made to the priority of documents to have clarity in execution of the work, such general reference to Original Package No.4 Tender Document will not be sufficient to hold that the arbitration clause 20.6 in the Original Package No.4 TD is incorporated in the MoU.The Corporate Guarantee dated 17.03.2012 was executed by the foreignFelguera undertaking to compensate for the delay, damages to the GPL. Since the Corporate Guarantee was by the foreignF.O.B. Supply of Bulk Material Handling Equipments USD 26,666,932 has been awarded to the foreignFelguera. Since Duro Felguera is a foreign company, in so far as the contract awarded to Duro Felguera i.e. New Package No.4 and the dispute arising out of the Corporate Guarantee executed by the foreignFelguera is concerned, the arbitral tribunal has to be for the international commercialdiscussed earlier, all five different Packages as well as the Corporate Guarantee have separate arbitration clauses and they do not depend on the terms and conditions of the Original Package No.4 TD nor on the MoU, which is intended to have clarity in execution of the work.Duro Felguera being a foreign company, for each of the disputes arising under New Package No.4 and Corporate Guarantee, International Commercial Arbitration Tribunal are to be constituted. M/s. Duro Felguera has nominated Mr. Justice D.R. Deshmukh (Former Judge of Chhattisgarh High Court) as their arbitrator. Gangavaram Port Limited (GPL) has nominated Mr. Justice M.N. Rao (Former Chief Justice of Himachal Pradesh High Court). Alongwith the above two arbitrators Mr. Justice R.M. Lodha, Former Chief Justice of India is appointed as the Presiding Arbitrator of the International Commercial Arbitral Tribunal.42. Package No.6Package No.8and Package No.9 (Rs.29,52,85,have been awarded to the IndianSince the issues arising between the parties arethe same arbitral tribunal, Justice R.M. Lodha, Former Chief Justice of India, Justice D.R. Deshmukh, Former Judge of Chhattisgarh High Court and Justice M. N. Rao, Former Chief Justice of Himachal Pradesh High Court, shall separately constitute Domestic Arbitral Tribunals for resolving each of the disputes pertaining to Packages No.6, 7, 8 and 9. | 1 | 10,578 | 1,176 | ### Instruction:
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the priority of the documents indicated thereon. Mere reference to Original Package No.4 Tender Document in the sequence of priority of documents (as serial No.4) indicates that the documents Original Package No. 4 TD containing arbitration clause was not intended to be incorporated in its entirety but only to have clarity in priority of the documents in execution of the work. Be it noted that Original Package No.4 TD occurs as Serial No.4 in sequence, after three other documents viz...,"(i) Annexure 1 to the Letter of Award issued for Package No. 4 Contract; and (ii) Annexure III to the Letter of Award issued for Packages No. 4, 6, 7, 8 and 9 contracts; and (iii) Clarifications/Addendums No.1 to 4 (in the descending order) issued by the Employer to the Original Package No. 4 Tender Document."There are a number of contract agreements between the parties - GPL, Duro Felguera and FGI. It is pertinent to note that MoU dated 11.08.2012 itself does not contain an arbitration clause. When reference is made to the priority of documents to have clarity in execution of the work, such general reference to Original Package No.4 Tender Document will not be sufficient to hold that the arbitration clause 20.6 in the Original Package No.4 TD is incorporated in the MoU.36. The submission of GPL is that since reference to Original Package No.4 TD is made in MoU, the arbitration clause is incorporated in the MoU and there has to be a composite reference for settling the disputes under different contracts by constitution of single arbitral tribunal for dealing with the international commercial arbitration. As discussed earlier, as per the amended provision of sub-section (6A) of Section 11, the power of the court is only to examine the existence of arbitration agreement. When there are five separate contracts each having independent existence with separate arbitration clauses that is New Package No.4 (with foreign company Duro Felguera) and Packages No. 6, 7, 8 and 9 [with Indian subsidiary (FGI)] based on MoU and Corporate Guarantee, there cannot be a single arbitral tribunal for "International Commercial Arbitration".37. It was submitted that if the request of GPL is accepted and all Packages are considered under the same reference, they shall be treated as international commercial arbitrations, then FGI may lose the opportunity of challenging the award under Section 34(2A) of the Act. In response to the above submission, GPL offered to concede and submitted that Section 34 (2A) of the Act may be invoked by Indian subsidiary-FGI, though Section 34(2A) is not applicable to international commercial arbitration. Such a concession is against the provisions and specific mandate of legislature and cannot be accepted.38. The Corporate Guarantee dated 17.03.2012 was executed by the foreign company-Duro Felguera undertaking to compensate for the delay, damages to the GPL. Since the Corporate Guarantee was by the foreign company-Duro Felguera which contains separate arbitration clause, there has to be a separate arbitral tribunal for resolving the disputes arising out of the said Corporate Guarantee.39. New Package No. 4 TD- F.O.B. Supply of Bulk Material Handling Equipments USD 26,666,932 has been awarded to the foreign company-Duro Felguera. Since Duro Felguera is a foreign company, in so far as the contract awarded to Duro Felguera i.e. New Package No.4 and the dispute arising out of the Corporate Guarantee executed by the foreign company-Duro Felguera is concerned, the arbitral tribunal has to be for the international commercial arbitration.40. The learned Senior Counsel for GPL relied upon Chloro Controls India Private Ltd. (supra), to contend that where various agreements constitute a composite transaction, court can refer disputes to arbitration if all ancillary agreements are relatable to principal agreement and performance of one agreement is so intrinsically interlinked with other agreements. Even though Chloro Controls has considered the doctrine of "composite reference", "composite performance" etc., ratio of Chloro Controls may not be applicable to the case in hand. In Chloro Controls, the arbitration clause in the principal agreement i.e. clause (30) required that any dispute or difference arising under or in connection with the principal (mother) agreement, which could not be settled by friendly negotiation and agreement between the parties, would be finally settled by arbitration conducted in accordance with Rules of ICC. The words thereon "under and in connection with" in the principal agreement was very wide to make it more comprehensive. In that background, the performance of all other agreements by respective parties including third parties/non-signatories had to fall in line with the principal agreement. In such factual background, it was held that all agreements pertaining to the entire disputes are to be settled by a "composite reference". The case in hand stands entirely on different footing. As discussed earlier, all five different Packages as well as the Corporate Guarantee have separate arbitration clauses and they do not depend on the terms and conditions of the Original Package No.4 TD nor on the MoU, which is intended to have clarity in execution of the work.41. Duro Felguera being a foreign company, for each of the disputes arising under New Package No.4 and Corporate Guarantee, International Commercial Arbitration Tribunal are to be constituted. M/s. Duro Felguera has nominated Mr. Justice D.R. Deshmukh (Former Judge of Chhattisgarh High Court) as their arbitrator. Gangavaram Port Limited (GPL) has nominated Mr. Justice M.N. Rao (Former Chief Justice of Himachal Pradesh High Court). Alongwith the above two arbitrators Mr. Justice R.M. Lodha, Former Chief Justice of India is appointed as the Presiding Arbitrator of the International Commercial Arbitral Tribunal.42. Package No.6 (Rs.208,66,53,657/-); Package No.7 (Rs.59,14,65,706/-); Package No.8 (Rs.9,94,38,635/-); and Package No.9 (Rs.29,52,85, 558/-) have been awarded to the Indian company-FGI. Since the issues arising between the parties are inter-related, the same arbitral tribunal, Justice R.M. Lodha, Former Chief Justice of India, Justice D.R. Deshmukh, Former Judge of Chhattisgarh High Court and Justice M. N. Rao, Former Chief Justice of Himachal Pradesh High Court, shall separately constitute Domestic Arbitral Tribunals for resolving each of the disputes pertaining to Packages No.6, 7, 8 and 9.
### Response:
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### Explanation:
Gangavaram Port Limited invoked the Bank Guarantee on 07.01.2016 and M/s. Duro Felguera and its Indianissued notice of dissatisfaction on 04.02.2016 and 07.02.2016 respectively to Gangavaram Port Limited. M/s. Duro Felguera issued arbitration notice on 05.04.2016 for contract relating to Package No. 4 and FGI issued four arbitration notices dated 07.04.2016 for contracts relating to Packages No. 6 to 9. Gangavaram Port Limited also issued an arbitration notice on 13.04.2016. Since the dispute between the parties arose in 2016, the amended provision of(6A) of Section 11 shall govern the issue, as per which the power of the Court is confined only to examine theclauses as to the priority of the documents was incorporated in all other contractNo. 6, 7, 8 and 9 awarded to Indian subsidiary FGI. In the sequence of documents of clause (2) of the contract agreement quoted above, the Tender Document is mentioned in the sequence only as (g) and all other documents or the other documents like Letters of Award, Special conditions of contract etc. have priority over the same. While so, the terms contained in Original Package No. 4 TD including the arbitration clause cannot have priority over the Special Conditions of contract of thecontracts. When the Original Package No. 4 TD has beeninto five different Packages, GPL is not right in contending that inspite ofof the work, the Original Package No.4 TD collectively covered all the five Packages. After the Original Package No. 4 was split into five different contracts, the parties cannot go back to the Original Package No.4 nor can they merge them into one. We do not find merit in the submissions of GPL that20.6 of the Original Package No. 4 TD will still collectively cover all the five Packages to justify constitution of single Arbitral Tribunal.25. The foreignFelguera had executed a Corporate Guarantee dated 17.03.2012 guaranteeing the due performance of all the works awarded to Duro Felguera and FGI. The Corporate Guarantee itself has its own separate and distinct arbitration clause.As per the terms of Corporate Guarantee, it shall cease on issuance of the performance certificate under all the contracts. Of course, Duro Felguera has given the Corporate Guarantee for all the five contracts viz., New Package No.4, Packages No. 6 to 9. Corporate Guarantee executed by Duro Felguera dated 17.03.2012 also recognizes the split up of the original Package No. 4 Tender Document. As per the terms of the Corporate Guarantee, it is to be invoked only if breach is established in one of the five contracts. Since the Corporate Guarantee by itself has a separate arbitration clause, it cannot be contended that by virtue of the Corporate Guarantee executed by Duro Felguera, there has to be a composite reference of International Commercial Arbitration which would cover all the five Packages. The Corporate Guarantee by Duro Felguera cannot supersede the fivecontracts and the special conditions of contractquestion whether or not the arbitration clause contained in another document, is incorporated in the contract, is always a question of construction of document in reference to intention of the parties. The terms of a contract may have to be ascertained by reference to more than one document.Considering the MoU, in light of the above ratio, as pointed out earlier, in the MoU, Original Package No.4 Tender Document is merely referred only to have more clarity on technical and execution related matters and the parties agreed that the works shall be carried out as per the priority of the documents indicated thereon. Mere reference to Original Package No.4 Tender Document in the sequence of priority of documents (as serial No.4) indicates that the documents Original Package No. 4 TD containing arbitration clause was not intended to be incorporated in its entirety but only to have clarity in priority of the documents in execution of theare a number of contract agreements between the partiesGPL, Duro Felguera and FGI. It is pertinent to note that MoU dated 11.08.2012 itself does not contain an arbitration clause. When reference is made to the priority of documents to have clarity in execution of the work, such general reference to Original Package No.4 Tender Document will not be sufficient to hold that the arbitration clause 20.6 in the Original Package No.4 TD is incorporated in the MoU.The Corporate Guarantee dated 17.03.2012 was executed by the foreignFelguera undertaking to compensate for the delay, damages to the GPL. Since the Corporate Guarantee was by the foreignF.O.B. Supply of Bulk Material Handling Equipments USD 26,666,932 has been awarded to the foreignFelguera. Since Duro Felguera is a foreign company, in so far as the contract awarded to Duro Felguera i.e. New Package No.4 and the dispute arising out of the Corporate Guarantee executed by the foreignFelguera is concerned, the arbitral tribunal has to be for the international commercialdiscussed earlier, all five different Packages as well as the Corporate Guarantee have separate arbitration clauses and they do not depend on the terms and conditions of the Original Package No.4 TD nor on the MoU, which is intended to have clarity in execution of the work.Duro Felguera being a foreign company, for each of the disputes arising under New Package No.4 and Corporate Guarantee, International Commercial Arbitration Tribunal are to be constituted. M/s. Duro Felguera has nominated Mr. Justice D.R. Deshmukh (Former Judge of Chhattisgarh High Court) as their arbitrator. Gangavaram Port Limited (GPL) has nominated Mr. Justice M.N. Rao (Former Chief Justice of Himachal Pradesh High Court). Alongwith the above two arbitrators Mr. Justice R.M. Lodha, Former Chief Justice of India is appointed as the Presiding Arbitrator of the International Commercial Arbitral Tribunal.42. Package No.6Package No.8and Package No.9 (Rs.29,52,85,have been awarded to the IndianSince the issues arising between the parties arethe same arbitral tribunal, Justice R.M. Lodha, Former Chief Justice of India, Justice D.R. Deshmukh, Former Judge of Chhattisgarh High Court and Justice M. N. Rao, Former Chief Justice of Himachal Pradesh High Court, shall separately constitute Domestic Arbitral Tribunals for resolving each of the disputes pertaining to Packages No.6, 7, 8 and 9.
|
Board Of Trustees Of The Port Of Mumbai Vs. M/S Byramjee Jeejeebhoy P.Ltd | an Officer of the Port Trust.Dated 1/2/1963Sd/-Estate Manager" 22. There are receipts of the years 1963 and 1965 issued by the Mumbai Port Trust acknowledging the payment of rent from defendant no.2. More importantly the sub-lease deed that forms the sheet-anchor of the plaintiffs case, though executed on June 1, 1978, was made effective retrospectively from June 15, 1964. It came to an end on February 26, 1985. 23. On the basis of the materials on record, we must accept and proceed on the basis that defendant no.2 was in occupation of the suit land long before February 1, 1973 and had continued to be in its possession on that date. The sub-letting by defendant no.1 in favour of defendant no.2, thus, clearly fell within the protective ambit of section 15(2) of Bombay Rent Act. 24. Faced with this situation, Mr. Sundaram, learned senior advocate, appearing for the plaintiff-respondent no.1 contended that in order to claim protection under section 15(2) of the Act, it was incumbent upon the claimant to show that there was a sub-lease, assignment or transfer in his favour prior to 1973 and it was in pursuance of such sub-lease, assignment or transfer that it came in possession and continued to be in possession of the demised property and was actually in possession of the demised property on February 1, 1973. In this case, according to Mr. Sundaram, apart from the sub-lease dated June 17, 1978, there was no other sub-lease or any other instrument of transfer to show that defendant no.2 came in possession of the suit land in pursuance of any sub-lease, assignment or transfer, etc. 25. We find no force in this submission. Section 15(2), apart from others uses the expression `transfer of interest in any other manner. It is sufficiently wide to include even an oral arrangement pursuant to which the sub-lessee might enter upon the land and continue in its possession. We have no manner of doubt that the initial induction of defendant no.2 on the suit land was covered by section 15(2) of the Act. 26. Mr. Sundaram next contended that the possession of the suit land by defendant no.2 on February 1, 1973 might have had the protection of section 15(2) of the Act. But a basic change was brought about by the execution of the lease deed on June 17, 1978 which gave rise to a new relationship between the two defendants, the lessee and the sub-lessee. Mr. Sundaram submitted that the execution of the sub-lease by defendant no.1 in favour of defendant no.2 on June 17, 1978 and the continued possession of the suit land by defendant no.2 on the basis of that sub-lease would certainly not come under the protection of section 15(2) of the Act. 27. In order to appreciate Mr. Sundarams submission it would be apposite to refer to section 22 of the Bombay Rent Act, which is as follows: "22. Particulars to be furnished by tenant of tenancy sub-let or transferred before the 1st day of February 1973.(1) Every tenant who before the 1st day of February 1973, has without the consent of the landlord given in writing sub-let the whole or any part of the premises let to him or assigned or transferred in any other manner his interest therein, and every sub-tenant to whom the premises are so sub-let or the assignment or transfer is so made, shall furnish to the landlord, within a month of the receipt of a notice served upon him by the landlord by post or in any other manner, a statement in writing signed by him giving full particulars of such sub-letting assignment or transfer including the rent charged or paid by him.(2) Any tenant or sub-tenant who fails to furnish such statement or intentionally furnishes a statement which is false in any material particular shall, on conviction, be punished with the fine which may extend to one thousand rupees." 28. Section 22 provided for the landlord to have full information concerning the sub-lessee/licensee who might be in occupation of the demised premises on February 1, 1973, including the rent charged from him by the tenant. The provisions of section 22 clearly suggest that after the cut off date, i.e., February 1, 1973 there should be no material change, to the detriment of the landlord in the terms and conditions on which the sub-tenant was in possession of the demised premises on that date and in case after that date, any material change is brought about in the status of the sub-tenant, to the prejudice of the landlord that might not have the protection of section 15(2) but may come within the mischief of section 13(1)(e). And hence, the point raised by Mr. Sundaram appears to be theoretically correct. But in the facts of the case the point does not seem to arise. Mr. Parag Tripathi, learned Additional Solicitor General, appearing for the Mumbai Port Trust, rightly submitted that in pith and substance the sub-lease deed of 1978, was simply a formalization and continuation of the arrangement as existing between the defendants prior to February 1, 1973. There was no material change in the status of defendant no.2 or in the terms and conditions on which it was in possession of the suit land on February 1, 1973 or in the inter se relationship between the two defendants. The execution of the sub- lease on June 17, 1978 by defendant no.1 in favour defendant no.2 would not, therefore, militate against the protection offered by section 15(2) of the Act. The execution of the lease would not constitute a ground for eviction against defendant no.1 in terms of section 13(1)(e) of the Act.29. In light of the discussion made above, we find that the judgments and orders passed by the High Court and the two courts below are quite unsustainable. We, accordingly, set aside the judgments and orders passed by the High Court and the court of Small Causes and dismiss the suit filed by the plaintiff-respondent no.1. | 1[ds]25. We find no force in this submission. Section 15(2), apart from others uses the expression `transfer of interest in any other manner. It is sufficiently wide to include even an oral arrangement pursuant to which the sub-lessee might enter upon the land and continue in its possession. We have no manner of doubt that the initial induction of defendant no.2 on the suit land was covered by section 15(2) of the Act.Section 22 provided for the landlord to have full information concerning the sub-lessee/licensee who might be in occupation of the demised premises on February 1, 1973, including the rent charged from him by the tenant. The provisions of section 22 clearly suggest that after the cut off date, i.e., February 1, 1973 there should be no material change, to the detriment of the landlord in the terms and conditions on which the sub-tenant was in possession of the demised premises on that date and in case after that date, any material change is brought about in the status of the sub-tenant, to the prejudice of the landlord that might not have the protection of section 15(2) but may come within the mischief of section 13(1)(e). And hence, the point raised by Mr. Sundaram appears to be theoretically correct. But in the facts of the case the point does not seem to arise. Mr. Parag Tripathi, learned Additional Solicitor General, appearing for the Mumbai Port Trust, rightly submitted that in pith and substance the sub-lease deed of 1978, was simply a formalization and continuation of the arrangement as existing between the defendants prior to February 1, 1973. There was no material change in the status of defendant no.2 or in the terms and conditions on which it was in possession of the suit land on February 1, 1973 or in the inter se relationship between the two defendants. The execution of the sub- lease on June 17, 1978 by defendant no.1 in favour defendant no.2 would not, therefore, militate against the protection offered by section 15(2) of the Act. The execution of the lease would not constitute a ground for eviction against defendant no.1 in terms of section 13(1)(e) of the Act.29. In light of the discussion made above, we find that the judgments and orders passed by the High Court and the two courts below are quite unsustainable. We, accordingly, set aside the judgments and orders passed by the High Court and the court of Small Causes and dismiss the suit filed by the plaintiff-respondent no.1. | 1 | 7,533 | 483 | ### 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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an Officer of the Port Trust.Dated 1/2/1963Sd/-Estate Manager" 22. There are receipts of the years 1963 and 1965 issued by the Mumbai Port Trust acknowledging the payment of rent from defendant no.2. More importantly the sub-lease deed that forms the sheet-anchor of the plaintiffs case, though executed on June 1, 1978, was made effective retrospectively from June 15, 1964. It came to an end on February 26, 1985. 23. On the basis of the materials on record, we must accept and proceed on the basis that defendant no.2 was in occupation of the suit land long before February 1, 1973 and had continued to be in its possession on that date. The sub-letting by defendant no.1 in favour of defendant no.2, thus, clearly fell within the protective ambit of section 15(2) of Bombay Rent Act. 24. Faced with this situation, Mr. Sundaram, learned senior advocate, appearing for the plaintiff-respondent no.1 contended that in order to claim protection under section 15(2) of the Act, it was incumbent upon the claimant to show that there was a sub-lease, assignment or transfer in his favour prior to 1973 and it was in pursuance of such sub-lease, assignment or transfer that it came in possession and continued to be in possession of the demised property and was actually in possession of the demised property on February 1, 1973. In this case, according to Mr. Sundaram, apart from the sub-lease dated June 17, 1978, there was no other sub-lease or any other instrument of transfer to show that defendant no.2 came in possession of the suit land in pursuance of any sub-lease, assignment or transfer, etc. 25. We find no force in this submission. Section 15(2), apart from others uses the expression `transfer of interest in any other manner. It is sufficiently wide to include even an oral arrangement pursuant to which the sub-lessee might enter upon the land and continue in its possession. We have no manner of doubt that the initial induction of defendant no.2 on the suit land was covered by section 15(2) of the Act. 26. Mr. Sundaram next contended that the possession of the suit land by defendant no.2 on February 1, 1973 might have had the protection of section 15(2) of the Act. But a basic change was brought about by the execution of the lease deed on June 17, 1978 which gave rise to a new relationship between the two defendants, the lessee and the sub-lessee. Mr. Sundaram submitted that the execution of the sub-lease by defendant no.1 in favour of defendant no.2 on June 17, 1978 and the continued possession of the suit land by defendant no.2 on the basis of that sub-lease would certainly not come under the protection of section 15(2) of the Act. 27. In order to appreciate Mr. Sundarams submission it would be apposite to refer to section 22 of the Bombay Rent Act, which is as follows: "22. Particulars to be furnished by tenant of tenancy sub-let or transferred before the 1st day of February 1973.(1) Every tenant who before the 1st day of February 1973, has without the consent of the landlord given in writing sub-let the whole or any part of the premises let to him or assigned or transferred in any other manner his interest therein, and every sub-tenant to whom the premises are so sub-let or the assignment or transfer is so made, shall furnish to the landlord, within a month of the receipt of a notice served upon him by the landlord by post or in any other manner, a statement in writing signed by him giving full particulars of such sub-letting assignment or transfer including the rent charged or paid by him.(2) Any tenant or sub-tenant who fails to furnish such statement or intentionally furnishes a statement which is false in any material particular shall, on conviction, be punished with the fine which may extend to one thousand rupees." 28. Section 22 provided for the landlord to have full information concerning the sub-lessee/licensee who might be in occupation of the demised premises on February 1, 1973, including the rent charged from him by the tenant. The provisions of section 22 clearly suggest that after the cut off date, i.e., February 1, 1973 there should be no material change, to the detriment of the landlord in the terms and conditions on which the sub-tenant was in possession of the demised premises on that date and in case after that date, any material change is brought about in the status of the sub-tenant, to the prejudice of the landlord that might not have the protection of section 15(2) but may come within the mischief of section 13(1)(e). And hence, the point raised by Mr. Sundaram appears to be theoretically correct. But in the facts of the case the point does not seem to arise. Mr. Parag Tripathi, learned Additional Solicitor General, appearing for the Mumbai Port Trust, rightly submitted that in pith and substance the sub-lease deed of 1978, was simply a formalization and continuation of the arrangement as existing between the defendants prior to February 1, 1973. There was no material change in the status of defendant no.2 or in the terms and conditions on which it was in possession of the suit land on February 1, 1973 or in the inter se relationship between the two defendants. The execution of the sub- lease on June 17, 1978 by defendant no.1 in favour defendant no.2 would not, therefore, militate against the protection offered by section 15(2) of the Act. The execution of the lease would not constitute a ground for eviction against defendant no.1 in terms of section 13(1)(e) of the Act.29. In light of the discussion made above, we find that the judgments and orders passed by the High Court and the two courts below are quite unsustainable. We, accordingly, set aside the judgments and orders passed by the High Court and the court of Small Causes and dismiss the suit filed by the plaintiff-respondent no.1.
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25. We find no force in this submission. Section 15(2), apart from others uses the expression `transfer of interest in any other manner. It is sufficiently wide to include even an oral arrangement pursuant to which the sub-lessee might enter upon the land and continue in its possession. We have no manner of doubt that the initial induction of defendant no.2 on the suit land was covered by section 15(2) of the Act.Section 22 provided for the landlord to have full information concerning the sub-lessee/licensee who might be in occupation of the demised premises on February 1, 1973, including the rent charged from him by the tenant. The provisions of section 22 clearly suggest that after the cut off date, i.e., February 1, 1973 there should be no material change, to the detriment of the landlord in the terms and conditions on which the sub-tenant was in possession of the demised premises on that date and in case after that date, any material change is brought about in the status of the sub-tenant, to the prejudice of the landlord that might not have the protection of section 15(2) but may come within the mischief of section 13(1)(e). And hence, the point raised by Mr. Sundaram appears to be theoretically correct. But in the facts of the case the point does not seem to arise. Mr. Parag Tripathi, learned Additional Solicitor General, appearing for the Mumbai Port Trust, rightly submitted that in pith and substance the sub-lease deed of 1978, was simply a formalization and continuation of the arrangement as existing between the defendants prior to February 1, 1973. There was no material change in the status of defendant no.2 or in the terms and conditions on which it was in possession of the suit land on February 1, 1973 or in the inter se relationship between the two defendants. The execution of the sub- lease on June 17, 1978 by defendant no.1 in favour defendant no.2 would not, therefore, militate against the protection offered by section 15(2) of the Act. The execution of the lease would not constitute a ground for eviction against defendant no.1 in terms of section 13(1)(e) of the Act.29. In light of the discussion made above, we find that the judgments and orders passed by the High Court and the two courts below are quite unsustainable. We, accordingly, set aside the judgments and orders passed by the High Court and the court of Small Causes and dismiss the suit filed by the plaintiff-respondent no.1.
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COMMISSIONER OF INCOME TAX, CENTRAL-4, MUMBAI Vs. M/S. NITCO TILES LIMITED | 1. Leave granted.2. We have heard learned counsel for the parties finally.3. We notice from the impugned judgment of the High Court that the Income Tax Department had raised five questions, as substantial questions of law, for determination by the High Court. The High Court has, however, admitted the appeal only in respect of Question No.4.4. In so far as Question Nos. 1 to 3 and 5 are concerned, the High Court noted that these questions were considered in its earlier decision titled as DCIT versus Reliance Industries in ITA No. 4045/M/91 against the revenue and, therefore, there is no need to admit the appeal on those questions.5. We find that against the judgment of the High Court in Reliance Industries case, the Department has preferred the special leave petition, which was granted and ultimately appeal was allowed by this Court, vide its judgment dated 2nd December, 2011 titled as CIT versus Reliance Industries Limited, remitting the case back to the High Court on the ground that the appeal of the Department was dismissed without considering the following question :-?Whether on the facts and circumstances of the case and in law the Honble Tribunal was right in holding that sales tax incentive is a Capital Receipt?? | 1[ds]5. We find that against the judgment of the High Court in Reliance Industries case, the Department has preferred the special leave petition, which was granted and ultimately appeal was allowed by this Court, vide its judgment dated 2nd December, 2011 titled as CIT versus Reliance Industries Limited, remitting the case back to the High Court on the ground that the appeal of the Department was dismissed without considering the following question :-?Whether on the facts and circumstances of the case and in law the Honble Tribunal was right in holding that sales tax incentive is a Capital Receipt?? | 1 | 231 | 114 | ### 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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1. Leave granted.2. We have heard learned counsel for the parties finally.3. We notice from the impugned judgment of the High Court that the Income Tax Department had raised five questions, as substantial questions of law, for determination by the High Court. The High Court has, however, admitted the appeal only in respect of Question No.4.4. In so far as Question Nos. 1 to 3 and 5 are concerned, the High Court noted that these questions were considered in its earlier decision titled as DCIT versus Reliance Industries in ITA No. 4045/M/91 against the revenue and, therefore, there is no need to admit the appeal on those questions.5. We find that against the judgment of the High Court in Reliance Industries case, the Department has preferred the special leave petition, which was granted and ultimately appeal was allowed by this Court, vide its judgment dated 2nd December, 2011 titled as CIT versus Reliance Industries Limited, remitting the case back to the High Court on the ground that the appeal of the Department was dismissed without considering the following question :-?Whether on the facts and circumstances of the case and in law the Honble Tribunal was right in holding that sales tax incentive is a Capital Receipt??
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5. We find that against the judgment of the High Court in Reliance Industries case, the Department has preferred the special leave petition, which was granted and ultimately appeal was allowed by this Court, vide its judgment dated 2nd December, 2011 titled as CIT versus Reliance Industries Limited, remitting the case back to the High Court on the ground that the appeal of the Department was dismissed without considering the following question :-?Whether on the facts and circumstances of the case and in law the Honble Tribunal was right in holding that sales tax incentive is a Capital Receipt??
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IN RE: Vs. DISTRIBUTION OF ESSENTIAL SUPPLIES AND SERVICES DURING PANDEMIC | vaccines in respect of COVID-19. C. Medical Infrastructure C.1 Submissions in UOIs Affidavits 15. In relation to the broad issue of medical infrastructure, the Central Government begins its affidavit dated 23 April 2021 and additional affidavit dated 29 April 2021 by describing its three-tier setup of Covid Care Centers(CCC), Dedicated COVID Health Centers(DCHC) and Dedicated COVID Hospitals(DCH) which was recommended to the States for tackling the COVID-19 pandemic, for which the UOI also provided funds under an emergency response package from the National Health Mission and State Disaster Response Fund. 16. The present status of these is: (i) 2,084 DCH (of which 89 are under the Central Government and the rest 1,995 with State Governments); (ii) 4,043 DCHC; and (iii) 12,673 CCC. Cumulatively, they have 18,52,265 beds in total, out of which 4,68,974 beds are in DCH. It was also noted that Central Government hospitals have also been converted into DCH. 17. Further, tertiary care hospitals under ESIC, Defence, Railways, paramilitary forces, Steel Ministry, et al, are also being leveraged for case management. Even as many as 3816 railways coaches spread over 16 railway zones have been converted into CCC. Finally, the DRDO has also set up large field hospitals with capacities ranging from 1,000 to 10,000 isolation beds. 18. It was noted that through coordination between Central Government and State Governments, isolation beds (with/without oxygen) were increased to around 15.7 lakhs, as compared to 10,180 before the first lockdown; similarly, ICU beds were increased to more than 85,000, as compared to 2,168 before the first lockdown. Similar upgrades were provided to necessary equipment such as Ventilators, N95 masks and PPEs. 19. The affidavit provides the following details of the efforts taken by UOI to create projections for each State, and how it was communicated to them: (i) It has developed an IT module for projections of expected cases based on ongoing caseload, so as to alert States and districts to be prepared in advance. The projections by the Central Government were regularly shared in writing with the States, along with reports containing emergency plans. This tool was also made available to States, to map their own projections at the State level; (ii) Details of the meetings conducted by the Prime Minister, the Minister of Health and Family Welfare, the Cabinet Secretary, the Secretary (H) and the DGHS were provided; and (iii) Details of letters (which seem to have been sent on a monthly basis) sent by the Central Government to the State Governments indicate that they informed the State Governments of the projected cases for the coming month, along with the number of Oxygen Supported Beds, ICU Beds and of Ventilators that will be required to manage the projected cases. Thereby, the State Governments which were found lacking in their numbers were directed to ramp up their facilities. 20. In relation to the preparedness for the second wave of the COVID-19 pandemic, the affidavits state that: (i) After the first wave, the Central Government has been consistently writing to the State Governments from 4 December 2020 with numbers of projected cases, along with the directions requiring them to arrange the necessary infrastructure which will be needed; (ii) State Governments were requested by the UOI to formulate a comprehensive plan in relation to: (a) Bed capacities, ICU beds, further identification of additional hospitals, preparation of field hospital facilities, ensuring sufficient oxygen supported beds and oxygen supplies; (b) Deployment of requisite HR training and mentoring of doctors and nurses for management of patients, strengthen ambulance services and centralized call center-based services for allocation of beds; (c) Suitable initiatives for (among other things) achieving and maintaining adequate level of testing, surveillance and risk communication for promoting wearing of masks, physical distancing, hand hygiene; (d) Sufficient referral linkages for districts with deficit infrastructure through deployment of additional ambulances, wherever necessary; and (iii) On 20 April 2021, the Ministry of Health and Family Welfare( MoHFW) wrote to the State Governments with their projections and reminded them also of the funding avenues being made available to all States under NHM funding, State Disaster Response Fund, and other initiatives. 21. The affidavits also note that the Central Government had developed a live portal with all the States and districts where they were asked to feed in their data of cases and details such as people under home isolation, on isolation beds (with or without oxygen) and on ICU beds. Further, the State Governments were also directed to feed in details of the COVID dedicated health care infrastructure created by them, besides the details of containment zones so specified by them. However, the Central Government has alleged that States and districts did not upload their data regularly enough. Additionally, there was also a Facility App which could be used by Covid Health facilities to monitor their patients as well as the availability of logistics with their health facility. However, the Central Government alleges that States, districts and facilities did not use this Facility App. C.2 National Policy for Admission in Hospitals 22. It has been submitted by the Central Government that health being a state subject, the medical infrastructure is largely created and maintained by the respective State Governments. Since we are yet to hear from the State Governments, we shall not be issuing any directions or making comprehensive observations in relation to this issue. 23. However, based on the affidavits submitted by the Central Government and the hearings which followed, we have come to understand that there is no national policy on how admissions must take place in the various tiers of hospitals (CCC, DCHC and DCH). Gaining admission into a hospital with a bed is one of the biggest challenges being faced by most individuals during this second wave of the COVID-19 pandemic. Left to their own devices, citizens have had to suffer immeasurable hardship. Different states and local authorities follow their own protocols. Differing standards for admission in different hospitals across the nation leads to chaos and uncertainty. The situation cannot brook any delay. | 1[ds]A three Judge bench of this Court in its judgement in Centre for Public Interest Litigation vs. Union of India, 2020 SCC OnLine SC 652 had noted that there was no need to develop a fresh National Plan under Section 11 for COVID-19 since a National Plan was already in place, which was being supplemented by various orders and measures taken by competent authorities under DMA. Justice Ashok Bhushan, speaking for this Court, observed that:40. The Disaster Management Act, 2005 contain ample powers and measures, which could be taken by the National Disaster Management Authority, National Executive Committee and Central Government to prepare further plans, guidelines and Standard Operating Procedure (SOPs), which in respect to COVID-19 had been done from time to time. Containment Plan for Novel Coronavirus, 2019 had been issued by Ministry of Health and Family Welfare, Government of India. There were no lack of guidelines, SOPs and Plan to contain COVID-19, by Nodal Ministry had been brought on record issued by Ministry of Health and Family Welfare, Government of India, i.e., Updated Containment Plan for Large Outbreaks Novel Coronavirus Disease, 2019 (COVID-19).14. Therefore, the National Plan, 2019 can be supplemented by the issuance of additional guidelines to tackle any aspect of disaster management including the issue of admission to hospitals and access to essential drugs and vaccines in respect of COVID-19.23. However, based on the affidavits submitted by the Central Government and the hearings which followed, we have come to understand that there is no national policy on how admissions must take place in the various tiers of hospitals (CCC, DCHC and DCH). Gaining admission into a hospital with a bed is one of the biggest challenges being faced by most individuals during this second wave of the COVID-19 pandemic. Left to their own devices, citizens have had to suffer immeasurable hardship. Different states and local authorities follow their own protocols. Differing standards for admission in different hospitals across the nation leads to chaos and uncertainty. The situation cannot brook any delay.We note the submission of the Solicitor General that the figures given in the power point presentation are revised on a daily basis and that the presentation is not to be treated as a submission made on oath by the Solicitor General, which may give rise to a cause of action for litigation in future either before this Court or the High Courts. Ms Sumita Dawra, Additional Secretary, Department of Promotion of Industry and Internal Trade, Ministry of Commerce and Industry, who is one of the senior administrative officers in charge of oxygen procurement and supply coordination, has given an overview of these issues and made a presentation before us. We would like to record our appreciation for the contribution made by Ms Dawra and her team, who despite being infected by the COVID-19 virus, has continued to work and manage the supply of medical oxygen that the country so desperately needs today. It is through the earnest contribution of officers such as Ms Dawra, who are working round the clock, that the country is able to deal with the storm created by one of the worst humanitarian crises we have seen.29. Having heard the submissions of both counsels on the issues pertaining to supply of oxygen to GNCTD, we note that the Central Government (on page 63) in its affidavit dated 23 April 2021 has admitted that the projected demand for GNCTD as of 20 April 2021 had increased by 133% from 300 MT/day to 700 MT/day. According to the figures of allocation given in the affidavit dated 23 April 2021 and the presentation given by Ms Dawra, the existing allocation of GNCTD remains at 490 MT/day. This situation must be remedied forthwith. The situation on the ground in Delhi is heart rending. Recriminations between the Central Government (which contends that GNCTD has not lifted its allocated quantity) and GNCTD (which contends that despite its projected demand the quantity allocated has not been enhanced) can furnish no solace to citizens whose lives depend on a thin thread of oxygen being available.30. With regard to the issue of the supply and availability of medical oxygen for the entire country, we have noted that efforts are being made to augment the availability of oxygen. While the Central and State Governments are in the process of managing the supply of oxygen, at the same time, it is critical that a buffer emergency stock of oxygen is created so that in the event that the supply chain is disrupted to any one or more hospitals in an area for any reason, the buffer or emergency stocks can be used to avoid loss of human lives. These emergency stocks must be so distributed so as to be easily accessible without delay in every local area. We have also seen the situation that has developed in the last 24 hours in Delhi where patients, including among them medical professionals, died because of the disruption of supplies and the time lag in the arrival of tankers. This deficit shall be rectified immediately by the Central Government by creating buffer stocks and collaborating with the States through the virtual control room on a 24 by 7 basis. In view of the deaths which are being caused daily by the disruption of supplies, this direction is more crucial than ever.32. The previous order of this Court dated 27 April 2021 directed the Central Government to clarify, inter alia: (i) the projected availability of vaccines and proposed steps to boost supply and distribution; and (ii) the vaccine pricing and distribution among states. Upon perusing the affidavits filed by the Central Government and after having the benefit of oral arguments of the Solicitor General, we have arrived at the following understanding on the two broad issues outlined above. We would once again re-iterate that we do not attempt to delve into the role of the executive in designing policy choices. We are merely seeking to enter into a dialogue with the relevant stakeholders in order to ensure probity and transparency of the measures underway. We are cognizant that it is ultimately up to the executive to frame and implement policies that it deems appropriate, with the topmost regard to public interest.33. The Central Government has apprised us of its constitution of a National Expert Group on Vaccine Administration for COVID-19(NEGVAC) on 7 August 2020 and operationalization of the immunization programme from December 2020. It was further stated that as of 26 April 2021, over 13.5 crore vaccine doses (approx. 9% of the Indian population) have been administered to Frontline Workers, Healthcare Workers and persons who are 45 years of age and higher in the 3 Phases of immunization. It was submitted that these vaccines have been centrally procured and administered free of cost to the abovementioned groups who were identified based on specific vulnerabilities and a higher mortality rate on account of the COVID-19 infection.36. During the course of the hearing, this Court has expressed its reservations prima facie on the validity of the revised policy under which the states and private hospitals are to procure 50% of the vaccines in order to immunize persons in the 18-44 years age group. For one thing, even this age group would consist of persons who suffer from vulnerabilities. Once the vaccination programme has been opened up for persons other than the 45 plus age group, it would not be logical to impose the obligation to source vaccinations for the 18-44 age group on the State Governments. This will, inter alia, leave each State Government to negotiate supply schedules, delivery points and other logistical arrangements with the manufacturers. At present, there are only two manufacturers for the authorized vaccines (with one other vaccine - Sputnik V, in the process of manufacture). The available stock of vaccines is not adequate to deal with the requirements of both the categories. The Central Government must take the responsibility of providing guidance to every State on the quantities to be supplied to each State, the vaccine(s) being allocated, the period of delivery, and the number of persons who can be covered for vaccination, among other details. Leaving the State Governments to negotiate directly with manufacturers will produce chaos and uncertainty. The object of vaccinating the 18-44 age group cannot be achieved in the absence of stocks being available.38. Since the advent of the revised rollout strategy with effect from 1 May 2021, only persons aged 45 years and above are guaranteed a free vaccine. The reason of higher efficiency and speed has been furnished as a justification for enabling State Governments and private hospitals to directly procure vaccines. We have come to understand that a few State Governments have committed to free immunization under the revised strategy.39. Prima facie, there are several aspects of the vaccine pricing policy adopted by the Central government which require that policy be revisited. All vaccines, whether in the quantity of 50% purchased by the Central Government or the remaining 50%, are to be used for vaccinating citizens. The end use is the same. The Central Government proposes to purchase half of the total quantity falling within its fifty per cent quota while for the rest, the manufacturers would declare in advance the price to be fixed, allowing the State Governments to negotiate their terms. As of date, the manufacturers have suggested two different prices, a lower price which is applicable to the Central Government and a higher price which is applicable to the quantities purchased by the State Governments. It is likely that compelling the State Governments to negotiate with manufacturers on the ground of promoting competition and making it attractive for new vaccine manufactures will result in a serious detriment to those in the age group of 18 to 44 years, who will be vaccinated by the State Governments. The social strata of this age group also comprises persons who are Bahujans or belong to other under privileged and marginalized groups, like many in the other population age groups. They may not have the ability to pay. Whether or not essential vaccines will be made available to them will depend upon the decision of each State Government, based on its own finances, on whether or not the vaccine should be made available free or should be subsidized and if so, to what extent. This will create disparity across the nation. The vaccinations being provided to citizens constitute a valuable public good. Discrimination cannot be made between different classes of citizens who are similarly circumstanced on the ground that while the Central government will carry the burden of providing free vaccines for the 45 years and above population, the State Governments will discharge the responsibility of the 18 to 44 age group on such commercial terms as they may negotiate. Prima facie, the rational method of proceeding in a manner consistent with the right to life (which includes the right to health) under Article 21 would be for the Central Government to procure all vaccines and to negotiate the price with vaccine manufacturers. Once quantities are allocated by it to each State Government, the latter would lift the allocated quantities and carry out the distribution. In other words, while procurement would be centralized, distribution of the vaccines across India within the States/UTs would be decentralized. While we are not passing a conclusive determination on the constitutionality of the current policy, the manner in which the current policy has been framed would prima facie result in a detriment to the right to public health which is an integral element of Article 21 of the Constitution. Therefore, we believe that the Central Government should consider revisiting its current vaccine policy to ensure that it withstands the scrutiny of Articles 14 and Article 21 of the Constitution.42. Several drugs that are at the core of the COVID treatment protocol are under patents in India including Remdesivir, Tociluzumab and Favipiravir. On 2 October 2020, a communication was issued by the UOI, along with South Africa, to the Council for Trade-Related Aspects of Intellectual Property which stated that there were several reports about intellectual property rights hindering timely provisioning of affordable medical products to patients(Council for Trade-Related Aspects of Intellectual Property Rights, Waiver From Certain Provisions Of The Trips Agreement For The Prevention, Containment And Treatment Of Covid-19, Communication From India And South Africa, IP/C/W/669, 2nd October, 2020, available at https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/IP/C/W669.pdf&Open=True). The communication also reported that some members of the World Trade Organization had carried out urgent amendments to their national patent laws to expedite the process of issuing compulsory/government use licenses.43. In India, the patent regime is governed by the Patents Act, 1970(Patents Act), Section 92 of which envisages the grant of a compulsory license, inter alia, in circumstances of national emergency and extreme urgency. Once a declaration of national emergency is made, and the relevant patents notified, any person interested in manufacturing the drug can make an application to the Controller General of Patents who can then issue a compulsory license. The patentee would be paid a reasonable royalty as fixed by the Controller General of Patents. Further, under Section 100 of the Patents Act, the Central Government can authorize certain companies to use any patents for the purpose of the government. Indian companies can begin manufacturing the drugs while negotiating the royalties with the patentees. If the Central Government or its authorized company is not able to reach an agreement with the patentee, the High Court has to fix the reasonable royalty that is to be paid to the patentee. Another alternative is for the Central Government to acquire the patents under Section 102 from the patentees. If the Central Government and the patentee is not able to reach a consensus on the price of the patents, it is up to the High Court to fix the royalty. Additionally, under Section 66 of the Patents Act, the Central Government is also entitled to revoke a patent in the public interest.44. The utilization of these flexibilities has also been detailed in the Trade Related Aspects of Intellectual Property Rights Agreement( TRIPS). Even as TRIPS obliges countries to ensure a minimum level of patent protection, it creates a permissive regime for the carving out of exceptions and limitations that further public health objectives(Report of the United Nations Secretary-Generals High-Level Panel on Access to Medicines Promoting Innovation and Access to Health Technologies, (United Nations Secretary-General, 2016), p. 16.). This is evident from a conjoint reading of Articles 7, 8, 30 and 31 of TRIPS. Article 7 outlines the objectives of the TRIPS as being to ensure the effective enforcement of intellectual property in a way that, inter alia, is conducive to social and economic welfare. Article 8 gives member countries the freedom to take measures that protect public health and nutrition. Article 8(2) allows for the taking of TRIPS-compatible measures aimed at preventing the abuse of intellectual property rights. Articles 30 and 31 deal with exceptions to the rights of patent owners, by allowing grant of compulsory licenses. It leaves countries with significant breathing space to determine how the compulsory licensing or government-use levers can be triggered. While such determinations must be made on the individual merits of each case(TRIPS Agreement, Article 31 (a).), the aforesaid caveat does not apply when the compulsory license grant is for national emergency, extreme urgency or public non-commercial use(TRIPS Agreement, Article 31 (b).).45. According to the 2001 Doha Declaration, TRIPS should be interpreted in a manner supportive of the right of members to protect public health and to promote access to medicines(World Trade Organization, Ministerial Declaration of 14 November 2001 (November 2001) WT/MIN(01)/DEC/1, 41 ILM 746, para 4.) It recognizes the right of WTO members to use the full extent of the TRIPS flexibilities to secure this objective. Para 5(b) of the Doha Declaration provides the freedom to each member to grant compulsory licenses and to determine the grounds on which the licenses are granted. Para 5(c) leaves it up to each nation to determine what constitutes a national emergency or extreme urgency. In the context of the COVID-19 pandemic, we note that several countries such as Canada and Germany have relaxed the legal regimes governing the grant of compulsory licenses(COVID-19 IP Policy Tracker (WIPO, 16 July 2020), available at https://www.wipo.int/covid19-policy-tracker/#/covid19-policy-tracker/access.).46. Whether and if so, the extent to which these provisions should be utilized is a policy decision for the Central Government. We have flagged the issue for its consideration. We have only outlined the legal framework within which the Central Government can possibly consider compulsory licensing and government acquisition of patents. The Central Government is free to choose any other course of action that it deems fit to tackle the issue of vaccine requirements in an equitable and expedient manner, which may involve negotiations with domestic and foreign producers of vaccines. We clarify that it is up to the Central Government to choose the best possible measures it can undertake during the current crisis keeping in mind that public interest is of paramount importance.50. In respect of the essential drugs, this Court has been informed that the Central Government is taking steps to augment the production of Remdesivir. It has been brought to our notice that seven Indian companies are manufacturing this drug under a licensing agreement with a US based company, M/s Gilead. The current production capacity as on 23 April 2021 is noted to be at 1.03 crores vials per month. The Central Government should provide us with the details of the actual rate of production and a breakup of demand for the drug from different States. Further, while it has been submitted on behalf of the Central Government that it is allocating the stocks based on a rational criterion of equitable distribution keeping in mind the existing constraints on the availability of the drug, this Court should be provided with details of the methodology used for such allocation.51. We have been informed by the Central Government in its affidavit that NPPA has revised the maximum retail price of Remdesivir to Rs 3500. However, it has come to our notice that several other drugs which are being prescribed by doctors for treating COVID-19 patients like Favipiravir, Tociluzumab, Enoxaparin, Ivermectin, Methylprednisolone, Paracetamol and Hydroxy-chloroquine are being priced at exorbitant rates creating issues of access and affordability. While this is not a direction of this Court, the Central Government can consider invoking its statutory powers under paragraphs 19 and 20 of the Drugs Price Control Order, 2013. Under paragraph 19 of the Drugs Price Control Order, 2013 the Government in extraordinary circumstances, if it considers necessary in public interest, can fix a ceiling price or retail price of the drug for a certain period. COVID-19 is a crisis of an unprecedented nature and qualifies as an extraordinary circumstance. It will be in public interest to ensure that the price of essential drugs is fixed in such a manner that it is available even to the most marginalized sections of the society. The Government can even monitor the prices of the drugs under paragraph 20 of the Drugs Price Control Order, 2013 and ensure that no manufacturer increases the prices of the drugs by more than 10% of the maximum retail price during the preceding 12 months and where the increase is beyond 10% of the maximum retail price, it can oblige the manufacturer to reduce it to the level of 10% for the next 12 months.52. The Central Government has submitted that it plans to import Remdesivir. It can also consider importing other essential drugs to meet the immediate demand of the drug while the production is ramped up. We hasten to clarify that this does not constitute a direction of this Court and ultimately this decision falls under the domain of the executive.53. We note that there are certain medicines which are being prescribed by doctors which are not mentioned in the National Clinical Management Protocol for COVID-19 like Favipiravir. However, since these medicines are being prescribed by doctors, people are facing significant inconvenience in obtaining them due to their shortage in certain parts of the country. The Central Government should consider whether the production of such medicines should be augmented to meet the demand or instructions should be given to the doctors to not recommend such medicines unless they have been included in the national protocol.The supply of Remdesivir and Tociluzumab is already under the consideration of the Central Government. A meeting was also held on 25 April 2021 by DoP, NPPA and DGCI with the manufacturers to review stock position, availability and production plans. The Central Government should provide details of estimated demand of essential drugs mentioned above, production capacity, existing stocks, details of allocation and supply of such drugs.55. As discussed in Section F, the Central Government can also consider using its powers under Sections 92, 100 or 102 of the Patents Act to increase production of essential drugs to ensure that it is commensurate to the demand. The Central Governments affidavit testifies to existence of capacity of public sector organizations and institutes, which can assist in augmenting production of various drugs and formulations. The utilization of these capabilities to augment production, once licensing is resorted to, will be in the interests of the general public. This Court is further of the opinion that prima facie the present circumstance warrant the governments examination of its the extraordinary powers, meant to be used in extreme situations, such as the current pandemic, for fixing drug prices, be it vaccines, or patented formulations, having regard to the provisions of the Drugs and Cosmetics Act, 1940 and other provisions(Paragraph 3 and 19 of the Drugs Price Control Order, 2013). We are cognizant that invocation of the above provisions, if any, is ultimately a policy decision of the Central Government and may encompass negotiations with the concerned stakeholders. We hope that the Central Government will adopt a route that best serves the public interest.56. This Court would like to take judicial notice of the fact that several critical drugs, used to treat COVID-19, such as Remdesivir and Tocilizumab, are being sold at significantly inflated prices or in fake form. This is a condemnable attempt to exploit peoples misery and profit from their helplessness.57. In order to clamp down on this practice, the Central Government can consider constituting a special team to identify and prosecute those who: (a) sell medical grade oxygen/COVID-19 medicines at exorbitant prices; and (b) sell fake substances and recover the concerned substances. A protocol for ambulances must also be evolved to avoid citizens being exploited by extracting unconscionable charges. The Central Government can consider creating a platform for easy reporting and redressal of such cases.58. It is common knowledge that a large number of medical, nursing and pharmacy students, who graduated in 2020 and would be in the process of graduating in 2021, would be available to augment the workforce in the health sector. The Central Government should, we feel, look into this aspect, and ensure the optimal manner of utilization of their services, regard being had, of course, to their safety and well-being.59. The Central Government should also consider using health care workforce available with the armed forces and para military forces for the purpose of vaccination.60. The World Health Organisation(WHO), while discussing the rapid spread of COVID-19 has not only labelled it an epidemic but also an infodemic, due to the overabundance of information on the internet, which was riddled with misinformation and disinformation. This highlights the key role internet and technology currently has in all our lives, as the COVID-19 pandemic rages on. Indeed, the WHO recently also conducted a study to understand how individuals between the ages of 18-40 years dealt with the ongoing pandemic using social media.61. It is only appropriate then that when many cities in India are suffering through the second wave of the COVID-19 pandemic, many have turned to the internet, using applications/websites to find critical support. On these platforms, online communities led by members of the civil society and other individuals, have assisted the needy in multiple ways - often by helping them procure oxygen, essential drugs or find a hospital bed through their own networks or by amplifying original requests, and even by offering moral and emotional support. However, it is with deep distress that we note that individuals seeking help on such platforms have been targeted, by alleging that the information posted by them is false and has only been posted in social media to create panic, defame the administration or damage the national image. We do not hesitate in saying that such targeting shall not be condoned, and the Central Government and State Governments should ensure that they immediately cease any direct or indirect threats of prosecution and arrest to citizens who air grievances or those that are attempting to help fellow citizens receive medical aid. If this does keep happening even after the current order, this Court shall be constrained to use the powers available to it under it contempt jurisdiction. We also direct that all Directors General of Police shall ensure compliance down the ranks of the police forces within their jurisdictions.62. In these trying times, those desperately seeking help for their loved ones on these platforms should not have their misery compounded through the actions of the State and its instrumentalities. Further, there are two more crucial reasons why such a clampdown on information sharing must be absolutely stopped immediately.63. The first reason is because sharing information widely is in itself an important tool in combating public tragedies, like the current COVID-19 pandemic. In K.S. Puttaswamy (Privacy-9J.) vs. Union of India, (2017) 10 SCC 1 one of us (DY Chandrachud, J) speaking for four Judges of a nine-Judge bench of this Court noted academic literature documenting the widespread availability of information and the resultant acknowledgement of the problem is what prevented the drought in Maharashtra in 1973 from becoming as bad as the Bengal Famine of 1943, where the British tried to deny the problem even existed. It was noted thus:267. Civil and political rights and socio-economic rights do not exist in a state of antagonism. The conditions necessary for realising or fulfilling socio-economic rights do not postulate the subversion of political freedom. The reason for this is simple. Socio-economic entitlements must yield true benefits to those for whom they are intended. This can be achieved by eliminating rent-seeking behaviour and by preventing the capture of social welfare benefits by persons who are not entitled to them. Capture of social welfare benefits can be obviated only when political systems are transparent and when there is a free flow of information. Opacity enures to the benefit of those who monopolise scarce economic resources. On the other hand, conditions where civil and political freedoms flourish ensure that governmental policies are subjected to critique and assessment. It is this scrutiny which subserves the purpose of ensuring that socio-economic benefits actually permeate to the underprivileged for whom they are meant. Conditions of freedom and a vibrant assertion of civil and political rights promote a constant review of the justness of socio-economic programmes and of their effectiveness in addressing deprivation and want. Scrutiny of public affairs is founded upon the existence of freedom. Hence civil and political rights and socio-economic rights are complementary and not mutually exclusive.268. Some of these themes have been addressed in the writings of the Nobel laureate, Amartya Sen. Sen compares the response of many non-democratic regimes in critical situations such as famine with the responses of democratic societies in similar situations. [Amartya Sen, Development as Freedom (Oxford University Press, 2000) at pp. 178-79.]...269. In the Indian context, Sen points out that the Bengal famine of 1943 was made viable not only by the lack of democracy in colonial India but also by severe restrictions on reporting and criticism imposed on the Indian press, and the voluntary practice of silence on the famine that the British-owned media chose to follow [Amartya Sen, The Idea of Justice (Penguin Books, 2009) at p. 339.] . Political liberties and democratic rights are hence regarded as constituent components of development. [Id, at p. 347] In contrast during the drought which took place in Maharashtra in 1973, food production failed drastically and the per capita food output was half of that in sub-Saharan Africa. Yet there was no famine in Maharashtra where five million people were employed in rapidly organised public projects while there were substantial famines in sub-Saharan Africa. This establishes what he terms as the protective role of democracy. Sen has analysed the issue succinctly:The causal connection between democracy and the non-occurrence of famines is not hard to seek. Famines kill millions of people in different countries in the world, but theydont kill the rulers. The kings and the presidents, the bureaucrats and the bosses, the military leaders and the commanders never are famine victims. And if there are no elections, no opposition parties, no scope for uncensored public criticism, then those in authority dont have to suffer the political consequences of their failure to prevent famines. Democracy, on the other hand, would spread the penalty of famines to the ruling groups and political leaders as well. This gives them the political incentive to try to prevent any threatening famine, and since famines are in fact easy to prevent (the economic argument clicks into the political one at this stage), the approaching famines are firmly prevented. [Amartya Sen, Development as Freedom (Oxford University Press, 2000) at p. 180.]...As such, preventing clampdowns on sharing of information on online platforms is not just in the interest of individuals sharing the information, but the larger democratic structures of our nation. Without the ready availability of such information, it is entirely possible that the COVID-19 pandemic may turn into a tragedy worse than what it already is.64. The second reason is because sharing information widely will help in the creation of a collective public memory of this pandemic. The presence of collective public memory, which refers to an extant and taken-for-granted group memory(Theodore O. Prosise, The collective memory of the atomic bombings misrecognized as objective history: The case of the public opposition to the national air and space museums atom bomb exhibit, (1998) 62 Western Journal of Communication 3:316-347, pg 318), is important for the creation of knowledge of the problems plaguing us today, so they may be passed on across time(Bryan Hubbard and Marouf A. Hasian, Atomic Memories of the Enola Gay: Strategies of Remembrance at the National Air and Space Museum (1998) 1 Rhetoric and Public Affairs 3:363-385, pg 364). This is important since we do not have to travel back too much in our past to realise that the pandemic caused by the Spanish flu of 1918, which is said to have infected every third person in the world and killed between 50-100 million individuals (compared to the 17 million who died in World War I), has been almost entirely erased from our collective public memory(Jonathan Freedland, History suggests we may forget the pandemic sooner than we think (The Guardian, 29 January 2021) available at <https://www.theguardian.com/commentisfree/2021/jan/29/history-forget-pandemicspanish-flu-covid>). Therefore, the widespread sharing of information by individuals living through the COVID-19 pandemic becomes crucial. Furthermore, the role of Courts in creating and preserving this collective public memory cannot be understated. Professors Austin Sarat and Thomas R. Kearns, in their book History, Memory, and the Law, describe the function that is played by Courts in the following terms(Austin Sarat and Thomas R. Kearns, History, Memory, and the Law (University of Michigan Press, 2009) pgs 12-13):Law in the modern era is, we believe, one of the most important of our societys technologies for preserving memory. Just as the use of precedent to legitimate legal decisions fixes law in a particular relation to the past, memory may be attached, or attach itself, to law and be preserved in and through law. Where this is the case, it serves as one way of orienting ourselves to the future. As Drucilla Cornell puts it: Legal interpretation demands that we remember the future. In that phrase, Cornell reminds us that there are, in fact, two audiences for every legal act, the audience of the present and the audience of the future. Law materializes memory in documents, transcripts, written opinions; it re-enacts the past, both intentionally and unconsciously, and it is one place where the present speaks to the future through acts of commemoration.Because the litigated case creates a record, courts can become archives in which that record serves as the materialization of memory. Due process guarantees an opportunity to be heard by, and an opportunity to speak to, the future. It is the guarantee that legal institutions can be turned into museums of unnecessary, unjust, undeserved pain and death. The legal hearing provides lawyers and litigants an opportunity to write and record history by creating narratives of present injustices, and to insist on memory in the face of denial. By recording such history and constructing such narratives lawyers and litigants call on an imagined future to choose Justice over the jurispathic tendencies of the moment.Hence, in the present proceedings, we hope to not only initiate a dialogue so as to better tackle the current COVID-19 pandemic but also to preserve its memory in our public records, so that future generations may evaluate our efforts and learn from them.65. We speak not only as members of this Court, but also as grateful citizens of the country, and commend the outstanding work of our all healthcare professionals (doctors, nurses, healthcare workers, laboratory technicians, ward staff, ambulance drivers, crematorium workers etc.) during this crisis. They have truly gone beyond their call of duty and toiled day in and day out, relentlessly without rest amidst great challenges. It is absolutely necessary to take urgent steps for their well-being to ensure that our appreciation for their tremendous efforts is not reduced to rhetoric. This is especially important since another factor which affects how collective public memory of any event is created is by the rhetoric surrounding it(Nicole Maurantonio, The Politics of Memory in Kate Kenski and Kathleen Hall Jamieson (eds), The Oxford Handbook of Political Communication (Oxford University Press, 2014)). As such, our public memory of this public event has to transcend its conception as a war against the virus of COVID-19 itself, but rather to remember that it is the complex epidemiological circumstances that promote these outbreaks and the under-resourced health systems that are tasked with disease containment(Luke Shors, Waging Another Public Health War? (Think Global Health, 26 February 2020) available at <https://www.thinkglobalhealth.org/article/waging-another-public-health-war>). While the healthcare professionals have been at the forefront of tackling this crisis, we have to recognize their contribution as medical healthcare professionals who have undertaken to protect public health using proven scientific evidence and best practices and to serve to community at large(Elena N. Naumova, The traps of calling the public health response to COVID-19 an unexpected war against an invisible enemy (2020) Journal of Public Health Policy (2020) 41:233-237, pg 233), and not just as CORONA WARRIORS. | 1 | 4,553 | 6,521 | ### 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:
vaccines in respect of COVID-19. C. Medical Infrastructure C.1 Submissions in UOIs Affidavits 15. In relation to the broad issue of medical infrastructure, the Central Government begins its affidavit dated 23 April 2021 and additional affidavit dated 29 April 2021 by describing its three-tier setup of Covid Care Centers(CCC), Dedicated COVID Health Centers(DCHC) and Dedicated COVID Hospitals(DCH) which was recommended to the States for tackling the COVID-19 pandemic, for which the UOI also provided funds under an emergency response package from the National Health Mission and State Disaster Response Fund. 16. The present status of these is: (i) 2,084 DCH (of which 89 are under the Central Government and the rest 1,995 with State Governments); (ii) 4,043 DCHC; and (iii) 12,673 CCC. Cumulatively, they have 18,52,265 beds in total, out of which 4,68,974 beds are in DCH. It was also noted that Central Government hospitals have also been converted into DCH. 17. Further, tertiary care hospitals under ESIC, Defence, Railways, paramilitary forces, Steel Ministry, et al, are also being leveraged for case management. Even as many as 3816 railways coaches spread over 16 railway zones have been converted into CCC. Finally, the DRDO has also set up large field hospitals with capacities ranging from 1,000 to 10,000 isolation beds. 18. It was noted that through coordination between Central Government and State Governments, isolation beds (with/without oxygen) were increased to around 15.7 lakhs, as compared to 10,180 before the first lockdown; similarly, ICU beds were increased to more than 85,000, as compared to 2,168 before the first lockdown. Similar upgrades were provided to necessary equipment such as Ventilators, N95 masks and PPEs. 19. The affidavit provides the following details of the efforts taken by UOI to create projections for each State, and how it was communicated to them: (i) It has developed an IT module for projections of expected cases based on ongoing caseload, so as to alert States and districts to be prepared in advance. The projections by the Central Government were regularly shared in writing with the States, along with reports containing emergency plans. This tool was also made available to States, to map their own projections at the State level; (ii) Details of the meetings conducted by the Prime Minister, the Minister of Health and Family Welfare, the Cabinet Secretary, the Secretary (H) and the DGHS were provided; and (iii) Details of letters (which seem to have been sent on a monthly basis) sent by the Central Government to the State Governments indicate that they informed the State Governments of the projected cases for the coming month, along with the number of Oxygen Supported Beds, ICU Beds and of Ventilators that will be required to manage the projected cases. Thereby, the State Governments which were found lacking in their numbers were directed to ramp up their facilities. 20. In relation to the preparedness for the second wave of the COVID-19 pandemic, the affidavits state that: (i) After the first wave, the Central Government has been consistently writing to the State Governments from 4 December 2020 with numbers of projected cases, along with the directions requiring them to arrange the necessary infrastructure which will be needed; (ii) State Governments were requested by the UOI to formulate a comprehensive plan in relation to: (a) Bed capacities, ICU beds, further identification of additional hospitals, preparation of field hospital facilities, ensuring sufficient oxygen supported beds and oxygen supplies; (b) Deployment of requisite HR training and mentoring of doctors and nurses for management of patients, strengthen ambulance services and centralized call center-based services for allocation of beds; (c) Suitable initiatives for (among other things) achieving and maintaining adequate level of testing, surveillance and risk communication for promoting wearing of masks, physical distancing, hand hygiene; (d) Sufficient referral linkages for districts with deficit infrastructure through deployment of additional ambulances, wherever necessary; and (iii) On 20 April 2021, the Ministry of Health and Family Welfare( MoHFW) wrote to the State Governments with their projections and reminded them also of the funding avenues being made available to all States under NHM funding, State Disaster Response Fund, and other initiatives. 21. The affidavits also note that the Central Government had developed a live portal with all the States and districts where they were asked to feed in their data of cases and details such as people under home isolation, on isolation beds (with or without oxygen) and on ICU beds. Further, the State Governments were also directed to feed in details of the COVID dedicated health care infrastructure created by them, besides the details of containment zones so specified by them. However, the Central Government has alleged that States and districts did not upload their data regularly enough. Additionally, there was also a Facility App which could be used by Covid Health facilities to monitor their patients as well as the availability of logistics with their health facility. However, the Central Government alleges that States, districts and facilities did not use this Facility App. C.2 National Policy for Admission in Hospitals 22. It has been submitted by the Central Government that health being a state subject, the medical infrastructure is largely created and maintained by the respective State Governments. Since we are yet to hear from the State Governments, we shall not be issuing any directions or making comprehensive observations in relation to this issue. 23. However, based on the affidavits submitted by the Central Government and the hearings which followed, we have come to understand that there is no national policy on how admissions must take place in the various tiers of hospitals (CCC, DCHC and DCH). Gaining admission into a hospital with a bed is one of the biggest challenges being faced by most individuals during this second wave of the COVID-19 pandemic. Left to their own devices, citizens have had to suffer immeasurable hardship. Different states and local authorities follow their own protocols. Differing standards for admission in different hospitals across the nation leads to chaos and uncertainty. The situation cannot brook any delay.
### Response:
1
### Explanation:
the political consequences of their failure to prevent famines. Democracy, on the other hand, would spread the penalty of famines to the ruling groups and political leaders as well. This gives them the political incentive to try to prevent any threatening famine, and since famines are in fact easy to prevent (the economic argument clicks into the political one at this stage), the approaching famines are firmly prevented. [Amartya Sen, Development as Freedom (Oxford University Press, 2000) at p. 180.]...As such, preventing clampdowns on sharing of information on online platforms is not just in the interest of individuals sharing the information, but the larger democratic structures of our nation. Without the ready availability of such information, it is entirely possible that the COVID-19 pandemic may turn into a tragedy worse than what it already is.64. The second reason is because sharing information widely will help in the creation of a collective public memory of this pandemic. The presence of collective public memory, which refers to an extant and taken-for-granted group memory(Theodore O. Prosise, The collective memory of the atomic bombings misrecognized as objective history: The case of the public opposition to the national air and space museums atom bomb exhibit, (1998) 62 Western Journal of Communication 3:316-347, pg 318), is important for the creation of knowledge of the problems plaguing us today, so they may be passed on across time(Bryan Hubbard and Marouf A. Hasian, Atomic Memories of the Enola Gay: Strategies of Remembrance at the National Air and Space Museum (1998) 1 Rhetoric and Public Affairs 3:363-385, pg 364). This is important since we do not have to travel back too much in our past to realise that the pandemic caused by the Spanish flu of 1918, which is said to have infected every third person in the world and killed between 50-100 million individuals (compared to the 17 million who died in World War I), has been almost entirely erased from our collective public memory(Jonathan Freedland, History suggests we may forget the pandemic sooner than we think (The Guardian, 29 January 2021) available at <https://www.theguardian.com/commentisfree/2021/jan/29/history-forget-pandemicspanish-flu-covid>). Therefore, the widespread sharing of information by individuals living through the COVID-19 pandemic becomes crucial. Furthermore, the role of Courts in creating and preserving this collective public memory cannot be understated. Professors Austin Sarat and Thomas R. Kearns, in their book History, Memory, and the Law, describe the function that is played by Courts in the following terms(Austin Sarat and Thomas R. Kearns, History, Memory, and the Law (University of Michigan Press, 2009) pgs 12-13):Law in the modern era is, we believe, one of the most important of our societys technologies for preserving memory. Just as the use of precedent to legitimate legal decisions fixes law in a particular relation to the past, memory may be attached, or attach itself, to law and be preserved in and through law. Where this is the case, it serves as one way of orienting ourselves to the future. As Drucilla Cornell puts it: Legal interpretation demands that we remember the future. In that phrase, Cornell reminds us that there are, in fact, two audiences for every legal act, the audience of the present and the audience of the future. Law materializes memory in documents, transcripts, written opinions; it re-enacts the past, both intentionally and unconsciously, and it is one place where the present speaks to the future through acts of commemoration.Because the litigated case creates a record, courts can become archives in which that record serves as the materialization of memory. Due process guarantees an opportunity to be heard by, and an opportunity to speak to, the future. It is the guarantee that legal institutions can be turned into museums of unnecessary, unjust, undeserved pain and death. The legal hearing provides lawyers and litigants an opportunity to write and record history by creating narratives of present injustices, and to insist on memory in the face of denial. By recording such history and constructing such narratives lawyers and litigants call on an imagined future to choose Justice over the jurispathic tendencies of the moment.Hence, in the present proceedings, we hope to not only initiate a dialogue so as to better tackle the current COVID-19 pandemic but also to preserve its memory in our public records, so that future generations may evaluate our efforts and learn from them.65. We speak not only as members of this Court, but also as grateful citizens of the country, and commend the outstanding work of our all healthcare professionals (doctors, nurses, healthcare workers, laboratory technicians, ward staff, ambulance drivers, crematorium workers etc.) during this crisis. They have truly gone beyond their call of duty and toiled day in and day out, relentlessly without rest amidst great challenges. It is absolutely necessary to take urgent steps for their well-being to ensure that our appreciation for their tremendous efforts is not reduced to rhetoric. This is especially important since another factor which affects how collective public memory of any event is created is by the rhetoric surrounding it(Nicole Maurantonio, The Politics of Memory in Kate Kenski and Kathleen Hall Jamieson (eds), The Oxford Handbook of Political Communication (Oxford University Press, 2014)). As such, our public memory of this public event has to transcend its conception as a war against the virus of COVID-19 itself, but rather to remember that it is the complex epidemiological circumstances that promote these outbreaks and the under-resourced health systems that are tasked with disease containment(Luke Shors, Waging Another Public Health War? (Think Global Health, 26 February 2020) available at <https://www.thinkglobalhealth.org/article/waging-another-public-health-war>). While the healthcare professionals have been at the forefront of tackling this crisis, we have to recognize their contribution as medical healthcare professionals who have undertaken to protect public health using proven scientific evidence and best practices and to serve to community at large(Elena N. Naumova, The traps of calling the public health response to COVID-19 an unexpected war against an invisible enemy (2020) Journal of Public Health Policy (2020) 41:233-237, pg 233), and not just as CORONA WARRIORS.
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Allana Sons Private Limited Vs. Foreign Exchange Regulation Appellate Board | (1), also that the sale of the goods is delayed to an extent which is unreasonable having regard to the ordinary course of trade :"provided that no proceedings in respect of any contravention of the provisions of this sub-section shall be instituted unless the prescribed period has expired and payment for the goods representing the full export value has not been made in the prescribed manner within the prescribed period. "( 22 ) THE case of the Department appears to be alleged contravention by the appellants of section 18 (2) (A) (a) (ii) in that where any export of goods has been made, no person shall except with the permission of the Reserve Bank, do or refrain from doing anything or take or refrain from taking any action which has the effect of securing. . . that payment for the goods is delayed beyond the period prescribed under Clause (a) of sub-section (1 ).( 23 ) IT is strongly urged by Shri Karmali that the appellants have not contravened the provisions of section 18 (2) of the FERA inasmuch as they have neither done nor refrained from doing anything and neither they did nor refrained from taking any action which had the effect of securing the payment of the said goods delayed beyond the prescribed period for its recovery. Shri Karmali also pointed out the finding of the Appellate Board as it appears in paragraphs 12 and 13 of the impugned order. It would be useful to reproduce the said finding:"12. I have considered the rival contentions of the parties. Events have taken place in an unforeseen manner and quite contrary to normal practices and one does not expect the carrier to deliver the goods to a consignee without proper documents and contrary to instructions. The Shipping Corporation of India was directed to unload the consignments of the appellants and to give delivery to the consignees without taking a proper security for the value of the goods so delivered. To this extent, I agree that the appellants were helpless in the matter. 13. However, considering the facts and circumstances of the case in its entirety and the fact that the appellants were the victims of the action of certain third parties, I feel a lenient view is called for regarding the penalty. ">( 24 ) ON the other hand, the learned Government Pleader took the stand that where the value of exported goods has not been repatriated to our country within the specified period, it is for the exporter to explain bona fides and the steps taken by him in securing repartition within the specified period. The party would be in the wrong if the delay in securing repatriation is beyond the specified period and would be guilty of contravention of section 18 (2) (A) (a) (ii) of the FERA. ( 25 ) IN the facts and circumstances which have been narrated by us in detail and which facts are not in dispute and to some extent the finding of the FERA Board also indicates that in fact the appellants despite due diligence were helpless in the matter. The events have taken place in an unforeseen manner and quite contrary to normal practice and as found by the Appellate Board the appellants were the victims of actions of certain third parties. ( 26 ) THIS has obvious reference to the telex messages exchanged between the BFDC and the Shipping Corporation of India as well as the Shipping Corporation of India and the local agent of Meka Trading Co. The contravention of section 18 (2) of the FERA would have occurred only for some volition on the part of the exporter in either doing or refraining from doing an act or either taking or refraining from taking an action. Obviously, therefore, from the phraseology as obtaining in section 18 (2) main part would indicate not only volition but some deliberate action or a deliberate act of refraining from taking any steps which results in securing one of the two modes of payment i. e. either not in accordance with the prescribed manner or being delayed beyond the prescribed period under Clause (a ). But if events occur which are beyond the ordinary control of the party and which despite diligence or bona fides the exporter would not have been able to secure payment within the specified period, in our opinion, there would be no contravention of section 18 (2) of the FERA. The present circumstances appear to indicate a helpless situation and a helpless party where we cannot visualise any contravention of section 18 (2) of the FERA. At any rate even assuming that there was a presumption that the appellants have failed to secure the payment within the prescribed time, the said presumption is rebuttable and the facts on record clearly show that the appellants have taken all reasonable steps to realise and recover payments and not only that, they had filed civil suit long before the department even thought of show-cause proceedings. This is, therefore, not a case where the party can be branded as guilty of contravention of section 18 (2 ). The documents of the transaction, the conditions of transfer and in particular the instructions that under the said Bill of Lading the cargo of Allana Sons was to be delivered to the order of Bank of Sadarat Iran, Iranshahr, Snomali Branch and the party to be notified was Meka Trading Co. , shows that the exporters had taken all necessary precautions for realising the foreign exchange in the value of the goods through banking channel. It is only because of the action of the third parties which have immoveablised them from proceeding further in recovering the foreign exchange directly and have been constrained to file civil suit for damages against the BFDC and the Shipping Corporation of India. In the result, therefore, the impugned judgment of the Appellate Board and that of the Adjudicating Authority will have to be quashed and set aside. Proceedings in show-cau | 1[ds]( 25 ) IN the facts and circumstances which have been narrated by us in detail and which facts are not in dispute and to some extent the finding of the FERA Board also indicates that in fact the appellants despite due diligence were helpless in the matter. The events have taken place in an unforeseen manner and quite contrary to normal practice and as found by the Appellate Board the appellants were the victims of actions of certain third26 ) THIS has obvious reference to the telex messages exchanged between the BFDC and the Shipping Corporation of India as well as the Shipping Corporation of India and the local agent of Meka Trading Co. The contravention of section 18 (2) of the FERA would have occurred only for some volition on the part of the exporter in either doing or refraining from doing an act or either taking or refraining from taking an action. Obviously, therefore, from the phraseology as obtaining in section 18 (2) main part would indicate not only volition but some deliberate action or a deliberate act of refraining from taking any steps which results in securing one of the two modes of payment i. e. either not in accordance with the prescribed manner or being delayed beyond the prescribed period under Clause (a ). But if events occur which are beyond the ordinary control of the party and which despite diligence or bona fides the exporter would not have been able to secure payment within the specified period, in our opinion, there would be no contravention of section 18 (2) of the FERA. The present circumstances appear to indicate a helpless situation and a helpless party where we cannot visualise any contravention of section 18 (2) of the FERA. At any rate even assuming that there was a presumption that the appellants have failed to secure the payment within the prescribed time, the said presumption is rebuttable and the facts on record clearly show that the appellants have taken all reasonable steps to realise and recover payments and not only that, they had filed civil suit long before the department even thought ofproceedings. This is, therefore, not a case where the party can be branded as guilty of contravention of section 18 (2 ). The documents of the transaction, the conditions of transfer and in particular the instructions that under the said Bill of Lading the cargo of Allana Sons was to be delivered to the order of Bank of Sadarat Iran, Iranshahr, Snomali Branch and the party to be notified was Meka Trading Co. , shows that the exporters had taken all necessary precautions for realising the foreign exchange in the value of the goods through banking channel. It is only because of the action of the third parties which have immoveablised them from proceeding further in recovering the foreign exchange directly and have been constrained to file civil suit for damages against the BFDC and the Shipping Corporation of India. In the result, therefore, the impugned judgment of the Appellate Board and that of the Adjudicating Authority will have to be quashed and set aside. | 1 | 3,222 | 561 | ### 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:
(1), also that the sale of the goods is delayed to an extent which is unreasonable having regard to the ordinary course of trade :"provided that no proceedings in respect of any contravention of the provisions of this sub-section shall be instituted unless the prescribed period has expired and payment for the goods representing the full export value has not been made in the prescribed manner within the prescribed period. "( 22 ) THE case of the Department appears to be alleged contravention by the appellants of section 18 (2) (A) (a) (ii) in that where any export of goods has been made, no person shall except with the permission of the Reserve Bank, do or refrain from doing anything or take or refrain from taking any action which has the effect of securing. . . that payment for the goods is delayed beyond the period prescribed under Clause (a) of sub-section (1 ).( 23 ) IT is strongly urged by Shri Karmali that the appellants have not contravened the provisions of section 18 (2) of the FERA inasmuch as they have neither done nor refrained from doing anything and neither they did nor refrained from taking any action which had the effect of securing the payment of the said goods delayed beyond the prescribed period for its recovery. Shri Karmali also pointed out the finding of the Appellate Board as it appears in paragraphs 12 and 13 of the impugned order. It would be useful to reproduce the said finding:"12. I have considered the rival contentions of the parties. Events have taken place in an unforeseen manner and quite contrary to normal practices and one does not expect the carrier to deliver the goods to a consignee without proper documents and contrary to instructions. The Shipping Corporation of India was directed to unload the consignments of the appellants and to give delivery to the consignees without taking a proper security for the value of the goods so delivered. To this extent, I agree that the appellants were helpless in the matter. 13. However, considering the facts and circumstances of the case in its entirety and the fact that the appellants were the victims of the action of certain third parties, I feel a lenient view is called for regarding the penalty. ">( 24 ) ON the other hand, the learned Government Pleader took the stand that where the value of exported goods has not been repatriated to our country within the specified period, it is for the exporter to explain bona fides and the steps taken by him in securing repartition within the specified period. The party would be in the wrong if the delay in securing repatriation is beyond the specified period and would be guilty of contravention of section 18 (2) (A) (a) (ii) of the FERA. ( 25 ) IN the facts and circumstances which have been narrated by us in detail and which facts are not in dispute and to some extent the finding of the FERA Board also indicates that in fact the appellants despite due diligence were helpless in the matter. The events have taken place in an unforeseen manner and quite contrary to normal practice and as found by the Appellate Board the appellants were the victims of actions of certain third parties. ( 26 ) THIS has obvious reference to the telex messages exchanged between the BFDC and the Shipping Corporation of India as well as the Shipping Corporation of India and the local agent of Meka Trading Co. The contravention of section 18 (2) of the FERA would have occurred only for some volition on the part of the exporter in either doing or refraining from doing an act or either taking or refraining from taking an action. Obviously, therefore, from the phraseology as obtaining in section 18 (2) main part would indicate not only volition but some deliberate action or a deliberate act of refraining from taking any steps which results in securing one of the two modes of payment i. e. either not in accordance with the prescribed manner or being delayed beyond the prescribed period under Clause (a ). But if events occur which are beyond the ordinary control of the party and which despite diligence or bona fides the exporter would not have been able to secure payment within the specified period, in our opinion, there would be no contravention of section 18 (2) of the FERA. The present circumstances appear to indicate a helpless situation and a helpless party where we cannot visualise any contravention of section 18 (2) of the FERA. At any rate even assuming that there was a presumption that the appellants have failed to secure the payment within the prescribed time, the said presumption is rebuttable and the facts on record clearly show that the appellants have taken all reasonable steps to realise and recover payments and not only that, they had filed civil suit long before the department even thought of show-cause proceedings. This is, therefore, not a case where the party can be branded as guilty of contravention of section 18 (2 ). The documents of the transaction, the conditions of transfer and in particular the instructions that under the said Bill of Lading the cargo of Allana Sons was to be delivered to the order of Bank of Sadarat Iran, Iranshahr, Snomali Branch and the party to be notified was Meka Trading Co. , shows that the exporters had taken all necessary precautions for realising the foreign exchange in the value of the goods through banking channel. It is only because of the action of the third parties which have immoveablised them from proceeding further in recovering the foreign exchange directly and have been constrained to file civil suit for damages against the BFDC and the Shipping Corporation of India. In the result, therefore, the impugned judgment of the Appellate Board and that of the Adjudicating Authority will have to be quashed and set aside. Proceedings in show-cau
### Response:
1
### Explanation:
( 25 ) IN the facts and circumstances which have been narrated by us in detail and which facts are not in dispute and to some extent the finding of the FERA Board also indicates that in fact the appellants despite due diligence were helpless in the matter. The events have taken place in an unforeseen manner and quite contrary to normal practice and as found by the Appellate Board the appellants were the victims of actions of certain third26 ) THIS has obvious reference to the telex messages exchanged between the BFDC and the Shipping Corporation of India as well as the Shipping Corporation of India and the local agent of Meka Trading Co. The contravention of section 18 (2) of the FERA would have occurred only for some volition on the part of the exporter in either doing or refraining from doing an act or either taking or refraining from taking an action. Obviously, therefore, from the phraseology as obtaining in section 18 (2) main part would indicate not only volition but some deliberate action or a deliberate act of refraining from taking any steps which results in securing one of the two modes of payment i. e. either not in accordance with the prescribed manner or being delayed beyond the prescribed period under Clause (a ). But if events occur which are beyond the ordinary control of the party and which despite diligence or bona fides the exporter would not have been able to secure payment within the specified period, in our opinion, there would be no contravention of section 18 (2) of the FERA. The present circumstances appear to indicate a helpless situation and a helpless party where we cannot visualise any contravention of section 18 (2) of the FERA. At any rate even assuming that there was a presumption that the appellants have failed to secure the payment within the prescribed time, the said presumption is rebuttable and the facts on record clearly show that the appellants have taken all reasonable steps to realise and recover payments and not only that, they had filed civil suit long before the department even thought ofproceedings. This is, therefore, not a case where the party can be branded as guilty of contravention of section 18 (2 ). The documents of the transaction, the conditions of transfer and in particular the instructions that under the said Bill of Lading the cargo of Allana Sons was to be delivered to the order of Bank of Sadarat Iran, Iranshahr, Snomali Branch and the party to be notified was Meka Trading Co. , shows that the exporters had taken all necessary precautions for realising the foreign exchange in the value of the goods through banking channel. It is only because of the action of the third parties which have immoveablised them from proceeding further in recovering the foreign exchange directly and have been constrained to file civil suit for damages against the BFDC and the Shipping Corporation of India. In the result, therefore, the impugned judgment of the Appellate Board and that of the Adjudicating Authority will have to be quashed and set aside.
|
Municipal Corporation of the City of Jabalpur Vs. Kishan Lal & Others | all reasonable hours and to publish the notification in the mode prescribed and to proceed to make a draft improvement scheme and to submit the same to the Improvements Committee for approval. The purposes for which the improvement scheme can be prepared are mentioned in clauses (A) and (B) of sub-s. (1) Clause (A) mentions three purposes for the improvement scheme and one of these is mentioned in sub-cl. (c) and is the necessity to provide for the construction of buildings for the accommodation of the poorer and working classes. Clause (B) authorizes the preparation of an improvement scheme when the Chief Executive Officer considers it expedient to form new or to alter existing streets including bridges, causeways and culverts in any part of the city for the purposes mentioned in that clause, one of the purpose being to provide building sites for the expansion of the city. 5. The first notification, dated June 12, 1956, purported to be issued under. 277 (1) (B) (i). The respondent contested its validity on the ground that the purpose behind the impugned scheme was not the forming of new or the altering of existing streets under Cl. (B) and that, therefore, the notification was bad. 6. The appellant appears to have seen the force in the contention for the respondent and tried to support the validity of the scheme on the ground that it had been framed to provide for the construction of buildings for the accommodation of the poorer and working classes. The precise scheme was not produced before the High Court. It was however, there conceded that the scheme envisaged making available to persons of the middle class either plots for house building or houses built by the Corporation at a cost of Rs. 7, 500 each. The High Court also referred to the note of the Chief Executive Officer in his memorandum, dated November 17, 1957 to the State Government to the effect that the area proposed to be acquired under the scheme would be developed, layed out and sold to public on no. loss and no. profit system. On the basis of this note and the concession made for the appellant, the High Court held that the purpose of the impugned scheme was not to provide for the construction of buildings for the accommodation of the poorer and working classes and, on that ground, quashed the impugned notifications of the Land Acquisition Officer. 7. The order of the High Court has been challenged in this Court on two grounds. One is that the purpose of the impugned scheme was to provide for the construction of buildings for the accommodation of the poorer and working classes and the other is that Cl. (B) of sub-s. (1) provided for the making of an improvement scheme for the purposes of providing building sites for the expansion of the City. We do not agree with either of the contentions. 8. The relevant portion of Cl. (B) of sub-s. (1) would read :"If it appears to the Chief Executive Officer for the purpose of providing building sites for the expansion of the City or of... or of...or of.. it is expedient of form new or to alter existing streets including bridges, causeways and culverts, in any part of the City, the Chief Executive Officer may with the previous approval of the Corporation, which shall not be given unless the Corporation is satisfied of the sufficiency of its resources, draw up a notification stating that the Chief Executive Officer proposes to make an improvement scheme and the area to which the resolution relates and naming the place where a map of the area may be seen at all reasonable hours." This clause does not authorise the making of the improvement scheme for the purpose of providing building sites for the expansion of the city but provides for the making of such a scheme if it is expedient, for the purpose of providing building sites for the expansion of the city, to form new or to alter existing streets in any part of the city. The impugned scheme is not for forming new or altering existing streets for the purpose of providing building sites for the expansion of the city but is for acquiring land to develop plots and then to sell the plots or to sell the plots with buildings constructed on it to the public. 9. The impugned scheme was rightly held by the High Court to be not for the purpose of constructing buildings for the accommodation of the poorer and working classes. We do not agree with the contention for the appellant that the middle classes or the public capable of purchasing houses costing about Rs. 7, 500 could come under the expression poorer and working classes. The expression has acquired a special meaning. Websters New World Dictionary defines middle class as the social class between the aristocracy or very wealthy and the working class, or proletariat : owners of small businesses, professional and white-collar workers, well-to-do farmers, etc. It defines working class to mean workers as a class, especially industrial workers as a class : proletariat. The word poor means lacking material possessions : having little or no. means to support oneself; needy; impoverished. The expression poorer and working classes contemplated by sub-cl. (c) of Cl. (A) of sub-se # ction (1) Section 277 refers to such indigent and working people who need accommodation and cannot on their own make arrangements for reasonable accommodation. Such a construction of the expression finds support from the fact that sub-cl. (c) speaks of the necessity to provide for the construction of buildings for the accommodation of the poorer and working classes and not of the necessity of merely providing them with plots to construct buildings or to sell them buildings erected on the land acquired. We are of opinion that the impugned scheme cannot be said to be one for the purpose of constructing buildings for the accommodation of the poorer and working classes. | 0[ds]This clause does not authorise the making of the improvement scheme for the purpose of providing building sites for the expansion of the city but provides for the making of such a scheme if it is expedient, for the purpose of providing building sites for the expansion of the city, to form new or to alter existing streets in any part of the city. The impugned scheme is not for forming new or altering existing streets for the purpose of providing building sites for the expansion of the city but is for acquiring land to develop plots and then to sell the plots or to sell the plots with buildings constructed on it to the public9. The impugned scheme was rightly held by the High Court to be not for the purpose of constructing buildings for the accommodation of the poorer and working classes. We do not agree with the contention for the appellant that the middle classes or the public capable of purchasing houses costing about Rs. 7, 500 could come under the expression poorer and working classes. The expression has acquired a special meaning. Websters New World Dictionary defines middle class as the social class between the aristocracy or very wealthy and the working class, or proletariat : owners of small businesses, professional andr workers,o farmers, etc. It defines working class to mean workers as a class, especially industrial workers as a class : proletariat. The word poor means lacking material possessions : having little or no. means to support oneself; needy; impoverished. The expression poorer and working classes contemplated by. (c) of Cl. (A) ofsubse# ction (1) Section 277 refers to such indigent and working people who need accommodation and cannot on their own make arrangements for reasonable accommodation. Such a construction of the expression finds support from the fact that. (c) speaks of the necessity to provide for the construction of buildings for the accommodation of the poorer and working classes and not of the necessity of merely providing them with plots to construct buildings or to sell them buildings erected on the land acquired. We are of opinion that the impugned scheme cannot be said to be one for the purpose of constructing buildings for the accommodation of the poorer and working classes. | 0 | 1,579 | 420 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
### Input:
all reasonable hours and to publish the notification in the mode prescribed and to proceed to make a draft improvement scheme and to submit the same to the Improvements Committee for approval. The purposes for which the improvement scheme can be prepared are mentioned in clauses (A) and (B) of sub-s. (1) Clause (A) mentions three purposes for the improvement scheme and one of these is mentioned in sub-cl. (c) and is the necessity to provide for the construction of buildings for the accommodation of the poorer and working classes. Clause (B) authorizes the preparation of an improvement scheme when the Chief Executive Officer considers it expedient to form new or to alter existing streets including bridges, causeways and culverts in any part of the city for the purposes mentioned in that clause, one of the purpose being to provide building sites for the expansion of the city. 5. The first notification, dated June 12, 1956, purported to be issued under. 277 (1) (B) (i). The respondent contested its validity on the ground that the purpose behind the impugned scheme was not the forming of new or the altering of existing streets under Cl. (B) and that, therefore, the notification was bad. 6. The appellant appears to have seen the force in the contention for the respondent and tried to support the validity of the scheme on the ground that it had been framed to provide for the construction of buildings for the accommodation of the poorer and working classes. The precise scheme was not produced before the High Court. It was however, there conceded that the scheme envisaged making available to persons of the middle class either plots for house building or houses built by the Corporation at a cost of Rs. 7, 500 each. The High Court also referred to the note of the Chief Executive Officer in his memorandum, dated November 17, 1957 to the State Government to the effect that the area proposed to be acquired under the scheme would be developed, layed out and sold to public on no. loss and no. profit system. On the basis of this note and the concession made for the appellant, the High Court held that the purpose of the impugned scheme was not to provide for the construction of buildings for the accommodation of the poorer and working classes and, on that ground, quashed the impugned notifications of the Land Acquisition Officer. 7. The order of the High Court has been challenged in this Court on two grounds. One is that the purpose of the impugned scheme was to provide for the construction of buildings for the accommodation of the poorer and working classes and the other is that Cl. (B) of sub-s. (1) provided for the making of an improvement scheme for the purposes of providing building sites for the expansion of the City. We do not agree with either of the contentions. 8. The relevant portion of Cl. (B) of sub-s. (1) would read :"If it appears to the Chief Executive Officer for the purpose of providing building sites for the expansion of the City or of... or of...or of.. it is expedient of form new or to alter existing streets including bridges, causeways and culverts, in any part of the City, the Chief Executive Officer may with the previous approval of the Corporation, which shall not be given unless the Corporation is satisfied of the sufficiency of its resources, draw up a notification stating that the Chief Executive Officer proposes to make an improvement scheme and the area to which the resolution relates and naming the place where a map of the area may be seen at all reasonable hours." This clause does not authorise the making of the improvement scheme for the purpose of providing building sites for the expansion of the city but provides for the making of such a scheme if it is expedient, for the purpose of providing building sites for the expansion of the city, to form new or to alter existing streets in any part of the city. The impugned scheme is not for forming new or altering existing streets for the purpose of providing building sites for the expansion of the city but is for acquiring land to develop plots and then to sell the plots or to sell the plots with buildings constructed on it to the public. 9. The impugned scheme was rightly held by the High Court to be not for the purpose of constructing buildings for the accommodation of the poorer and working classes. We do not agree with the contention for the appellant that the middle classes or the public capable of purchasing houses costing about Rs. 7, 500 could come under the expression poorer and working classes. The expression has acquired a special meaning. Websters New World Dictionary defines middle class as the social class between the aristocracy or very wealthy and the working class, or proletariat : owners of small businesses, professional and white-collar workers, well-to-do farmers, etc. It defines working class to mean workers as a class, especially industrial workers as a class : proletariat. The word poor means lacking material possessions : having little or no. means to support oneself; needy; impoverished. The expression poorer and working classes contemplated by sub-cl. (c) of Cl. (A) of sub-se # ction (1) Section 277 refers to such indigent and working people who need accommodation and cannot on their own make arrangements for reasonable accommodation. Such a construction of the expression finds support from the fact that sub-cl. (c) speaks of the necessity to provide for the construction of buildings for the accommodation of the poorer and working classes and not of the necessity of merely providing them with plots to construct buildings or to sell them buildings erected on the land acquired. We are of opinion that the impugned scheme cannot be said to be one for the purpose of constructing buildings for the accommodation of the poorer and working classes.
### Response:
0
### Explanation:
This clause does not authorise the making of the improvement scheme for the purpose of providing building sites for the expansion of the city but provides for the making of such a scheme if it is expedient, for the purpose of providing building sites for the expansion of the city, to form new or to alter existing streets in any part of the city. The impugned scheme is not for forming new or altering existing streets for the purpose of providing building sites for the expansion of the city but is for acquiring land to develop plots and then to sell the plots or to sell the plots with buildings constructed on it to the public9. The impugned scheme was rightly held by the High Court to be not for the purpose of constructing buildings for the accommodation of the poorer and working classes. We do not agree with the contention for the appellant that the middle classes or the public capable of purchasing houses costing about Rs. 7, 500 could come under the expression poorer and working classes. The expression has acquired a special meaning. Websters New World Dictionary defines middle class as the social class between the aristocracy or very wealthy and the working class, or proletariat : owners of small businesses, professional andr workers,o farmers, etc. It defines working class to mean workers as a class, especially industrial workers as a class : proletariat. The word poor means lacking material possessions : having little or no. means to support oneself; needy; impoverished. The expression poorer and working classes contemplated by. (c) of Cl. (A) ofsubse# ction (1) Section 277 refers to such indigent and working people who need accommodation and cannot on their own make arrangements for reasonable accommodation. Such a construction of the expression finds support from the fact that. (c) speaks of the necessity to provide for the construction of buildings for the accommodation of the poorer and working classes and not of the necessity of merely providing them with plots to construct buildings or to sell them buildings erected on the land acquired. We are of opinion that the impugned scheme cannot be said to be one for the purpose of constructing buildings for the accommodation of the poorer and working classes.
|
Commissioner of Income Tax Vs. Annamalaiar Mills | 1. We have heard learned Counsel for the parties and perused the impugned order dated January 20, 2004 passed by the Division Bench of the High Court of Judicature at Madras in T.C. No. 55 of 2001. Briefly stated, the facts of this case are as follows: M/s. Annamalaiar Mills (P.) Ltd., Respondent herein is a holding company of M/s. Annamalaiar Textiles (P.) Ltd. Hundred percent shares of M/s. Annamalaiar Textiles (P.) Ltd. were held by the Respondent-company. In the Respondent-company, there were two groups of shareholders; the majority shareholder called Group A was having 61.26 per cent shares whereas the minority shareholders called Group B were holding 38.74 percent, shares.2. An agreement was entered into between the two groups on June 24, 1985 by which Group A came to hold all the shares in the holding company, i.e., the Respondent herein and Group B was given 100 percent. shares in the subsidiary company, i.e., M/s. Annamalaiar Textiles (P.) Ltd. However, M/s. Annamalaiar Textiles (P.) Ltd. also paid a sum of Rs. 42.45 lakhs to the Respondent-company. 3. Proceedings under the Gift-tax Act were initiated in respect of payment of Rs. 42.45 lakhs received by the Respondent-company. However, we are not concerned with the question of levy of gift-tax under the present proceedings. 4. The Assessing Officer treated the amount of Rs. 42.45 lakhs paid by the M/s. Annamalaiar Textiles (P.) Ltd. to the Respondent-company as capital gains on the footing that since both the companies are now 100 percent. owned by Group A or Group B, as the case may be, payment of Rs. 42.45 lakhs was to offset valuation of the shares of M/s. Annamalaiar Textiles (P.) Ltd. 5. The Assessing Officer opined that the Respondent herein-Assessee was liable to pay tax for capital gains which was upheld in the appeal before the Commissioner of Income-tax (Appeals). However, the Income-tax Appellate Tribunal, Madras, in appeal preferred by the Respondent herein accepted the pleas put forth by the Respondent herein, set aside the assessment and restored the matter to the Income-tax Officer so that the asses-see may approach the Central Board of Direct Taxes. The Income-tax Officer was further directed to finalise the assessment in accordance with the directions that may be given by the Central Board of Direct Taxes. 6. The matter was taken up before the High Court of Madras and the order of the Tribunal was upheld by the Madras High Court. The sole question which arises for our consideration is as to whether the sum of Rs. 42.45 lakhs paid by M/s. Annamalaiar Textiles (P.) Ltd. to the Respondent-company is liable to any capital gains or not. 7. It is not in dispute that M/s. Annamalaiar Textiles (P.) Ltd. did not pay any amount to the shareholders who ultimately got the shares transferred in their names. The Respondent was holding 100 percent. shares of M/s. Annamalaiar Textiles (P.) Ltd., before it was transferred to Group B. No payment was made to the shareholders belonging to Group B and, therefore, the question of there being any capital gains at the hands of the Respondent herein does not arise. 8. Needless to mention that the transaction of payment of Rs. 42.45 lakhs had been subjected under the Gift-tax Act and the Department cannot claim both under the Gift-tax Act and also levy tax under the Income-tax Act. | 0[ds]7. It is not in dispute that M/s. Annamalaiar Textiles (P.) Ltd. did not pay any amount to the shareholders who ultimately got the shares transferred in their names. The Respondent was holding 100 percent. shares of M/s. Annamalaiar Textiles (P.) Ltd., before it was transferred to Group B. No payment was made to the shareholders belonging to Group B and, therefore, the question of there being any capital gains at the hands of the Respondent herein does not arise8. Needless to mention that the transaction of payment of Rs. 42.45 lakhs had been subjected under the Gift-tax Act and the Department cannot claim both under the Gift-tax Act and also levy tax under the Income-tax Act. | 0 | 651 | 138 | ### 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:
1. We have heard learned Counsel for the parties and perused the impugned order dated January 20, 2004 passed by the Division Bench of the High Court of Judicature at Madras in T.C. No. 55 of 2001. Briefly stated, the facts of this case are as follows: M/s. Annamalaiar Mills (P.) Ltd., Respondent herein is a holding company of M/s. Annamalaiar Textiles (P.) Ltd. Hundred percent shares of M/s. Annamalaiar Textiles (P.) Ltd. were held by the Respondent-company. In the Respondent-company, there were two groups of shareholders; the majority shareholder called Group A was having 61.26 per cent shares whereas the minority shareholders called Group B were holding 38.74 percent, shares.2. An agreement was entered into between the two groups on June 24, 1985 by which Group A came to hold all the shares in the holding company, i.e., the Respondent herein and Group B was given 100 percent. shares in the subsidiary company, i.e., M/s. Annamalaiar Textiles (P.) Ltd. However, M/s. Annamalaiar Textiles (P.) Ltd. also paid a sum of Rs. 42.45 lakhs to the Respondent-company. 3. Proceedings under the Gift-tax Act were initiated in respect of payment of Rs. 42.45 lakhs received by the Respondent-company. However, we are not concerned with the question of levy of gift-tax under the present proceedings. 4. The Assessing Officer treated the amount of Rs. 42.45 lakhs paid by the M/s. Annamalaiar Textiles (P.) Ltd. to the Respondent-company as capital gains on the footing that since both the companies are now 100 percent. owned by Group A or Group B, as the case may be, payment of Rs. 42.45 lakhs was to offset valuation of the shares of M/s. Annamalaiar Textiles (P.) Ltd. 5. The Assessing Officer opined that the Respondent herein-Assessee was liable to pay tax for capital gains which was upheld in the appeal before the Commissioner of Income-tax (Appeals). However, the Income-tax Appellate Tribunal, Madras, in appeal preferred by the Respondent herein accepted the pleas put forth by the Respondent herein, set aside the assessment and restored the matter to the Income-tax Officer so that the asses-see may approach the Central Board of Direct Taxes. The Income-tax Officer was further directed to finalise the assessment in accordance with the directions that may be given by the Central Board of Direct Taxes. 6. The matter was taken up before the High Court of Madras and the order of the Tribunal was upheld by the Madras High Court. The sole question which arises for our consideration is as to whether the sum of Rs. 42.45 lakhs paid by M/s. Annamalaiar Textiles (P.) Ltd. to the Respondent-company is liable to any capital gains or not. 7. It is not in dispute that M/s. Annamalaiar Textiles (P.) Ltd. did not pay any amount to the shareholders who ultimately got the shares transferred in their names. The Respondent was holding 100 percent. shares of M/s. Annamalaiar Textiles (P.) Ltd., before it was transferred to Group B. No payment was made to the shareholders belonging to Group B and, therefore, the question of there being any capital gains at the hands of the Respondent herein does not arise. 8. Needless to mention that the transaction of payment of Rs. 42.45 lakhs had been subjected under the Gift-tax Act and the Department cannot claim both under the Gift-tax Act and also levy tax under the Income-tax Act.
### Response:
0
### Explanation:
7. It is not in dispute that M/s. Annamalaiar Textiles (P.) Ltd. did not pay any amount to the shareholders who ultimately got the shares transferred in their names. The Respondent was holding 100 percent. shares of M/s. Annamalaiar Textiles (P.) Ltd., before it was transferred to Group B. No payment was made to the shareholders belonging to Group B and, therefore, the question of there being any capital gains at the hands of the Respondent herein does not arise8. Needless to mention that the transaction of payment of Rs. 42.45 lakhs had been subjected under the Gift-tax Act and the Department cannot claim both under the Gift-tax Act and also levy tax under the Income-tax Act.
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Deena Vs. State of U.P | Deena was found guilty of murder and sentenced to imprisonment for life. In that case the deceased Nainsukh gave evidence against Deena as an eye-witness. About two months before the murder of Nainsukh, Deena was released on hail and it was rumoured that Deena was saying that now when he had come out of jail he would teach a lesson to Nainsukh. Nainsukh, Hari Singh and their relations took the threat seriously and were living cautiously. On the date of the occurrence, according to P.W. 1, a lantern was burning and at about 4 oclock in the morning he was awakened by the barking of the dogs. Four or five other persons came along with Deena. Deena and one of his companions had torches in their hands and they came flashing their torches. Deena and the other accused came at the Chaupal from the staircase on the eastern side. After coming over the Chabutra of the Chaupal the accused stated "Nainsukh, beware, now I will teach you the lesson for giving the evidence". While flashing the torches on the deceased Deena fired at Nainsukh aiming towards his head. The shot hit Nainsukh on the head. The other shot fired by Deena injured Chandra Pal and the third shot hit the prosecution witness Hari Singh. Hari Singh received a n injury on his right shoulder.The plea that was made by the defence on the evidence of P.W. 1 was that it cannot be safely relied on. It was submitted that the other injured witness Chandra Pal who was examined as a court witness did not fully support the evidence of the prosecution. We have gone through the testimony of P.W. 1 and witness Chandra Pal and we do not see any material contradiction. The enmity between Deena on the one side and the deceased and his family on the other side is not seriously contested. The deceased Nainsukh gave evidence against Deena in the murder case in which Ram Chandra was killed. When Deena was released on bail he wanted to teach a lesson to the witness Nainsukh who had appeared against him. This resulted in Deena shooting the deceased to death. The motive as alleged by the prosecution stands amply proved.6. So far as the scene of the offence is concerned it was not seriously disputed before the High Court. It was submitted before us that no blood stains were scrapped from the scene which circumstance would show that the occurrence took place at some other place. It is seen that there was a bundle of straw and a cot at the scene. The strings of the cot and as well as the straws were stained with blood. The Serologist had found human blood on the straws. We do not find any difficultly in accepting the finding of the High Court that the occurrence took place at the site alleged by the prosecution.7. The only question that requires consideration is whether there was sufficient light at the scene of occurrence to enable the witness to recognise the accused. Because of the motive, it is highly probable that Nainsukh, Hari Singh an d the family slept with the light burning on the platform which was the scene of offence. Three shots were fired and there could have been no difficulty in P.W. 1 identifying the appellant Deena. It is common ground that the witness knew Deena very well. The lantern that was burning was produced by P.W. 2, Nihal Singh, as soon as the Investigating officer came to the scene of occurrence. The witness was sleeping to the south of the deceased person at a distance of few feet and w e do not think there could have been any difficulty in identifying the assailant. The High Court has fully considered the question as to whether P.W. 1 would have identified the assailant and has come to the conclusion that the prosecution has established that the lantern was burning and the assailants used torches which enabled the recognition of the accused at the time of the incident. P.W. 1 Hari Singh is a natural witness and his presence cannot be disputed as he had sustained a g un shot injury. He had no particular motive for falsely implicating Deena the accused.The court witness Chandra Pal did not fully support the prosecution except that the incident took place at the chaupal as alleged by the prosecution. But we do not feel any justification for rejecting the testimony of P.W. 1 because of the contradiction in the testimony of C.W. 1 Chandra Pal. We are inclined to agree with the High Court that Chandra Pal was won over by the defence. We also agree with the High Court and find that the appellant Deena was guilty of an offence under section 302 I.P.C. in causing the death of Nainsukh.8. The High Court confirmed the extreme penalty of law imposed by the Sessions Court. The Sessions Court in imposing the death sentence found that the appellant is a desperate character and that while he was on bail in Rare, Chandra murder case he committed the murder of Nainsukh one of the prosecution witnesses in Ram Chandra murder case. As the offence was committed by a person under a sentence of imprisonment for life for an offence under section 302 I.P.C. the Sessions Court inflicted the extreme penalty. As a charge under section 303 I.P.C. was not framed and as the parties are not able to tell us the result of the appeal filed by Deena in Ram Chandras case, we refrain from invoking the provisions of section 303 I.P.C. Regarding the sentence after giving our serious and anxious consideration, we find ourselves unable to come to any different conclusion from that arrived at by the trial Judge and the High Court. The offence was committed after deliberate planning in the night when the victim was sleeping. It was for the purpose of teaching a lesson to a witness who gave evidence against the accused. | 0[ds]5. Hari Singh P.W. 1 has spoken of the motive. About 4 or 6 years prior to the occurrence one Ram Chandra was murdered. Deena was one of the accused in the case. Deena was found guilty of murder and sentenced to imprisonment for life. In that case the deceased Nainsukh gave evidence against Deena as anAbout two months before the murder of Nainsukh, Deena was released on hail and it was rumoured that Deena was saying that now when he had come out of jail he would teach a lesson to Nainsukh. Nainsukh, Hari Singh and their relations took the threat seriously and were living cautiously. On the date of the occurrence, according to P.W. 1, a lantern was burning and at about 4 oclock in the morning he was awakened by the barking of the dogs. Four or five other persons came along with Deena. Deena and one of his companions had torches in their hands and they came flashing their torches. Deena and the other accused came at the Chaupal from the staircase on the eastern side. After coming over the Chabutra of the Chaupal the accused stated "Nainsukh, beware, now I will teach you the lesson for giving the evidence". While flashing the torches on the deceased Deena fired at Nainsukh aiming towards his head. The shot hit Nainsukh on the head. The other shot fired by Deena injured Chandra Pal and the third shot hit the prosecution witness Hari Singh. Hari Singh received a n injury on his right shoulder.The plea that was made by the defence on the evidence of P.W. 1 was that it cannot be safely relied on.It was submitted that the other injured witness Chandra Pal who was examined as a court witness did not fully support the evidence of the prosecution.We have gone through the testimony of P.W. 1 and witness Chandra Pal and we do not see any material contradiction. The enmity between Deena on the one side and the deceased and his family on the other side is not seriously contested. The deceased Nainsukh gave evidence against Deena in the murder case in which Ram Chandra was killed. When Deena was released on bail he wanted to teach a lesson to the witness Nainsukh who had appeared against him. This resulted in Deena shooting the deceased to death. The motive as alleged by the prosecution stands amplyis seen that there was a bundle of straw and a cot at the scene. The strings of the cot and as well as the straws were stained with blood. The Serologist had found human blood on the straws. We do not find any difficultly in accepting the finding of the High Court that the occurrence took place at the site alleged by theof the motive, it is highly probable that Nainsukh, Hari Singh an d the family slept with the light burning on the platform which was the scene of offence. Three shots were fired and there could have been no difficulty in P.W. 1 identifying the appellant Deena. It is common ground that the witness knew Deena very well. The lantern that was burning was produced by P.W. 2, Nihal Singh, as soon as the Investigating officer came to the scene of occurrence. The witness was sleeping to the south of the deceased person at a distance of few feet and w e do not think there could have been any difficulty in identifying the assailant. The High Court has fully considered the question as to whether P.W. 1 would have identified the assailant and has come to the conclusion that the prosecution has established that the lantern was burning and the assailants used torches which enabled the recognition of the accused at the time of the incident. P.W. 1 Hari Singh is a natural witness and his presence cannot be disputed as he had sustained a g un shot injury. He had no particular motive for falsely implicating Deena the accused.The court witness Chandra Pal did not fully support the prosecution except that the incident took place at the chaupal as alleged by the prosecution. But we do not feel any justification for rejecting the testimony of P.W. 1 because of the contradiction in the testimony of C.W. 1 Chandra Pal. We are inclined to agree with the High Court that Chandra Pal was won over by the defence. We also agree with the High Court and find that the appellant Deena was guilty of an offence under section 302 I.P.C. in causing the death of Nainsukh.8. The High Court confirmed the extreme penalty of law imposed by the Sessions Court. The Sessions Court in imposing the death sentence found that the appellant is a desperate character and that while he was on bail in Rare, Chandra murder case he committed the murder of Nainsukh one of the prosecution witnesses in Ram Chandra murder case. As the offence was committed by a person under a sentence of imprisonment for life for an offence under section 302 I.P.C. the Sessions Court inflicted the extreme penalty. As a charge under section 303 I.P.C. was not framed and as the parties are not able to tell us the result of the appeal filed by Deena in Ram Chandras case, we refrain from invoking the provisions of section 303 I.P.C. Regarding the sentence after giving our serious and anxious consideration, we find ourselves unable to come to any different conclusion from that arrived at by the trial Judge and the High Court. The offence was committed after deliberate planning in the night when the victim was sleeping. It was for the purpose of teaching a lesson to a witness who gave evidence against the accused. | 0 | 1,676 | 1,027 | ### 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:
Deena was found guilty of murder and sentenced to imprisonment for life. In that case the deceased Nainsukh gave evidence against Deena as an eye-witness. About two months before the murder of Nainsukh, Deena was released on hail and it was rumoured that Deena was saying that now when he had come out of jail he would teach a lesson to Nainsukh. Nainsukh, Hari Singh and their relations took the threat seriously and were living cautiously. On the date of the occurrence, according to P.W. 1, a lantern was burning and at about 4 oclock in the morning he was awakened by the barking of the dogs. Four or five other persons came along with Deena. Deena and one of his companions had torches in their hands and they came flashing their torches. Deena and the other accused came at the Chaupal from the staircase on the eastern side. After coming over the Chabutra of the Chaupal the accused stated "Nainsukh, beware, now I will teach you the lesson for giving the evidence". While flashing the torches on the deceased Deena fired at Nainsukh aiming towards his head. The shot hit Nainsukh on the head. The other shot fired by Deena injured Chandra Pal and the third shot hit the prosecution witness Hari Singh. Hari Singh received a n injury on his right shoulder.The plea that was made by the defence on the evidence of P.W. 1 was that it cannot be safely relied on. It was submitted that the other injured witness Chandra Pal who was examined as a court witness did not fully support the evidence of the prosecution. We have gone through the testimony of P.W. 1 and witness Chandra Pal and we do not see any material contradiction. The enmity between Deena on the one side and the deceased and his family on the other side is not seriously contested. The deceased Nainsukh gave evidence against Deena in the murder case in which Ram Chandra was killed. When Deena was released on bail he wanted to teach a lesson to the witness Nainsukh who had appeared against him. This resulted in Deena shooting the deceased to death. The motive as alleged by the prosecution stands amply proved.6. So far as the scene of the offence is concerned it was not seriously disputed before the High Court. It was submitted before us that no blood stains were scrapped from the scene which circumstance would show that the occurrence took place at some other place. It is seen that there was a bundle of straw and a cot at the scene. The strings of the cot and as well as the straws were stained with blood. The Serologist had found human blood on the straws. We do not find any difficultly in accepting the finding of the High Court that the occurrence took place at the site alleged by the prosecution.7. The only question that requires consideration is whether there was sufficient light at the scene of occurrence to enable the witness to recognise the accused. Because of the motive, it is highly probable that Nainsukh, Hari Singh an d the family slept with the light burning on the platform which was the scene of offence. Three shots were fired and there could have been no difficulty in P.W. 1 identifying the appellant Deena. It is common ground that the witness knew Deena very well. The lantern that was burning was produced by P.W. 2, Nihal Singh, as soon as the Investigating officer came to the scene of occurrence. The witness was sleeping to the south of the deceased person at a distance of few feet and w e do not think there could have been any difficulty in identifying the assailant. The High Court has fully considered the question as to whether P.W. 1 would have identified the assailant and has come to the conclusion that the prosecution has established that the lantern was burning and the assailants used torches which enabled the recognition of the accused at the time of the incident. P.W. 1 Hari Singh is a natural witness and his presence cannot be disputed as he had sustained a g un shot injury. He had no particular motive for falsely implicating Deena the accused.The court witness Chandra Pal did not fully support the prosecution except that the incident took place at the chaupal as alleged by the prosecution. But we do not feel any justification for rejecting the testimony of P.W. 1 because of the contradiction in the testimony of C.W. 1 Chandra Pal. We are inclined to agree with the High Court that Chandra Pal was won over by the defence. We also agree with the High Court and find that the appellant Deena was guilty of an offence under section 302 I.P.C. in causing the death of Nainsukh.8. The High Court confirmed the extreme penalty of law imposed by the Sessions Court. The Sessions Court in imposing the death sentence found that the appellant is a desperate character and that while he was on bail in Rare, Chandra murder case he committed the murder of Nainsukh one of the prosecution witnesses in Ram Chandra murder case. As the offence was committed by a person under a sentence of imprisonment for life for an offence under section 302 I.P.C. the Sessions Court inflicted the extreme penalty. As a charge under section 303 I.P.C. was not framed and as the parties are not able to tell us the result of the appeal filed by Deena in Ram Chandras case, we refrain from invoking the provisions of section 303 I.P.C. Regarding the sentence after giving our serious and anxious consideration, we find ourselves unable to come to any different conclusion from that arrived at by the trial Judge and the High Court. The offence was committed after deliberate planning in the night when the victim was sleeping. It was for the purpose of teaching a lesson to a witness who gave evidence against the accused.
### Response:
0
### Explanation:
5. Hari Singh P.W. 1 has spoken of the motive. About 4 or 6 years prior to the occurrence one Ram Chandra was murdered. Deena was one of the accused in the case. Deena was found guilty of murder and sentenced to imprisonment for life. In that case the deceased Nainsukh gave evidence against Deena as anAbout two months before the murder of Nainsukh, Deena was released on hail and it was rumoured that Deena was saying that now when he had come out of jail he would teach a lesson to Nainsukh. Nainsukh, Hari Singh and their relations took the threat seriously and were living cautiously. On the date of the occurrence, according to P.W. 1, a lantern was burning and at about 4 oclock in the morning he was awakened by the barking of the dogs. Four or five other persons came along with Deena. Deena and one of his companions had torches in their hands and they came flashing their torches. Deena and the other accused came at the Chaupal from the staircase on the eastern side. After coming over the Chabutra of the Chaupal the accused stated "Nainsukh, beware, now I will teach you the lesson for giving the evidence". While flashing the torches on the deceased Deena fired at Nainsukh aiming towards his head. The shot hit Nainsukh on the head. The other shot fired by Deena injured Chandra Pal and the third shot hit the prosecution witness Hari Singh. Hari Singh received a n injury on his right shoulder.The plea that was made by the defence on the evidence of P.W. 1 was that it cannot be safely relied on.It was submitted that the other injured witness Chandra Pal who was examined as a court witness did not fully support the evidence of the prosecution.We have gone through the testimony of P.W. 1 and witness Chandra Pal and we do not see any material contradiction. The enmity between Deena on the one side and the deceased and his family on the other side is not seriously contested. The deceased Nainsukh gave evidence against Deena in the murder case in which Ram Chandra was killed. When Deena was released on bail he wanted to teach a lesson to the witness Nainsukh who had appeared against him. This resulted in Deena shooting the deceased to death. The motive as alleged by the prosecution stands amplyis seen that there was a bundle of straw and a cot at the scene. The strings of the cot and as well as the straws were stained with blood. The Serologist had found human blood on the straws. We do not find any difficultly in accepting the finding of the High Court that the occurrence took place at the site alleged by theof the motive, it is highly probable that Nainsukh, Hari Singh an d the family slept with the light burning on the platform which was the scene of offence. Three shots were fired and there could have been no difficulty in P.W. 1 identifying the appellant Deena. It is common ground that the witness knew Deena very well. The lantern that was burning was produced by P.W. 2, Nihal Singh, as soon as the Investigating officer came to the scene of occurrence. The witness was sleeping to the south of the deceased person at a distance of few feet and w e do not think there could have been any difficulty in identifying the assailant. The High Court has fully considered the question as to whether P.W. 1 would have identified the assailant and has come to the conclusion that the prosecution has established that the lantern was burning and the assailants used torches which enabled the recognition of the accused at the time of the incident. P.W. 1 Hari Singh is a natural witness and his presence cannot be disputed as he had sustained a g un shot injury. He had no particular motive for falsely implicating Deena the accused.The court witness Chandra Pal did not fully support the prosecution except that the incident took place at the chaupal as alleged by the prosecution. But we do not feel any justification for rejecting the testimony of P.W. 1 because of the contradiction in the testimony of C.W. 1 Chandra Pal. We are inclined to agree with the High Court that Chandra Pal was won over by the defence. We also agree with the High Court and find that the appellant Deena was guilty of an offence under section 302 I.P.C. in causing the death of Nainsukh.8. The High Court confirmed the extreme penalty of law imposed by the Sessions Court. The Sessions Court in imposing the death sentence found that the appellant is a desperate character and that while he was on bail in Rare, Chandra murder case he committed the murder of Nainsukh one of the prosecution witnesses in Ram Chandra murder case. As the offence was committed by a person under a sentence of imprisonment for life for an offence under section 302 I.P.C. the Sessions Court inflicted the extreme penalty. As a charge under section 303 I.P.C. was not framed and as the parties are not able to tell us the result of the appeal filed by Deena in Ram Chandras case, we refrain from invoking the provisions of section 303 I.P.C. Regarding the sentence after giving our serious and anxious consideration, we find ourselves unable to come to any different conclusion from that arrived at by the trial Judge and the High Court. The offence was committed after deliberate planning in the night when the victim was sleeping. It was for the purpose of teaching a lesson to a witness who gave evidence against the accused.
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Kanti Lal Vs. State Of Rajasthan | and Govind Ram and that of the deceased Bheema Ram were found written on the wall of the Rani Mahal of the Jalore Fort. Various photograph of this graffiti were taken and the signatures of the accused were also obtained for comparison. The Investigating Officer also conducted an identification parade in the presence of PW-47, the Asstt. Collector-cum-Magistrate First Class, Jalore, and the witnesses who participated in the identification parade, identified both the accused as the persons with whom the deceased Bheema Ram had been found moving. The bush-shirt, the khaki bag, the receipt-books and other articles allegedly used by the deceased were identified by the prosecution witnesses as the articles belonging to the deceased and he finally filed the charge sheet.4. The counsel for the appellants strongly urged before us that the circumstantial evidence produced by the prosecution was not sufficient to prove the guilt of the appellant. It was contended that the investigation officer cooked up evidence to cause serious prejudice to the accused. It was submitted that the graffiti allegedly written by the accused and the deceased was not noticed by the investigating officer at the time he visited the place of incident on 29th July, 1985, but he could find it only on 9th August, 1985 and, therefore, the same must have been done at the instance of the prosecution. The counsel for the appellants also contended that various recoveries allegedly effected by the investigating officer were not satisfactorily proved and the connection of the present appellant to any of the articles recovered is not proved. The counsel for the appellants drew our attention to the various aspects of the case. 5. At the outset, we must observe that though this is a case of circumstantial evidence, the investigating officer conducted a very detailed investigation and to the best of his ability, he collected all material relevant to prove the guilt of the accused. The appellant Kanti Lal was arrested by him at Bombay. As against him, the evidence of recovery of various articles allegedly belonging to the deceased, is a strong circumstance to prove his guilt. A bush-shirt and a ball pen belonging to the deceased were recovered at the instance of the appellant, Kanti Lal. PW-10 Ramesh Kumar identified these articles as belonging to the deceased. A receipt-book and a list of persons from whom the deceased had collected money; pieces of a torn bank draft; and a money bag were also recovered at the instance of the appellant, Kanti Lal. All these articles were identified as the articles belonging to the deceased. Appellant, Kanti Lal had no satisfactory explanation how he came to be in possession of these articles. The fact of possession of these articles with the appellant only leads to the most probable inference that he was responsible for the death of the deceased, especially when the appellant had no case that he had come to possess these articles for any other reason. 6. Another strong circumstance which was proved against the appellants were that they were found in the company of the deceased at various places immediately preceding the day of death of the deceased. PW-9 Jamuna deposed that she had gone to village Doodsi to purchase some medicines and while she was returning she saw deceased Bheema Ram with appellant Govind Ram and they told her that they were going to Jalore. PW-12 Kheta Ram was known to deceased Bheema Ram and he deposed that he had met Bheema Ram and appellants, Kanti Lal and Govind Ram at Subhash market and they told him that they were going to Jalore Fort and that later he came to know after three-four days that the dead body of Bheema Ram was found at Jalore Fort. PW-16 Tek Chand deposed that on 27th July, 1985 deceased Bheema Ram had come to his shop and received Rs. 2,000/-, for which he issued Exh. P-30 receipt. He also deposed that on the next day, he saw Bheema Ram standing in front of the shop of appellant Govind Ram. PW-18 Chhoga Ram is a jeep driver and he deposed that at about 8 PM, appellant, Kanti Lal and his co-accused Govind Ram requested him to take them from Jalore to village Doodsi and that he took them in a vehicle and left them at village Doodsi and received Rs. 80/-. PW-46 Virendra Kumar is a tea shop owner at Jalore bus stand. He deposed that the appellants Kanti Lal and Govind Ram came to his restaurant on 28th July, 1985 and had consumed Masala Dosa and Mosami Juice. It is also pertinent to note that this witness identified the appellants in the identification parade, later held in the presence of the Magistrate. 7. The evidence adduced by the prosecution would show that the appellants were moving with the deceased Bheema Ram during the relevant period. Another circumstance, which would prove the presence of the appellants at Jalore Fort during the crucial time is the graffiti found on the wall of the Rani Mahal of Jalore Fort. PW-29 took photographs of these writings and the same were compared with the specimen signatures of the appellants (Exh. P-74 & P-75). The expert opinion Q-1 and Q-3 was to the effect that the specimen signatures of the appellants were similar to the graffiti allegedly written by the appellants.8. We are of the view that the prosecution successfully proved the case against the appellants and the recovery of various articles used by the deceased, from the possession of the appellants, Kanti Lal and Govind Ram; the evidence of the witnesses who found the appellants in the company of the deceased during the relevant period; and the other circumstantial evidence clearly established the guilt of the accused and the Sessions Court rightly found the appellants guilty of the offences charged against them.9. The High Court was fully justified in confirming the conviction and sentence of the appellants and we see no merit in these appeals to take a different view. | 0[ds]The fact of possession of these articles with the appellant only leads to the most probable inference that he was responsible for the death of the deceased, especially when the appellant had no case that he had come to possess these articles for any other reason.The evidence adduced by the prosecution would show that the appellants were moving with the deceased Bheema Ram during the relevant period. Another circumstance, which would prove the presence of the appellants at Jalore Fort during the crucial time is the graffiti found on the wall of the Rani Mahal of Jalore Fort.took photographs of these writings and the same were compared with the specimen signatures of the appellants (Exh.). The expert opinionwas to the effect that the specimen signatures of the appellants were similar to the graffiti allegedly written by the appellants.8. We are of the view that the prosecution successfully proved the case against the appellants and the recovery of various articles used by the deceased, from the possession of the appellants, Kanti Lal and Govind Ram; the evidence of the witnesses who found the appellants in the company of the deceased during the relevant period; and the other circumstantial evidence clearly established the guilt of the accused and the Sessions Court rightly found the appellants guilty of the offences charged against them.9. The High Court was fully justified in confirming the conviction and sentence of the appellants and we see no merit in these appeals to take a different view | 0 | 1,732 | 264 | ### 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:
and Govind Ram and that of the deceased Bheema Ram were found written on the wall of the Rani Mahal of the Jalore Fort. Various photograph of this graffiti were taken and the signatures of the accused were also obtained for comparison. The Investigating Officer also conducted an identification parade in the presence of PW-47, the Asstt. Collector-cum-Magistrate First Class, Jalore, and the witnesses who participated in the identification parade, identified both the accused as the persons with whom the deceased Bheema Ram had been found moving. The bush-shirt, the khaki bag, the receipt-books and other articles allegedly used by the deceased were identified by the prosecution witnesses as the articles belonging to the deceased and he finally filed the charge sheet.4. The counsel for the appellants strongly urged before us that the circumstantial evidence produced by the prosecution was not sufficient to prove the guilt of the appellant. It was contended that the investigation officer cooked up evidence to cause serious prejudice to the accused. It was submitted that the graffiti allegedly written by the accused and the deceased was not noticed by the investigating officer at the time he visited the place of incident on 29th July, 1985, but he could find it only on 9th August, 1985 and, therefore, the same must have been done at the instance of the prosecution. The counsel for the appellants also contended that various recoveries allegedly effected by the investigating officer were not satisfactorily proved and the connection of the present appellant to any of the articles recovered is not proved. The counsel for the appellants drew our attention to the various aspects of the case. 5. At the outset, we must observe that though this is a case of circumstantial evidence, the investigating officer conducted a very detailed investigation and to the best of his ability, he collected all material relevant to prove the guilt of the accused. The appellant Kanti Lal was arrested by him at Bombay. As against him, the evidence of recovery of various articles allegedly belonging to the deceased, is a strong circumstance to prove his guilt. A bush-shirt and a ball pen belonging to the deceased were recovered at the instance of the appellant, Kanti Lal. PW-10 Ramesh Kumar identified these articles as belonging to the deceased. A receipt-book and a list of persons from whom the deceased had collected money; pieces of a torn bank draft; and a money bag were also recovered at the instance of the appellant, Kanti Lal. All these articles were identified as the articles belonging to the deceased. Appellant, Kanti Lal had no satisfactory explanation how he came to be in possession of these articles. The fact of possession of these articles with the appellant only leads to the most probable inference that he was responsible for the death of the deceased, especially when the appellant had no case that he had come to possess these articles for any other reason. 6. Another strong circumstance which was proved against the appellants were that they were found in the company of the deceased at various places immediately preceding the day of death of the deceased. PW-9 Jamuna deposed that she had gone to village Doodsi to purchase some medicines and while she was returning she saw deceased Bheema Ram with appellant Govind Ram and they told her that they were going to Jalore. PW-12 Kheta Ram was known to deceased Bheema Ram and he deposed that he had met Bheema Ram and appellants, Kanti Lal and Govind Ram at Subhash market and they told him that they were going to Jalore Fort and that later he came to know after three-four days that the dead body of Bheema Ram was found at Jalore Fort. PW-16 Tek Chand deposed that on 27th July, 1985 deceased Bheema Ram had come to his shop and received Rs. 2,000/-, for which he issued Exh. P-30 receipt. He also deposed that on the next day, he saw Bheema Ram standing in front of the shop of appellant Govind Ram. PW-18 Chhoga Ram is a jeep driver and he deposed that at about 8 PM, appellant, Kanti Lal and his co-accused Govind Ram requested him to take them from Jalore to village Doodsi and that he took them in a vehicle and left them at village Doodsi and received Rs. 80/-. PW-46 Virendra Kumar is a tea shop owner at Jalore bus stand. He deposed that the appellants Kanti Lal and Govind Ram came to his restaurant on 28th July, 1985 and had consumed Masala Dosa and Mosami Juice. It is also pertinent to note that this witness identified the appellants in the identification parade, later held in the presence of the Magistrate. 7. The evidence adduced by the prosecution would show that the appellants were moving with the deceased Bheema Ram during the relevant period. Another circumstance, which would prove the presence of the appellants at Jalore Fort during the crucial time is the graffiti found on the wall of the Rani Mahal of Jalore Fort. PW-29 took photographs of these writings and the same were compared with the specimen signatures of the appellants (Exh. P-74 & P-75). The expert opinion Q-1 and Q-3 was to the effect that the specimen signatures of the appellants were similar to the graffiti allegedly written by the appellants.8. We are of the view that the prosecution successfully proved the case against the appellants and the recovery of various articles used by the deceased, from the possession of the appellants, Kanti Lal and Govind Ram; the evidence of the witnesses who found the appellants in the company of the deceased during the relevant period; and the other circumstantial evidence clearly established the guilt of the accused and the Sessions Court rightly found the appellants guilty of the offences charged against them.9. The High Court was fully justified in confirming the conviction and sentence of the appellants and we see no merit in these appeals to take a different view.
### Response:
0
### Explanation:
The fact of possession of these articles with the appellant only leads to the most probable inference that he was responsible for the death of the deceased, especially when the appellant had no case that he had come to possess these articles for any other reason.The evidence adduced by the prosecution would show that the appellants were moving with the deceased Bheema Ram during the relevant period. Another circumstance, which would prove the presence of the appellants at Jalore Fort during the crucial time is the graffiti found on the wall of the Rani Mahal of Jalore Fort.took photographs of these writings and the same were compared with the specimen signatures of the appellants (Exh.). The expert opinionwas to the effect that the specimen signatures of the appellants were similar to the graffiti allegedly written by the appellants.8. We are of the view that the prosecution successfully proved the case against the appellants and the recovery of various articles used by the deceased, from the possession of the appellants, Kanti Lal and Govind Ram; the evidence of the witnesses who found the appellants in the company of the deceased during the relevant period; and the other circumstantial evidence clearly established the guilt of the accused and the Sessions Court rightly found the appellants guilty of the offences charged against them.9. The High Court was fully justified in confirming the conviction and sentence of the appellants and we see no merit in these appeals to take a different view
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Kapurchand Shrimal Vs. Tax Recovery Officer, Hyderabad & Ors | and detention.It is true that if properties of the family, movable and immovable, are to be attached proceedings may be started against the Hindu undivided family and the manager represents the family in proceedings before the Tax Recovery Officer. But by the clearest implication of the statute the assessee alone may be deemed to be in default for non-payment of tax, and liability to arrest and detention on failure to pay the tax due is also incurred by the assessee alone.The manager by virtue of his status is competent to represent the Hindu undivided family, but on that account he cannot for the purpose of Section 222 of the Act of 1961 be deemed to be the assessee when the assessment is made against the Hindu undivided family and certificate for recovery is issued against the family.6. Counsel for the Revenue invited our attention to Section 140 (b) and Section 282 (2) of the Income-tax Act, 1961 in support of his contention that when tax is assessed against the Hindu undivided family there is no distinction between the representative status of the manager of the family and his personal status. Section 140 (b) authorises the manager in the case of a Hindu undivided family to sign and verify the return of income, and Section 282 (2) provides for the mode of service of notice or requisition issued under the Act, amongst others, against a Hindu undivided family.But because the manager of a Hindu undivided family is authorised to sign and verify the return of income and a notice under the Act could be served upon him when it is addressed to a Hindu undivided family and such service is treated as service upon the Hindu undivided family for the purpose of the Act, the manager cannot be deemed to be the assessee where the income assessed is of the Hindu undivided family.The expression assessee under Section 2 (7) means a person by whom any tax or any other sum of money is payable under the Act, and includes - (a) every person in respect of whom any proceeding under the Act has been taken for the assessment of his income or of the income of any other person in respect of which he is assessable, or of the loss sustained by him or by such other person, or of the amount of refund due to him or to such other person; (b) every person who is deemed to be an assessee under any provisions of the Act; (c) every, person who is deemed to be an assessee in default under any provisions of the Act. For purposes of Clause (a) the person against whom any proceeding under the Act has been taken is deemed an assessee: but that necessarily postulates that the proceeding should be lawfully taken against the person before he could be deemed to be an assessee for the purpose of Section 222 or Rule 2 and Rule 73.There is no provision in the Act which deems the manager to be the assessee for the purpose of assessment and recovery of tax, when the income of the Hindu undivided family of which he is the manager is assessed to tax. Nor is there any provision enabling the Income-tax Officer or the Tax Recovery Officer to treat the manager of the Hindu undivided family as an assessee in default under the provisions of the Act.Section 160 provides for treating a person as a representative assessee, and Section 161 prescribes the liability of a representative assessee. Section 179 makes a special provision for rendering the Directors of private company in liquidation to be jointly and severally liable for the payment of tax which cannot be recovered from the assets of the private company in liquidation. The Legislature has made no such provision for recovery of tax by report to the personal property of the manager of the Hindu undivided family, or by his arrest and detention for default by the family in paying the tax due.7. Sections 276, 276A, 277 and 278 on which reliance was placed by counsel for the Revenue in support of his argument also do not assist him. These sections occur in a chapter relating to penalties, and they seek to penalise failure to carry out specific provisions mentioned therein.We are unable to hold that the expression "person" in Sections 276, 276A and 277 is used in the sense in which it is defined in Section 2 (31) of the Act. For each specific act which is deemed to be an offence under those provisions, an individual who without reasonable cause or excuse fails to do the acts prescribed by statuteor acts in a manner contrary to the statute or makes a declaration on oath which he believes to be false or does not believe to be true, is made liable to be punished. Section 278 penalises the abetment or inducing any person to make and deliver an account, statement or declaration relating to any income chargeable to tax which is false and which he either knows to be false or does not believe to be true.In the context in which the expression "person" occurs in Sections 276, 276A, 277 and 278, there can be no doubt that it seeks to penalise only those individuals who fail to carry out the duty cast by the specific provisions of the statute, or are otherwise responsible for the acts done. For the default of the Hindu undivided family, therefore, in payment of tax, the Karta cannot be arrested and detained in prison.8. The High Court, we think took a somewhat technical view in declining to allow the contention raised by the appellant in the first writ petition presented before be High Court that be was not liable to be arrested and imprisoned for non-payment of the tax arrears, since he was not an assessee, and then in treating the judgment of the High Court in the first writ petition operating constructively as res judicata in the second petition. | 1[ds]7. Sections 276, 276A, 277 and 278 on which reliance was placed by counsel for the Revenue in support of his argument also do not assist him. These sections occur in a chapter relating to penalties, and they seek to penalise failure to carry out specific provisions mentioned therein.We are unable to hold that the expression "person" in Sections 276, 276A and 277 is used in the sense in which it is defined in Section 2 (31) of the Act. For each specific act which is deemed to be an offence under those provisions, an individual who without reasonable cause or excuse fails to do the acts prescribed by statuteor acts in a manner contrary to the statute or makes a declaration on oath which he believes to be false or does not believe to be true, is made liable to be punished. Section 278 penalises the abetment or inducing any person to make and deliver an account, statement or declaration relating to any income chargeable to tax which is false and which he either knows to be false or does not believe to be true.In the context in which the expression "person" occurs in Sections 276, 276A, 277 and 278, there can be no doubt that it seeks to penalise only those individuals who fail to carry out the duty cast by the specific provisions of the statute, or are otherwise responsible for the acts done. For the default of the Hindu undivided family, therefore, in payment of tax, the Karta cannot be arrested and detained in prison.8. The High Court, we think took a somewhat technical view in declining to allow the contention raised by the appellant in the first writ petition presented before be High Court that be was not liable to be arrested and imprisoned for non-payment of the tax arrears, since he was not an assessee, and then in treating the judgment of the High Court in the first writ petition operating constructively as res judicata in the second petition. | 1 | 2,697 | 370 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
and detention.It is true that if properties of the family, movable and immovable, are to be attached proceedings may be started against the Hindu undivided family and the manager represents the family in proceedings before the Tax Recovery Officer. But by the clearest implication of the statute the assessee alone may be deemed to be in default for non-payment of tax, and liability to arrest and detention on failure to pay the tax due is also incurred by the assessee alone.The manager by virtue of his status is competent to represent the Hindu undivided family, but on that account he cannot for the purpose of Section 222 of the Act of 1961 be deemed to be the assessee when the assessment is made against the Hindu undivided family and certificate for recovery is issued against the family.6. Counsel for the Revenue invited our attention to Section 140 (b) and Section 282 (2) of the Income-tax Act, 1961 in support of his contention that when tax is assessed against the Hindu undivided family there is no distinction between the representative status of the manager of the family and his personal status. Section 140 (b) authorises the manager in the case of a Hindu undivided family to sign and verify the return of income, and Section 282 (2) provides for the mode of service of notice or requisition issued under the Act, amongst others, against a Hindu undivided family.But because the manager of a Hindu undivided family is authorised to sign and verify the return of income and a notice under the Act could be served upon him when it is addressed to a Hindu undivided family and such service is treated as service upon the Hindu undivided family for the purpose of the Act, the manager cannot be deemed to be the assessee where the income assessed is of the Hindu undivided family.The expression assessee under Section 2 (7) means a person by whom any tax or any other sum of money is payable under the Act, and includes - (a) every person in respect of whom any proceeding under the Act has been taken for the assessment of his income or of the income of any other person in respect of which he is assessable, or of the loss sustained by him or by such other person, or of the amount of refund due to him or to such other person; (b) every person who is deemed to be an assessee under any provisions of the Act; (c) every, person who is deemed to be an assessee in default under any provisions of the Act. For purposes of Clause (a) the person against whom any proceeding under the Act has been taken is deemed an assessee: but that necessarily postulates that the proceeding should be lawfully taken against the person before he could be deemed to be an assessee for the purpose of Section 222 or Rule 2 and Rule 73.There is no provision in the Act which deems the manager to be the assessee for the purpose of assessment and recovery of tax, when the income of the Hindu undivided family of which he is the manager is assessed to tax. Nor is there any provision enabling the Income-tax Officer or the Tax Recovery Officer to treat the manager of the Hindu undivided family as an assessee in default under the provisions of the Act.Section 160 provides for treating a person as a representative assessee, and Section 161 prescribes the liability of a representative assessee. Section 179 makes a special provision for rendering the Directors of private company in liquidation to be jointly and severally liable for the payment of tax which cannot be recovered from the assets of the private company in liquidation. The Legislature has made no such provision for recovery of tax by report to the personal property of the manager of the Hindu undivided family, or by his arrest and detention for default by the family in paying the tax due.7. Sections 276, 276A, 277 and 278 on which reliance was placed by counsel for the Revenue in support of his argument also do not assist him. These sections occur in a chapter relating to penalties, and they seek to penalise failure to carry out specific provisions mentioned therein.We are unable to hold that the expression "person" in Sections 276, 276A and 277 is used in the sense in which it is defined in Section 2 (31) of the Act. For each specific act which is deemed to be an offence under those provisions, an individual who without reasonable cause or excuse fails to do the acts prescribed by statuteor acts in a manner contrary to the statute or makes a declaration on oath which he believes to be false or does not believe to be true, is made liable to be punished. Section 278 penalises the abetment or inducing any person to make and deliver an account, statement or declaration relating to any income chargeable to tax which is false and which he either knows to be false or does not believe to be true.In the context in which the expression "person" occurs in Sections 276, 276A, 277 and 278, there can be no doubt that it seeks to penalise only those individuals who fail to carry out the duty cast by the specific provisions of the statute, or are otherwise responsible for the acts done. For the default of the Hindu undivided family, therefore, in payment of tax, the Karta cannot be arrested and detained in prison.8. The High Court, we think took a somewhat technical view in declining to allow the contention raised by the appellant in the first writ petition presented before be High Court that be was not liable to be arrested and imprisoned for non-payment of the tax arrears, since he was not an assessee, and then in treating the judgment of the High Court in the first writ petition operating constructively as res judicata in the second petition.
### Response:
1
### Explanation:
7. Sections 276, 276A, 277 and 278 on which reliance was placed by counsel for the Revenue in support of his argument also do not assist him. These sections occur in a chapter relating to penalties, and they seek to penalise failure to carry out specific provisions mentioned therein.We are unable to hold that the expression "person" in Sections 276, 276A and 277 is used in the sense in which it is defined in Section 2 (31) of the Act. For each specific act which is deemed to be an offence under those provisions, an individual who without reasonable cause or excuse fails to do the acts prescribed by statuteor acts in a manner contrary to the statute or makes a declaration on oath which he believes to be false or does not believe to be true, is made liable to be punished. Section 278 penalises the abetment or inducing any person to make and deliver an account, statement or declaration relating to any income chargeable to tax which is false and which he either knows to be false or does not believe to be true.In the context in which the expression "person" occurs in Sections 276, 276A, 277 and 278, there can be no doubt that it seeks to penalise only those individuals who fail to carry out the duty cast by the specific provisions of the statute, or are otherwise responsible for the acts done. For the default of the Hindu undivided family, therefore, in payment of tax, the Karta cannot be arrested and detained in prison.8. The High Court, we think took a somewhat technical view in declining to allow the contention raised by the appellant in the first writ petition presented before be High Court that be was not liable to be arrested and imprisoned for non-payment of the tax arrears, since he was not an assessee, and then in treating the judgment of the High Court in the first writ petition operating constructively as res judicata in the second petition.
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Ram Autar Lal Jain Vs. Minister Of Transport & Ors | been considered by the Regional Transport Authority, the heirs or legal representatives of the applicant have the right to step into the shoes of the deceased applicant and prosecute the application filed by him before the Regional Transport Authority. The problem arises because there is no provision in the Motor Vehicles Act, 1939, which provides for succession to an applicants right to prosecute his application for a stage carriage permit before the Transport Authorities.3. It is clear that, although, no person is entitled to a permit as a matter of right, the Motor Vehicles Act has conferred upon a person the right to make an application under Chapter IV of the Motor Vehicles Act for any of the four types of permits dealt with in that chapter. A person has also the right to have his application considered by the appropriate authority in accordance with the provisions of the Act so long as he makes an application within the prescribed time and in the prescribed form. If such an application is made the transport authority cannot legally ignore that application and consider other applications only.The authority could reject the application on merits. Thus, an application made for a permit under Chapter IV of the Motor Vehicles Act gives only the right that the merits of the applicant will be considered vis-a-vis other applicants. These merits depend generally upon the peculiar position, capabilities, and qualifications of an applicant which may be either personal or peculiarly or particularly those of a concern or organisation. It is not necessary that an heir or successor of an applicant will also have the applicants qualifications or capabilities with regard to a transport service for the benefit of the public. Probably it was for this reason that neither the Motor Vehicles Act nor the rules made thereunder provide for the substitution of heirs to prosecute the application of a deceased claimant for a permit.4. In Dhani Devi v. Sant Bihari, (1969) 2 SCR 507 = (AIR 1970 SC 759 ), this Court had to answer the question as to whether on the death of an applicant for a stage carriage permit in respect of his transport vehicles the Regional Transport Authority has power to allow the person succeeding to the possession of the vehicles to prosecute the application filed by the deceased applicant. This Court on that occasion noted that neither Order XXII of the Code of Civil Procedure nor Section 306 of the Indian Succession Act, 1925, have any application in such a case and also that there is no express provision in the Motor Vehicles Act or the rules framed under the Act to deal with this situation. This Court, however, held that if a person in possession of transport vehicles "dies after obtaining the permit, the Regional Transport Authority has power under S. 61 (2) to transfer the permit to the person succeeding to the possession of the vehicles covered by the permit". In the course of the judgment in that case this Court observed there :"We are inclined to think that in the case of death of the applicant before the final disposal of his application for the grant of a permit in respect of his vehicles the Regional Transport Authority has power to substitute the person succeeding to the possession of the vehicles in place of the deceased applicant and to allow the successor to prosecute the application. As the relief sought for in the application is dependent upon and related to the possession of the vehicles the application is capable of being revived at the instance of the person succeeding to the possession of the vehicles".5. The observations set out above, relied upon by the appellant, do not cover a case where the deceased applicant is not in possession of any motor vehicle. The ratio of Dhani Devis case, (1969) 2 SCR 507 = (AIR 1970 SC 759 ) (supra) was simply this: since the right to and possession of the vehicles goes from a deceased holder of a permit or an applicant for its "transfer" to his heirs, the right to continue an application must also necessarily go to them. It does not decide what will happen if there is no motor vehicle to which a deceased applicants heirs or legal representatives can succeed. Moreover, Dhani Devis case, (1969) 2 SCR 507 = (AIR 1970 SC 759 ) (supra) was one which was specifically covered by Section 61 of the Motor Vehicles Act where the permit actually granted and held for a period specified seems to be treated as an adjunct of the possession of the vehicle. It becomes a kind of property right attached to the business of running a vehicle which is actually serving the public on the road. In such a case the right does not remain a mere personal right to apply but is of a transferable character. Therefore, Section 61 of the Act deals with cases in which a "transfer of the permit held can be applied for. If it was the intention of the Legislature to provide for succession to whatever claims an application for a permit has even before a permit is granted to him, it would have similarly provided for the situation in the case before us. As there is no such provision, we cannot legislate and import one into the Act. Indeed, as already pointed out, it is difficult to conceive of succession to claims for the recognition of which personal or other particular qualifications play so large a part.6. It was also contended that Messrs Ram Autar Lal Jain is, in the eye of law, a new entity separate from both Ram Autar Lal Jain, the deceased applicant, as well as his heirs and legal representatives, and that it could not be the successor or legal representative of the deceased in whom any right to continue any proceeding could vest by succession. As this appeal fails on other grounds discussed above, it is not necessary to decide this question. | 0[ds]3. It is clear that, although, no person is entitled to a permit as a matter of right, the Motor Vehicles Act has conferred upon a person the right to make an application under Chapter IV of the Motor Vehicles Act for any of the four types of permits dealt with in that chapter. A person has also the right to have his application considered by the appropriate authority in accordance with the provisions of the Act so long as he makes an application within the prescribed time and in the prescribed form. If such an application is made the transport authority cannot legally ignore that application and consider other applications only.The authority could reject the application on merits. Thus, an application made for a permit under Chapter IV of the Motor Vehicles Act gives only the right that the merits of the applicant will be considered vis-a-vis other applicants. These merits depend generally upon the peculiar position, capabilities, and qualifications of an applicant which may be either personal or peculiarly or particularly those of a concern or organisation. It is not necessary that an heir or successor of an applicant will also have the applicants qualifications or capabilities with regard to a transport service for the benefit of the public. Probably it was for this reason that neither the Motor Vehicles Act nor the rules made thereunder provide for the substitution of heirs to prosecute the application of a deceased claimant for aSection 61 of the Act deals with cases in which a "transfer of the permit held can be applied for. If it was the intention of the Legislature to provide for succession to whatever claims an application for a permit has even before a permit is granted to him, it would have similarly provided for the situation in the case before us. As there is no such provision, we cannot legislate and import one into the Act. Indeed, as already pointed out, it is difficult to conceive of succession to claims for the recognition of which personal or other particular qualifications play so large a part.6. It was also contended that Messrs Ram Autar Lal Jain is, in the eye of law, a new entity separate from both Ram Autar Lal Jain, the deceased applicant, as well as his heirs and legal representatives, and that it could not be the successor or legal representative of the deceased in whom any right to continue any proceeding could vest by succession. As this appeal fails on other grounds discussed above, it is not necessary to decide this question. | 0 | 1,698 | 465 | ### 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:
been considered by the Regional Transport Authority, the heirs or legal representatives of the applicant have the right to step into the shoes of the deceased applicant and prosecute the application filed by him before the Regional Transport Authority. The problem arises because there is no provision in the Motor Vehicles Act, 1939, which provides for succession to an applicants right to prosecute his application for a stage carriage permit before the Transport Authorities.3. It is clear that, although, no person is entitled to a permit as a matter of right, the Motor Vehicles Act has conferred upon a person the right to make an application under Chapter IV of the Motor Vehicles Act for any of the four types of permits dealt with in that chapter. A person has also the right to have his application considered by the appropriate authority in accordance with the provisions of the Act so long as he makes an application within the prescribed time and in the prescribed form. If such an application is made the transport authority cannot legally ignore that application and consider other applications only.The authority could reject the application on merits. Thus, an application made for a permit under Chapter IV of the Motor Vehicles Act gives only the right that the merits of the applicant will be considered vis-a-vis other applicants. These merits depend generally upon the peculiar position, capabilities, and qualifications of an applicant which may be either personal or peculiarly or particularly those of a concern or organisation. It is not necessary that an heir or successor of an applicant will also have the applicants qualifications or capabilities with regard to a transport service for the benefit of the public. Probably it was for this reason that neither the Motor Vehicles Act nor the rules made thereunder provide for the substitution of heirs to prosecute the application of a deceased claimant for a permit.4. In Dhani Devi v. Sant Bihari, (1969) 2 SCR 507 = (AIR 1970 SC 759 ), this Court had to answer the question as to whether on the death of an applicant for a stage carriage permit in respect of his transport vehicles the Regional Transport Authority has power to allow the person succeeding to the possession of the vehicles to prosecute the application filed by the deceased applicant. This Court on that occasion noted that neither Order XXII of the Code of Civil Procedure nor Section 306 of the Indian Succession Act, 1925, have any application in such a case and also that there is no express provision in the Motor Vehicles Act or the rules framed under the Act to deal with this situation. This Court, however, held that if a person in possession of transport vehicles "dies after obtaining the permit, the Regional Transport Authority has power under S. 61 (2) to transfer the permit to the person succeeding to the possession of the vehicles covered by the permit". In the course of the judgment in that case this Court observed there :"We are inclined to think that in the case of death of the applicant before the final disposal of his application for the grant of a permit in respect of his vehicles the Regional Transport Authority has power to substitute the person succeeding to the possession of the vehicles in place of the deceased applicant and to allow the successor to prosecute the application. As the relief sought for in the application is dependent upon and related to the possession of the vehicles the application is capable of being revived at the instance of the person succeeding to the possession of the vehicles".5. The observations set out above, relied upon by the appellant, do not cover a case where the deceased applicant is not in possession of any motor vehicle. The ratio of Dhani Devis case, (1969) 2 SCR 507 = (AIR 1970 SC 759 ) (supra) was simply this: since the right to and possession of the vehicles goes from a deceased holder of a permit or an applicant for its "transfer" to his heirs, the right to continue an application must also necessarily go to them. It does not decide what will happen if there is no motor vehicle to which a deceased applicants heirs or legal representatives can succeed. Moreover, Dhani Devis case, (1969) 2 SCR 507 = (AIR 1970 SC 759 ) (supra) was one which was specifically covered by Section 61 of the Motor Vehicles Act where the permit actually granted and held for a period specified seems to be treated as an adjunct of the possession of the vehicle. It becomes a kind of property right attached to the business of running a vehicle which is actually serving the public on the road. In such a case the right does not remain a mere personal right to apply but is of a transferable character. Therefore, Section 61 of the Act deals with cases in which a "transfer of the permit held can be applied for. If it was the intention of the Legislature to provide for succession to whatever claims an application for a permit has even before a permit is granted to him, it would have similarly provided for the situation in the case before us. As there is no such provision, we cannot legislate and import one into the Act. Indeed, as already pointed out, it is difficult to conceive of succession to claims for the recognition of which personal or other particular qualifications play so large a part.6. It was also contended that Messrs Ram Autar Lal Jain is, in the eye of law, a new entity separate from both Ram Autar Lal Jain, the deceased applicant, as well as his heirs and legal representatives, and that it could not be the successor or legal representative of the deceased in whom any right to continue any proceeding could vest by succession. As this appeal fails on other grounds discussed above, it is not necessary to decide this question.
### Response:
0
### Explanation:
3. It is clear that, although, no person is entitled to a permit as a matter of right, the Motor Vehicles Act has conferred upon a person the right to make an application under Chapter IV of the Motor Vehicles Act for any of the four types of permits dealt with in that chapter. A person has also the right to have his application considered by the appropriate authority in accordance with the provisions of the Act so long as he makes an application within the prescribed time and in the prescribed form. If such an application is made the transport authority cannot legally ignore that application and consider other applications only.The authority could reject the application on merits. Thus, an application made for a permit under Chapter IV of the Motor Vehicles Act gives only the right that the merits of the applicant will be considered vis-a-vis other applicants. These merits depend generally upon the peculiar position, capabilities, and qualifications of an applicant which may be either personal or peculiarly or particularly those of a concern or organisation. It is not necessary that an heir or successor of an applicant will also have the applicants qualifications or capabilities with regard to a transport service for the benefit of the public. Probably it was for this reason that neither the Motor Vehicles Act nor the rules made thereunder provide for the substitution of heirs to prosecute the application of a deceased claimant for aSection 61 of the Act deals with cases in which a "transfer of the permit held can be applied for. If it was the intention of the Legislature to provide for succession to whatever claims an application for a permit has even before a permit is granted to him, it would have similarly provided for the situation in the case before us. As there is no such provision, we cannot legislate and import one into the Act. Indeed, as already pointed out, it is difficult to conceive of succession to claims for the recognition of which personal or other particular qualifications play so large a part.6. It was also contended that Messrs Ram Autar Lal Jain is, in the eye of law, a new entity separate from both Ram Autar Lal Jain, the deceased applicant, as well as his heirs and legal representatives, and that it could not be the successor or legal representative of the deceased in whom any right to continue any proceeding could vest by succession. As this appeal fails on other grounds discussed above, it is not necessary to decide this question.
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Jayarama Reddy & Anr Vs. Revenue Divisional Officer & Land Acquisition Officer,Kurno | no bearing on the present controversy for, as has been stated, the decision of the legal representative of a deceased respondent to be bound by a decree in spite of its abatement does not involve any question of public policy. 12. Mr. Sens reference to Maharana Shri Davlatsinghji Thakore Saheb of Limdi v. Khachar Hamir Mon (ILR 34 Bom 171 : 11 Bom LR 1330 : 4 IC 830); Town Municipal Council, Athani v. Presiding Officer, Labour Court, Hubli ((1969) 1 SCC 873 : (1970) 1 SCR 51 ); Simpson v. Crowle ((1921) 3 KB 243); Chief Justice of Andhra Pradesh v. L. V. A. Dikshitulu ((1979) 2 SCC 34 : AIR 1979 SC 193 ) and P. Dass Muni Reddy v. P. Appa Rao ((1974) 2 SCC 725 : (1975) 2 SCR 32 ), is equally futile because they were cases of inherent lack of jurisdiction in the court concerned or raised the question of the bar of limitation. 13. Mr. Sen has placed reliance on Punjab State v. Sardar Atma Singh (AIR 1963 Punj 113 : 64 Punj LR 939) and State of Rajasthan v. Raghuraj Singh (AIR 1968 Raj 14 : 1967 Raj LW 570), to show that where an application is not made to bring the legal representative of the deceased respondent on the record of a cross-appeal, that appeal will abate, and it will not be permissible for the appellant to claim the benefit of the fact that the legal representative of the deceased respondent had been brought on the record in the cross-appeal filed by him. I have gone through the cases, but they are clearly distinguishable. The respondent in both cases died during the pendency of the first appeal, and an objection as to abatement was taken during the course of the hearing, so that there was no question of abandoning the objection in either of these cases and it was permissible to apply to the court for the usual consequences which follow for non-compliance with the provisions of Order 22, Rules 3 and 4, C.P.C. Those decisions cannot therefore be of any help in a case like this. 14. It would thus follow that as the plea of abatement of the government appeal against respondent Y. Prabhakar Reddy and its dismissal as a whole for that reason, was wilfully abandoned by the present respondents in the High Court, it will not be fair and reasonable to allow them to rake it up in the facts and circumstances of this case merely because the decision of the High Court has gone against them. 15. That leaves for consideration the question whether the finding of fact of the High Court that the present appellants were entitled to compensation at Rs. 4 per square yard suffers from any such error as to require interference by this Court. Mr. Sen has argued that the High Court went wrong in interfering with the finding of the Subordinate Judge and in excluding the sale deeds Exs. A1 and A2 altogether from consideration when they were important and were by themselves sufficient to uphold the finding of the Subordinate Judge that the market value of the land was Rs. 12 per square yard. 16. I find from the impugned judgment that the High Court first took into consideration all those factors which were in favour of the claimants, namely, the fact that the land was situated within the municipal limits of Kurnool town, it was within easy reach of the government hospitals, the railway station, the Medical College and the State Bank etc., it was suitable as a building site etc. The High Court also took due notice of the fact that although Kurnool was not made the capital of Andhra Pradesh, it was a growing town and had an importance of its own. It then examined those facts which persuaded it to reduce the market value. In doing so, it took note of the fact that the land under acquisition had been bought by the claimants themselves for Rs. 26, 000 on October 30, 1961, just eight months before the issue of the notification for its acquisition. That rate worked out to Rs. 2 per square yard. Then the High Court took into consideration the other facts that the claimants did not effect any improvement in the land after its purchase, it was not their case that the previous owner sold it for any compelling reason, the claimants were not even responsible for preparing the lay out plan for the locality (which had been accepted by the municipality even before they had purchased the land) and that they merely obtained the sanction of the Town Planning department to the lay out which had already been sanctioned. The High Court carefully examined the various sale agreements Exs. A3, A5, A7, A10, A12 and A14, and rejected them on the ground that they did not appear to be genuine and had mostly been executed on the same date. That left the two registered sale deeds Exs. A1 and A2 for consideration on which Mr. Sen has placed considerable reliance. The High Court noticed that they were for the sale of very small portions of land, namely, 3 cents and 5 cents, and did not think it proper to make them the basis for determining the value of a far larger piece of land. It cannot therefore be said that the High Court ignored or misread any important piece of evidence in arriving at its finding. As has been stated, the appellants bought the land for Rs. 26, 000, which worked out to Rs. 2 per square yard, and the High Court doubled that rate, and raised it to Rs. 4 per square yard even though the acquisition took place within a matter of the next eight months and the appellants did nothing to improve its value. To say the least, such a finding cannot be said to have been vitiated for any reason whatsoever so as to require reconsideration here. | 0[ds]5. But even if it were assumed that the government appeal deserved to be dismissed as a whole because of its abatement against the deceased respondent, there is no justification for Mr. Sens further argument that the High Courts decree dated February 4, 1969, was a nullity merely because it was passed against a dead person, namely, Y. Prabhakar Reddy. It has to be appreciated that a decree against a dead person is not necessarily a nullity for all purposes. It will be sufficient to say that such a decree has been held to be a nullity because it cannot be executed against his legal representative for the simple reason that he did not have a full opportunity of being heard in respect of it, and the legal representative cannot be condemned unheard. So if a respondent to an appeal dies, and the appeal abates because of the failure to bring him legal representative on the record within the time limited by law, and the appellate Court loses sight of that development or ignores it, it will still be permissible for the court hearing the appeal to bring his legal representative on the record on an application to that effect and to examine any application that may be made for condonation of the delay. It is also permissible, and is in fact the common practice, to remand the case for disposal according to law to the court in which it was pending at the time of the death of the deceased party. The law has therefore provided, and accepted, modes for reopening and hearing the appeal in such cases6. The basic fact remains that a decree against a dead person is treated as a nullity because it cannot be allowed to operate against his legal representative when he was never brought on the record to defend the case. Any other view would not be possible or permissible for it would fasten on him a liability for which he did not have any hearing. So while the law treats such decree as a nullity qua the legal representative of the deceased defendant or respondent, there is nothing to prevent him from deciding that he will not trust decree as a nullity, but will abide by it as it stands, or as it may be modified thereafter on appeal. If a legal representative adopts that alternative or course of action, it cannot possibly be said that his option to be governed by the decree is against the law concept of public police or purpose, or the public morality. It is thus a matter entirely at the discretion of the legal representative of a deceased respondent against whom a decree has been passed after his death to decide whether he will raise the question that the decree has become nullity, at the appropriate time, namely, during the course of the hearing of any appeal that may be filed by the other party, or to abandon that obvious technical objection and fight the appeal on the merits. He may do so either because of his faith in the strength of his case on the merits, or because of incorrect legal advice, or for the reason that he may not like to rely on a mere technical plea, or because in the case of cross-appeals, he may have the impression that bringing the legal representative of the deceased respondent on record in an appeal by a co-appellant will ensure for the benefit of or be sufficient for purposes of the cross-appeal. An abandonment of a technical plea of abatement and the consequential dismissal of the appeal, is therefore a matter at the discretion of the legal representative of the deceased respondent and there is no justification for the argument to the contrary. It is equally futile to argue that an appellate Court is denuded of its jurisdiction to hear an appeal in which one of the respondents has died and the right to sue does not survive against the surviving defendant or defendants alone merely because no application has been made to bring his legal representative on the record when no objection to that effect is raised by anyone7. But, as is equally obvious, it will not be fair to draw an inference as to the abandonment of such a plea of abatement unless there is clear, sufficient and satisfactory evidence to prove that the legal representative of the deceased respondent was aware of it and abandoned it wilfully. The following facts have been well established in this respect in the present caseAs that was not done by the High Court whether the government appeal was pending, there is no justification for the argument that the appeal automatically stood dismissed after the expiry of the period of 90 days from the death of respondent Y. Prabhakar Reddy on April 3, 1964 because of the abatement of the appeal against him10. In all these facts and circumstances, I have no doubt that any plea that may have been available to the legal representatives of the deceased Y. Prabhakar Reddy in the government appeal because of its abatement, was wilfully abandoned by them. Any other view of the matter will be unfair to the present respondents, because if any such objection had been taken in the High Court, they would have made an application for the setting aside of the abatement and condoning the delay, for whatever it was worth. It has to be appreciated that a point of defence which has been wilfully or deliberately abandoned by a party in a civil case, at a crucial stage when it was most relevant or material, cannot be allowed to be taken up later, at the sweet will of the party which had abandoned the point, or as a last resort, or as an afterthought. In fact in a case where a point has been wilfully abandoned by a party, even if, in a given case, such a conclusion is arrived at on the basis of his conduct, it will not be permissible to allow that party to revoke the abandonment if that will be disadvantageous to the other partyThose were therefore different observations which have no bearing on the present controversy for, as has been stated, the decision of the legal representative of a deceased respondent to be bound by a decree in spite of its abatement does not involve any question of public policy12. Mr. Sens reference to Maharana Shri Davlatsinghji Thakore Saheb of Limdi v. Khachar Hamir Mon (ILR 34 Bom 171 : 11 Bom LR 1330 : 4 IC 830); Town Municipal Council, Athani v. Presiding Officer, Labour Court, Hubli ((1969) 1 SCC 873 : (1970) 1 SCR 51 ); Simpsonv. Crowle ((1921) 3 KB243); Chief Justice of Andhra Pradesh v. L. V. A. Dikshitulu ((1979) 2 SCC 34 : AIR 1979 SC 193 ) and P. Dass Muni Reddy v. P. Appa Rao ((1974) 2 SCC 725 : (1975) 2 SCR 32 ),is equally futile because they were cases of inherent lack of jurisdiction in the court concerned or raised the question of the bar of limitation. I have gone through the cases, but they are clearly distinguishable16. I find from the impugned judgment that the High Court first took into consideration all those factors which were in favour of the claimants, namely, the fact that the land was situated within the municipal limits of Kurnool town, it was within easy reach of the government hospitals, the railway station, the Medical College and the State Bank etc., it was suitable as a building site etc. The High Court also took due notice of the fact that although Kurnool was not made the capital of Andhra Pradesh, it was a growing town and had an importance of its own. It then examined those facts which persuaded it to reduce the market value. In doing so, it took note of the fact that the land under acquisition had been bought by the claimants themselves for Rs. 26, 000 on October 30, 1961, just eight months before the issue of the notification for its acquisition. That rate worked out to Rs. 2 per square yard. Then the High Court took into consideration the other facts that the claimants did not effect any improvement in the land after its purchase, it was not their case that the previous owner sold it for any compelling reason, the claimants were not even responsible for preparing the lay out plan for the locality (which had been accepted by the municipality even before they had purchased the land) and that they merely obtained the sanction of the Town Planning department to the lay out which had already been sanctioned. The High Court carefully examined the various sale agreements Exs. A3, A5, A7, A10, A12 and A14, and rejected them on the ground that they did not appear to be genuine and had mostly been executed on the same date. That left the two registered sale deeds Exs. A1 and A2 for consideration on which Mr. Sen has placed considerable reliance. The High Court noticed that they were for the sale of very small portions of land, namely, 3 cents and 5 cents, and did not think it proper to make them the basis for determining the value of a far larger piece of land. It cannot therefore be said that the High Court ignored or misread any important piece of evidence in arriving at its finding. As has been stated, the appellants bought the land for Rs. 26, 000, which worked out to Rs. 2 per square yard, and the High Court doubled that rate, and raised it to Rs. 4 per square yard even though the acquisition took place within a matter of the next eight months and the appellants did nothing to improve its value. To say the least, such a finding cannot be said to have been vitiated for any reason whatsoever so as to require reconsideration here. | 0 | 4,580 | 1,819 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
### Input:
no bearing on the present controversy for, as has been stated, the decision of the legal representative of a deceased respondent to be bound by a decree in spite of its abatement does not involve any question of public policy. 12. Mr. Sens reference to Maharana Shri Davlatsinghji Thakore Saheb of Limdi v. Khachar Hamir Mon (ILR 34 Bom 171 : 11 Bom LR 1330 : 4 IC 830); Town Municipal Council, Athani v. Presiding Officer, Labour Court, Hubli ((1969) 1 SCC 873 : (1970) 1 SCR 51 ); Simpson v. Crowle ((1921) 3 KB 243); Chief Justice of Andhra Pradesh v. L. V. A. Dikshitulu ((1979) 2 SCC 34 : AIR 1979 SC 193 ) and P. Dass Muni Reddy v. P. Appa Rao ((1974) 2 SCC 725 : (1975) 2 SCR 32 ), is equally futile because they were cases of inherent lack of jurisdiction in the court concerned or raised the question of the bar of limitation. 13. Mr. Sen has placed reliance on Punjab State v. Sardar Atma Singh (AIR 1963 Punj 113 : 64 Punj LR 939) and State of Rajasthan v. Raghuraj Singh (AIR 1968 Raj 14 : 1967 Raj LW 570), to show that where an application is not made to bring the legal representative of the deceased respondent on the record of a cross-appeal, that appeal will abate, and it will not be permissible for the appellant to claim the benefit of the fact that the legal representative of the deceased respondent had been brought on the record in the cross-appeal filed by him. I have gone through the cases, but they are clearly distinguishable. The respondent in both cases died during the pendency of the first appeal, and an objection as to abatement was taken during the course of the hearing, so that there was no question of abandoning the objection in either of these cases and it was permissible to apply to the court for the usual consequences which follow for non-compliance with the provisions of Order 22, Rules 3 and 4, C.P.C. Those decisions cannot therefore be of any help in a case like this. 14. It would thus follow that as the plea of abatement of the government appeal against respondent Y. Prabhakar Reddy and its dismissal as a whole for that reason, was wilfully abandoned by the present respondents in the High Court, it will not be fair and reasonable to allow them to rake it up in the facts and circumstances of this case merely because the decision of the High Court has gone against them. 15. That leaves for consideration the question whether the finding of fact of the High Court that the present appellants were entitled to compensation at Rs. 4 per square yard suffers from any such error as to require interference by this Court. Mr. Sen has argued that the High Court went wrong in interfering with the finding of the Subordinate Judge and in excluding the sale deeds Exs. A1 and A2 altogether from consideration when they were important and were by themselves sufficient to uphold the finding of the Subordinate Judge that the market value of the land was Rs. 12 per square yard. 16. I find from the impugned judgment that the High Court first took into consideration all those factors which were in favour of the claimants, namely, the fact that the land was situated within the municipal limits of Kurnool town, it was within easy reach of the government hospitals, the railway station, the Medical College and the State Bank etc., it was suitable as a building site etc. The High Court also took due notice of the fact that although Kurnool was not made the capital of Andhra Pradesh, it was a growing town and had an importance of its own. It then examined those facts which persuaded it to reduce the market value. In doing so, it took note of the fact that the land under acquisition had been bought by the claimants themselves for Rs. 26, 000 on October 30, 1961, just eight months before the issue of the notification for its acquisition. That rate worked out to Rs. 2 per square yard. Then the High Court took into consideration the other facts that the claimants did not effect any improvement in the land after its purchase, it was not their case that the previous owner sold it for any compelling reason, the claimants were not even responsible for preparing the lay out plan for the locality (which had been accepted by the municipality even before they had purchased the land) and that they merely obtained the sanction of the Town Planning department to the lay out which had already been sanctioned. The High Court carefully examined the various sale agreements Exs. A3, A5, A7, A10, A12 and A14, and rejected them on the ground that they did not appear to be genuine and had mostly been executed on the same date. That left the two registered sale deeds Exs. A1 and A2 for consideration on which Mr. Sen has placed considerable reliance. The High Court noticed that they were for the sale of very small portions of land, namely, 3 cents and 5 cents, and did not think it proper to make them the basis for determining the value of a far larger piece of land. It cannot therefore be said that the High Court ignored or misread any important piece of evidence in arriving at its finding. As has been stated, the appellants bought the land for Rs. 26, 000, which worked out to Rs. 2 per square yard, and the High Court doubled that rate, and raised it to Rs. 4 per square yard even though the acquisition took place within a matter of the next eight months and the appellants did nothing to improve its value. To say the least, such a finding cannot be said to have been vitiated for any reason whatsoever so as to require reconsideration here.
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merely because no application has been made to bring his legal representative on the record when no objection to that effect is raised by anyone7. But, as is equally obvious, it will not be fair to draw an inference as to the abandonment of such a plea of abatement unless there is clear, sufficient and satisfactory evidence to prove that the legal representative of the deceased respondent was aware of it and abandoned it wilfully. The following facts have been well established in this respect in the present caseAs that was not done by the High Court whether the government appeal was pending, there is no justification for the argument that the appeal automatically stood dismissed after the expiry of the period of 90 days from the death of respondent Y. Prabhakar Reddy on April 3, 1964 because of the abatement of the appeal against him10. In all these facts and circumstances, I have no doubt that any plea that may have been available to the legal representatives of the deceased Y. Prabhakar Reddy in the government appeal because of its abatement, was wilfully abandoned by them. Any other view of the matter will be unfair to the present respondents, because if any such objection had been taken in the High Court, they would have made an application for the setting aside of the abatement and condoning the delay, for whatever it was worth. It has to be appreciated that a point of defence which has been wilfully or deliberately abandoned by a party in a civil case, at a crucial stage when it was most relevant or material, cannot be allowed to be taken up later, at the sweet will of the party which had abandoned the point, or as a last resort, or as an afterthought. In fact in a case where a point has been wilfully abandoned by a party, even if, in a given case, such a conclusion is arrived at on the basis of his conduct, it will not be permissible to allow that party to revoke the abandonment if that will be disadvantageous to the other partyThose were therefore different observations which have no bearing on the present controversy for, as has been stated, the decision of the legal representative of a deceased respondent to be bound by a decree in spite of its abatement does not involve any question of public policy12. Mr. Sens reference to Maharana Shri Davlatsinghji Thakore Saheb of Limdi v. Khachar Hamir Mon (ILR 34 Bom 171 : 11 Bom LR 1330 : 4 IC 830); Town Municipal Council, Athani v. Presiding Officer, Labour Court, Hubli ((1969) 1 SCC 873 : (1970) 1 SCR 51 ); Simpsonv. Crowle ((1921) 3 KB243); Chief Justice of Andhra Pradesh v. L. V. A. Dikshitulu ((1979) 2 SCC 34 : AIR 1979 SC 193 ) and P. Dass Muni Reddy v. P. Appa Rao ((1974) 2 SCC 725 : (1975) 2 SCR 32 ),is equally futile because they were cases of inherent lack of jurisdiction in the court concerned or raised the question of the bar of limitation. I have gone through the cases, but they are clearly distinguishable16. I find from the impugned judgment that the High Court first took into consideration all those factors which were in favour of the claimants, namely, the fact that the land was situated within the municipal limits of Kurnool town, it was within easy reach of the government hospitals, the railway station, the Medical College and the State Bank etc., it was suitable as a building site etc. The High Court also took due notice of the fact that although Kurnool was not made the capital of Andhra Pradesh, it was a growing town and had an importance of its own. It then examined those facts which persuaded it to reduce the market value. In doing so, it took note of the fact that the land under acquisition had been bought by the claimants themselves for Rs. 26, 000 on October 30, 1961, just eight months before the issue of the notification for its acquisition. That rate worked out to Rs. 2 per square yard. Then the High Court took into consideration the other facts that the claimants did not effect any improvement in the land after its purchase, it was not their case that the previous owner sold it for any compelling reason, the claimants were not even responsible for preparing the lay out plan for the locality (which had been accepted by the municipality even before they had purchased the land) and that they merely obtained the sanction of the Town Planning department to the lay out which had already been sanctioned. The High Court carefully examined the various sale agreements Exs. A3, A5, A7, A10, A12 and A14, and rejected them on the ground that they did not appear to be genuine and had mostly been executed on the same date. That left the two registered sale deeds Exs. A1 and A2 for consideration on which Mr. Sen has placed considerable reliance. The High Court noticed that they were for the sale of very small portions of land, namely, 3 cents and 5 cents, and did not think it proper to make them the basis for determining the value of a far larger piece of land. It cannot therefore be said that the High Court ignored or misread any important piece of evidence in arriving at its finding. As has been stated, the appellants bought the land for Rs. 26, 000, which worked out to Rs. 2 per square yard, and the High Court doubled that rate, and raised it to Rs. 4 per square yard even though the acquisition took place within a matter of the next eight months and the appellants did nothing to improve its value. To say the least, such a finding cannot be said to have been vitiated for any reason whatsoever so as to require reconsideration here.
|
Electronics Corporation Of India Ltd Vs. Secretary,Revenue Deptt.Govt.Of A.P.&Ors | liable to pay non-agricultural assessment thereon.17. A clear distinction must be drawn between a company and its shareholder, even though that shareholder may be only one and that the Central or a State Government. In the eye of the law, a company registered under the Companies Act is a distinct legal entity other than the legal entity or entities that hold its shares. 18. In Western Coalfields Limited v. Special Area Development Authority, Korba & anr., 1982(1) SCC 125, this Court reviewed earlier judgments on the point. It held that even though the entire share capital of the appellant before it had been subscribed by the Government of India, it could not be predicated that the appellant itself was owned by the Government of India. Companies, it was said, which are incorporated under the Companies Act, have a corporate personality of their own, distinct from that of the Government of India. The lands and the buildings in question in that matter were vested in an owned by the appellant. The Government of India only owned the share capital. Â?3>Â?3 Å 19. In Rustom Cavasjee Cooper v. Union of India, 1970(1) SCC 248, it was held, "A company registered under the Companies Act is a legal person, separate and distinct from its individual members. Property of the company is not the property of the shareholders. A shareholder has merely an interest in the company arising under its Articles of Association, measured by a sum of money for the purpose of liability, and by a share in the distributed profit." 20. In Heavy Engineering Mazdoor Union v. State of Bihar, 1969(1) SCC 765, this Court held that an incorporated company has a separate existence and the law recognises it as a juristic person, separate and distinct from its members. 21. We are, in the premises, left in do doubt that the State Government was entitled to levy non-agricultural assessment upon the said land and recover it from the appellant company. 22. Learned counsel then submitted that, in any event, the recovery of non agricultural assessment in respect of the said land could not have been effected from the appellant company by reason of the application of the principle of promissory estoppel. In this behalf he referred to a letter dated 7th February, 1967 addressed by the Under Secretary to the Government of India to the Secretary of the Government of Andhra Pradesh, Industries Department, in regard to the "transfer of land to the Department of Atomic Energy for the location of the Electronics Plant and other plants." The letter stated that it had been agreed by the State Government that this land would be exempt from the levy of tax under the Act "irrespective of whether the plants are managed departmentally or through a Public Section Undertaking". The letter requested that "notifications exempting the lands already handed over to the Department of Atomic Energy or to be handed over in future from levy of tax under Andhra Pradesh Act 14 of 1963, while vesting in the Department of Atomic Energy or in public sector projects would also require to be issued." The issuance of the same was, therefore, requested. In reply, the Deputy Secretary of the Government of Andhra Pradesh, Industries Department, stated on 17th October, 1967 that "no separate notification is required exempting the land given to the Atomic Energy Department for establishment of Atomic Energy Complex at Hyderabad from payment of non-agricultural assessment under the A.P. Non-Agricultural Assessment Act so long as the units are run by the Goverment of India in Public Sector." It was contended by learned counsel that the appellant company had acted upon this promise. Accordingly, the State Government was bound by its promise and was estopped from going back upon it. 23. There are two short answers to this contention. In the first place, there can be no estoppel against a statute. In the second place, the letter dated 17th October, 1967 needs to be carefully read. It says that no notification was required for exempting the land from payment of non-agricultural assessment "so long as the units are run by the Government of India in Public Sector". The appellant company is a separate and distinct legal entity that runs its own industry. The letter dated 17th October, 1967 cannot be read as promising exemption to companies, though their shares be held wholly by the Union of India. 24. Mr. Dholakia, learned counsel for M/s. Parel Investment and Trading Co. Limited (appellant in Civil Appeal Nos. 3937-38 of 1990), adopted the submissions aforementioned. He submitted that Article 285 was intended to protect public revenues; the shares of the appellant companies being fully owned by the Central Government, their funds were public revenues. It was, therefore, necessary to read down the provisions of Section 2(j) and Section 12 of the Act to exclude therefrom all but private owners and lesses of land. The question of reading down comes in if it is found that these provisions are ultra vires as the they stand. We have held that these provisions are not ultra vires because Article 285 does not apply when the property this to be taxed is not of the Union of India but of a distinct and separate legal entity. Each of the appellants being companies registered under Companies Act, they are entitles other than the Union of India. The question of reading down does not, therefore, arise. 25. The discussion so far relates to demands for non-agricultural assessment subsequent to 12th July, 1974, when the amendments made by Act 28 of 1974 in the Act came into effect. The defence to the writ petition filed by the appellant company was, as we have already stated, exclusively based upon the amendments made by Act 28 of 1974 in the Act. These amendments have no retrospective effect. No demand for non-agricultural assessment could, therefore, have been made upon the appellant companies for any period prior to 12th July, 1974. To this extent, the demands are quashed. | 1[ds]14. In our view, neither has Article 285 any application to these appeals nor are we concerned with whether or not the appellants are controlled by or under the authority of the Central Government.It is the case of the appellant company in its writ petition that it is the lessee of the Department of Atomic Energy of the Union of India in respect of the said land. The said land, therefore, is of the ownership of the Central Government and, being leased out to the appellant company for an industrial and commercial purpose, is land to which the Act applies. But virtue of the amended definition of "owner" under Section 2(j) of the Act, the appellant company is the owner of the said land and, by virtue of Section 3, is liable to pay non-agricultural assessment thereon.17. A clear distinction must be drawn between a company and its shareholder, even though that shareholder may be only one and that the Central or a State Government. In the eye of the law, a company registered under the Companies Act is a distinct legal entity other than the legal entity or entities that hold its shares.We are, in the premises, left in do doubt that the State Government was entitled to levy non-agricultural assessment upon the said land and recover it from the appellant company.The discussion so far relates to demands for non-agricultural assessment subsequent to 12th July, 1974, when the amendments made by Act 28 of 1974 in the Act came into effect. The defence to the writ petition filed by the appellant company was, as we have already stated, exclusively based upon the amendments made by Act 28 of 1974 in the Act. These amendments have no retrospective effect. No demand for non-agricultural assessment could, therefore, have been made upon the appellant companies for any period prior to 12th July, 1974. To this extent, the demands are quashed. | 1 | 3,272 | 357 | ### 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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liable to pay non-agricultural assessment thereon.17. A clear distinction must be drawn between a company and its shareholder, even though that shareholder may be only one and that the Central or a State Government. In the eye of the law, a company registered under the Companies Act is a distinct legal entity other than the legal entity or entities that hold its shares. 18. In Western Coalfields Limited v. Special Area Development Authority, Korba & anr., 1982(1) SCC 125, this Court reviewed earlier judgments on the point. It held that even though the entire share capital of the appellant before it had been subscribed by the Government of India, it could not be predicated that the appellant itself was owned by the Government of India. Companies, it was said, which are incorporated under the Companies Act, have a corporate personality of their own, distinct from that of the Government of India. The lands and the buildings in question in that matter were vested in an owned by the appellant. The Government of India only owned the share capital. Â?3>Â?3 Å 19. In Rustom Cavasjee Cooper v. Union of India, 1970(1) SCC 248, it was held, "A company registered under the Companies Act is a legal person, separate and distinct from its individual members. Property of the company is not the property of the shareholders. A shareholder has merely an interest in the company arising under its Articles of Association, measured by a sum of money for the purpose of liability, and by a share in the distributed profit." 20. In Heavy Engineering Mazdoor Union v. State of Bihar, 1969(1) SCC 765, this Court held that an incorporated company has a separate existence and the law recognises it as a juristic person, separate and distinct from its members. 21. We are, in the premises, left in do doubt that the State Government was entitled to levy non-agricultural assessment upon the said land and recover it from the appellant company. 22. Learned counsel then submitted that, in any event, the recovery of non agricultural assessment in respect of the said land could not have been effected from the appellant company by reason of the application of the principle of promissory estoppel. In this behalf he referred to a letter dated 7th February, 1967 addressed by the Under Secretary to the Government of India to the Secretary of the Government of Andhra Pradesh, Industries Department, in regard to the "transfer of land to the Department of Atomic Energy for the location of the Electronics Plant and other plants." The letter stated that it had been agreed by the State Government that this land would be exempt from the levy of tax under the Act "irrespective of whether the plants are managed departmentally or through a Public Section Undertaking". The letter requested that "notifications exempting the lands already handed over to the Department of Atomic Energy or to be handed over in future from levy of tax under Andhra Pradesh Act 14 of 1963, while vesting in the Department of Atomic Energy or in public sector projects would also require to be issued." The issuance of the same was, therefore, requested. In reply, the Deputy Secretary of the Government of Andhra Pradesh, Industries Department, stated on 17th October, 1967 that "no separate notification is required exempting the land given to the Atomic Energy Department for establishment of Atomic Energy Complex at Hyderabad from payment of non-agricultural assessment under the A.P. Non-Agricultural Assessment Act so long as the units are run by the Goverment of India in Public Sector." It was contended by learned counsel that the appellant company had acted upon this promise. Accordingly, the State Government was bound by its promise and was estopped from going back upon it. 23. There are two short answers to this contention. In the first place, there can be no estoppel against a statute. In the second place, the letter dated 17th October, 1967 needs to be carefully read. It says that no notification was required for exempting the land from payment of non-agricultural assessment "so long as the units are run by the Government of India in Public Sector". The appellant company is a separate and distinct legal entity that runs its own industry. The letter dated 17th October, 1967 cannot be read as promising exemption to companies, though their shares be held wholly by the Union of India. 24. Mr. Dholakia, learned counsel for M/s. Parel Investment and Trading Co. Limited (appellant in Civil Appeal Nos. 3937-38 of 1990), adopted the submissions aforementioned. He submitted that Article 285 was intended to protect public revenues; the shares of the appellant companies being fully owned by the Central Government, their funds were public revenues. It was, therefore, necessary to read down the provisions of Section 2(j) and Section 12 of the Act to exclude therefrom all but private owners and lesses of land. The question of reading down comes in if it is found that these provisions are ultra vires as the they stand. We have held that these provisions are not ultra vires because Article 285 does not apply when the property this to be taxed is not of the Union of India but of a distinct and separate legal entity. Each of the appellants being companies registered under Companies Act, they are entitles other than the Union of India. The question of reading down does not, therefore, arise. 25. The discussion so far relates to demands for non-agricultural assessment subsequent to 12th July, 1974, when the amendments made by Act 28 of 1974 in the Act came into effect. The defence to the writ petition filed by the appellant company was, as we have already stated, exclusively based upon the amendments made by Act 28 of 1974 in the Act. These amendments have no retrospective effect. No demand for non-agricultural assessment could, therefore, have been made upon the appellant companies for any period prior to 12th July, 1974. To this extent, the demands are quashed.
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1
### Explanation:
14. In our view, neither has Article 285 any application to these appeals nor are we concerned with whether or not the appellants are controlled by or under the authority of the Central Government.It is the case of the appellant company in its writ petition that it is the lessee of the Department of Atomic Energy of the Union of India in respect of the said land. The said land, therefore, is of the ownership of the Central Government and, being leased out to the appellant company for an industrial and commercial purpose, is land to which the Act applies. But virtue of the amended definition of "owner" under Section 2(j) of the Act, the appellant company is the owner of the said land and, by virtue of Section 3, is liable to pay non-agricultural assessment thereon.17. A clear distinction must be drawn between a company and its shareholder, even though that shareholder may be only one and that the Central or a State Government. In the eye of the law, a company registered under the Companies Act is a distinct legal entity other than the legal entity or entities that hold its shares.We are, in the premises, left in do doubt that the State Government was entitled to levy non-agricultural assessment upon the said land and recover it from the appellant company.The discussion so far relates to demands for non-agricultural assessment subsequent to 12th July, 1974, when the amendments made by Act 28 of 1974 in the Act came into effect. The defence to the writ petition filed by the appellant company was, as we have already stated, exclusively based upon the amendments made by Act 28 of 1974 in the Act. These amendments have no retrospective effect. No demand for non-agricultural assessment could, therefore, have been made upon the appellant companies for any period prior to 12th July, 1974. To this extent, the demands are quashed.
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Raja Shantrunji Vs. Moazmat Azmat Azim Khan & Ors | be resorted to and full effect must be given to the statutory fiction and it should be carded to its logical conclusion". The statutory fiction was introduced to give full effect to Section 4 of the 1952 Act by conferring on the debtors and creditors the right to apply to the Court for calculation and reduction of debt. It was realised that Courts always passed simple decrees. It was noticed that mortgaged property was not and could not be charged under the decree. It was therefore appreciated that unless the words "charged under the decree" were deleted the section could never give any relief to any landlord whose estate had been acquired. 12. This Court in the Bombay case referred to the observations of Lord Asquith in East End Dwellings Co., Ltd. v. Finsbury Borough Council, 1952 AC 109 that."If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it .................. The statute bays that you mud imagine a certain state of affairs: it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs". These observations indicate that the words "charged under the decree" in Section 4 (2) of the 1952 Act were never there with the inevitable consequence that the only statutory requirement is whether the mortgaged property consists of estate which has been acquired under the provisions of the U. P. Zamindari Abolition and Land Reforms Act, 1950. 13. On 27 November, 1962 when the matter was heard by the High Court this amendment did not come into the statute book .That is why the judgment-debtor made an application to bring it to the notice of the High Court that the law was that the words "charged under the decree" were always deemed to have been deleted and this law was effective from the date of coming into force of the 1952 Act on 25 May, 1953. The High Court by a majority opinion was of the view that the judgment-debtor should be given relief. Under Order 47 of the Code of Civil Procedure the principles of review are defined by the Code and the words "any other sufficient reason" in Order 47 of the Code would mean a reason sufficient on grounds analogous to those specified immediately previously in that order. The grounds for review are the discovery of new matters or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or the review is asked for on account of some mistake or error apparent on the face of the record. In Rajah Kotagiri Venkata Subbamma Rao v. Rajah Vellanki Venkatrama Rao, (1900) 27 Ind App 197 (PC), Lord Davey at page 205 of the Report said that"the section does not authorise the review of a decree which was right when it was made on the ground of the happening of some subsequent event. Counsel for the appellant submitted that when the High Court decided the matter, the High Court applied the law as it stood and a subsequent change of law could not be a ground for review. The appellants contention is not acceptable in the present case for two principal reasons; first, it is not a subsequent law. It is the law which all along was there from 1952. The deeming provision is fully effective and operative as from 25 May,1953 when the 1952 Act came into force. The result is that the Court is to apply the legal provision as it always stood. It would, therefore, be error on the face of the record. The error would be that the law that was applied was not the law which is applicable. Secondly, Section 4 of the 1952 Act confers power on the court to apply the law notwithstanding any provision contained in the Code of Civil Procedure. Therefore the application though instituted an application for review was not so. The substance and not the form of the application will be decisive. 14. The appellant (judgment debtor or appellant before High Court?) could not have applied to the Special Judge at Kheri after the decision of the High Court on 27 November, 1962 to apply the law as it stood to the facts and circumstances of the case. The appeal from the order of the Special Judge. Kheri was heard by the High Court and, therefore, the appellant rightly applied to the High Court. It appears from the record of the case that when the matter was heard before the High Court the appellants counsel brought to the notice of the High Court that the Act was going to be amended and awaited assent of the President. In the present case, it is a pre-eminent consideration to be kept in the forefront that the 1952 Act was amended to confer benefit on judgment debtors of the type of the appellant. This is a special legislation conferring rights and reliefs within a specially created jurisdiction. The decree is treated like a decree of the Civil Court. The execution of the decree is not within the province of the provisions of the Code of Civil Procedure. There are special Acts for execution of decrees of the type in the present appeal. The Special Courts have been given power to grant remedies or reliefs to the Judgment debtor as well as the decree-holder. Section 4 of the 1952 Act conferred right to apply to the Court notwithstanding any provision contained in the Code of Civil Procedure. The High Court was therefore, right in making the order as a Court could have made at the date on which the appeal was heard. | 0[ds]8. As a result of the amendment first it is to be a decree to which the 1952 Act applies, secondly, it is to be a decree relating to a secured debt and, thirdly, the mortgaged property is to consist of estate which has been acquired under the provisions of the U. P. Zamindari Abolition and Land Reforms Act, 1950. If these tests are satisfied the decree holder or the judgment debtor has the right to apply to the Court and the court shall on the application proceed in accordance with the provisions of the Act. The Court under this section is the Court of the Special Judge which passed the decree. In the present case it is indisputable that it is a decree relating to secured debt, and the mortgaged property consists of an estate which has been acquired under the provisions of the U. P. Zamindari Abolition and Land Reforms Act, 1950The appellants contention is not acceptable in the present case for two principal reasons; first, it is not a subsequent law. It is the law which all along was there from 1952. The deeming provision is fully effective and operative as from 25 May,1953 when the 1952 Act came into force. The result is that the Court is to apply the legal provision as it always stood. It would, therefore, be error on the face of the record. The error would be that the law that was applied was not the law which is applicable. Secondly, Section 4 of the 1952 Act confers power on the court to apply the law notwithstanding any provision contained in the Code of Civil Procedure. Therefore the application though instituted an application for review was not so. The substance and not the form of the application will be decisive14. The appellant (judgment debtor or appellant before High Court?) could not have applied to the Special Judge at Kheri after the decision of the High Court on 27 November, 1962 to apply the law as it stood to the facts and circumstances of the case. The appeal from the order of the Special Judge. Kheri was heard by the High Court and, therefore, the appellant rightly applied to the High Court. It appears from the record of the case that when the matter was heard before the High Court the appellants counsel brought to the notice of the High Court that the Act was going to be amended and awaited assent of the President. In the present case, it is a pre-eminent consideration to be kept in the forefront that the 1952 Act was amended to confer benefit on judgment debtors of the type of the appellant. This is a special legislation conferring rights and reliefs within a specially created jurisdiction. The decree is treated like a decree of the Civil Court. The execution of the decree is not within the province of the provisions of the Code of Civil Procedure. There are special Acts for execution of decrees of the type in the present appeal. The Special Courts have been given power to grant remedies or reliefs to the Judgment debtor as well as the decree-holder. Section 4 of the 1952 Act conferred right to apply to the Court notwithstanding any provision contained in the Code of Civil Procedure. The High Court was therefore, right in making the order as a Court could have made at the date on which the appeal was heard13. On 27 November, 1962 when the matter was heard by the High Court this amendment did not come into the statute book .That is why ther made an application to bring it to the notice of the High Court that the law was that the words "charged under the decree" were always deemed to have been deleted and this law was effective from the date of coming into force of the 1952 Act on 25 May, 1953. The High Court by a majority opinion was of the view that ther should be given relief. Under Order 47 of the Code of Civil Procedure the principles of review are defined by the Code and the words "any other sufficient reason" in Order 47 of the Code would mean a reason sufficient on grounds analogous to those specified immediately previously in that order. The grounds for review are the discovery of new matters or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or the review is asked for on account of some mistake or error apparent on the face of the record. In Rajah Kotagiri Venkata Subbamma Rao v. Rajah Vellanki Venkatrama Rao, (1900) 27 Ind App 197 (PC), Lord Davey at page 205 of the Report said that"the section does not authorise the review of a decree which was right when it was made on the ground of the happening of some subsequent event. | 0 | 2,565 | 900 | ### 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:
be resorted to and full effect must be given to the statutory fiction and it should be carded to its logical conclusion". The statutory fiction was introduced to give full effect to Section 4 of the 1952 Act by conferring on the debtors and creditors the right to apply to the Court for calculation and reduction of debt. It was realised that Courts always passed simple decrees. It was noticed that mortgaged property was not and could not be charged under the decree. It was therefore appreciated that unless the words "charged under the decree" were deleted the section could never give any relief to any landlord whose estate had been acquired. 12. This Court in the Bombay case referred to the observations of Lord Asquith in East End Dwellings Co., Ltd. v. Finsbury Borough Council, 1952 AC 109 that."If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it .................. The statute bays that you mud imagine a certain state of affairs: it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs". These observations indicate that the words "charged under the decree" in Section 4 (2) of the 1952 Act were never there with the inevitable consequence that the only statutory requirement is whether the mortgaged property consists of estate which has been acquired under the provisions of the U. P. Zamindari Abolition and Land Reforms Act, 1950. 13. On 27 November, 1962 when the matter was heard by the High Court this amendment did not come into the statute book .That is why the judgment-debtor made an application to bring it to the notice of the High Court that the law was that the words "charged under the decree" were always deemed to have been deleted and this law was effective from the date of coming into force of the 1952 Act on 25 May, 1953. The High Court by a majority opinion was of the view that the judgment-debtor should be given relief. Under Order 47 of the Code of Civil Procedure the principles of review are defined by the Code and the words "any other sufficient reason" in Order 47 of the Code would mean a reason sufficient on grounds analogous to those specified immediately previously in that order. The grounds for review are the discovery of new matters or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or the review is asked for on account of some mistake or error apparent on the face of the record. In Rajah Kotagiri Venkata Subbamma Rao v. Rajah Vellanki Venkatrama Rao, (1900) 27 Ind App 197 (PC), Lord Davey at page 205 of the Report said that"the section does not authorise the review of a decree which was right when it was made on the ground of the happening of some subsequent event. Counsel for the appellant submitted that when the High Court decided the matter, the High Court applied the law as it stood and a subsequent change of law could not be a ground for review. The appellants contention is not acceptable in the present case for two principal reasons; first, it is not a subsequent law. It is the law which all along was there from 1952. The deeming provision is fully effective and operative as from 25 May,1953 when the 1952 Act came into force. The result is that the Court is to apply the legal provision as it always stood. It would, therefore, be error on the face of the record. The error would be that the law that was applied was not the law which is applicable. Secondly, Section 4 of the 1952 Act confers power on the court to apply the law notwithstanding any provision contained in the Code of Civil Procedure. Therefore the application though instituted an application for review was not so. The substance and not the form of the application will be decisive. 14. The appellant (judgment debtor or appellant before High Court?) could not have applied to the Special Judge at Kheri after the decision of the High Court on 27 November, 1962 to apply the law as it stood to the facts and circumstances of the case. The appeal from the order of the Special Judge. Kheri was heard by the High Court and, therefore, the appellant rightly applied to the High Court. It appears from the record of the case that when the matter was heard before the High Court the appellants counsel brought to the notice of the High Court that the Act was going to be amended and awaited assent of the President. In the present case, it is a pre-eminent consideration to be kept in the forefront that the 1952 Act was amended to confer benefit on judgment debtors of the type of the appellant. This is a special legislation conferring rights and reliefs within a specially created jurisdiction. The decree is treated like a decree of the Civil Court. The execution of the decree is not within the province of the provisions of the Code of Civil Procedure. There are special Acts for execution of decrees of the type in the present appeal. The Special Courts have been given power to grant remedies or reliefs to the Judgment debtor as well as the decree-holder. Section 4 of the 1952 Act conferred right to apply to the Court notwithstanding any provision contained in the Code of Civil Procedure. The High Court was therefore, right in making the order as a Court could have made at the date on which the appeal was heard.
### Response:
0
### Explanation:
8. As a result of the amendment first it is to be a decree to which the 1952 Act applies, secondly, it is to be a decree relating to a secured debt and, thirdly, the mortgaged property is to consist of estate which has been acquired under the provisions of the U. P. Zamindari Abolition and Land Reforms Act, 1950. If these tests are satisfied the decree holder or the judgment debtor has the right to apply to the Court and the court shall on the application proceed in accordance with the provisions of the Act. The Court under this section is the Court of the Special Judge which passed the decree. In the present case it is indisputable that it is a decree relating to secured debt, and the mortgaged property consists of an estate which has been acquired under the provisions of the U. P. Zamindari Abolition and Land Reforms Act, 1950The appellants contention is not acceptable in the present case for two principal reasons; first, it is not a subsequent law. It is the law which all along was there from 1952. The deeming provision is fully effective and operative as from 25 May,1953 when the 1952 Act came into force. The result is that the Court is to apply the legal provision as it always stood. It would, therefore, be error on the face of the record. The error would be that the law that was applied was not the law which is applicable. Secondly, Section 4 of the 1952 Act confers power on the court to apply the law notwithstanding any provision contained in the Code of Civil Procedure. Therefore the application though instituted an application for review was not so. The substance and not the form of the application will be decisive14. The appellant (judgment debtor or appellant before High Court?) could not have applied to the Special Judge at Kheri after the decision of the High Court on 27 November, 1962 to apply the law as it stood to the facts and circumstances of the case. The appeal from the order of the Special Judge. Kheri was heard by the High Court and, therefore, the appellant rightly applied to the High Court. It appears from the record of the case that when the matter was heard before the High Court the appellants counsel brought to the notice of the High Court that the Act was going to be amended and awaited assent of the President. In the present case, it is a pre-eminent consideration to be kept in the forefront that the 1952 Act was amended to confer benefit on judgment debtors of the type of the appellant. This is a special legislation conferring rights and reliefs within a specially created jurisdiction. The decree is treated like a decree of the Civil Court. The execution of the decree is not within the province of the provisions of the Code of Civil Procedure. There are special Acts for execution of decrees of the type in the present appeal. The Special Courts have been given power to grant remedies or reliefs to the Judgment debtor as well as the decree-holder. Section 4 of the 1952 Act conferred right to apply to the Court notwithstanding any provision contained in the Code of Civil Procedure. The High Court was therefore, right in making the order as a Court could have made at the date on which the appeal was heard13. On 27 November, 1962 when the matter was heard by the High Court this amendment did not come into the statute book .That is why ther made an application to bring it to the notice of the High Court that the law was that the words "charged under the decree" were always deemed to have been deleted and this law was effective from the date of coming into force of the 1952 Act on 25 May, 1953. The High Court by a majority opinion was of the view that ther should be given relief. Under Order 47 of the Code of Civil Procedure the principles of review are defined by the Code and the words "any other sufficient reason" in Order 47 of the Code would mean a reason sufficient on grounds analogous to those specified immediately previously in that order. The grounds for review are the discovery of new matters or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or the review is asked for on account of some mistake or error apparent on the face of the record. In Rajah Kotagiri Venkata Subbamma Rao v. Rajah Vellanki Venkatrama Rao, (1900) 27 Ind App 197 (PC), Lord Davey at page 205 of the Report said that"the section does not authorise the review of a decree which was right when it was made on the ground of the happening of some subsequent event.
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Commnr. Of Central Excise, New Delhi Vs. M/S. India Thermit Corpn. Ltd. | Excise Rules, 1944 (for short the Rules).4. A detailed reply dated 10.11.1999 was filed by the respondents along with copies of the documents in support of their contentions. 5. The Commissioner of Central Excise(Adjudication), authority in original, by his order dated 31.1.2000 confirmed the demand for differential duty of Rs.62,60,022/- on ITCL and imposed penalty of equivalent amount under Rule 9(2), 226 and 173Q of the Rules along with Section 11AC of the Act. Penalty of Rs.1,00,000/- (rupees one lac) was also imposed on Shri Alok Nagory, Managing Director of ITCL under Rule 209A of the Rules. 6. Feeling aggrieved against the order-in-original passed by the Commissioner, ITCL and its Managing Director filed appeals before the Tribunal. 7. Facts in the case of M/s.Asiatic Thermics Ltd. M/s Asiatic Thermics Ltd., respondent No.3 herein, (for short ATL) is engaged in the manufacture of dry moulds and thermit welding equipments and classifying its products under Chapter Heading 8479.00.8. A show cause notice dated 18.1.1999 was issued to ATL for demanding differential duty of Rs.33,80,585 during the period 1993-94 to 11.9.1996 on the ground that ITCL is the "holding company" and ATL is the "subsidiary company". ATL is solely dependent upon ITCL for supply orders and all the goods manufactured by ATL has to be sold to ITCL for further marketing by them. ATL under-valued the goods resulting in non-payment of differential duty of Rs.14,61,392/- by ATL. Apart that, ATL mis-declaration of the nature and composition and suppression of the usage of goods, mis-classified its products and wilfully evaded excise duty to the tune of Rs.19,19,193/- totalling to Rs.33,80,585. Shri R.S.Maheshwari, Director of ATL and Shri Alok Nagory, Managing Director of ITCL were also asked to show cause as to why penal action be not taken against them under Rule 209A of the Rules.9. Detailed reply was given to the show cause notice as also the written submissions at the time of personal hearing. Respondents contested the issue on merits as well as on limitation on the ground that earlier also a show cause notice dated 17.1.1996 was issued involving the period from July 1995 to December, 1995 on the same issue.10. The Commissioner of Central Excise(Adjudication), authority in original, by his order dated 28.2.2000 confirmed the demand for differential duty of Rs.33,80,585/- on ATL and imposed penalty of equivalent amount under Rule 9(2), 226 and 173Q of the Rules along with Section 11AC of the Act. Penalty of Rs.1,00,000/- (rupees one lac) was also imposed on Shri R.S.Maheshwari and Shri Alok Nagory, Managing Director of ITCL under Rule 209A of the Rules.11. Feeling aggrieved against the order-in-original passed by the Commissioner, ATL, Director of ATL and Shri Alok Nagory, Managing Director of ITCL filed appeals before the Tribunal. 12. Tribunal by its common impugned order, being the first appellate authority, considered the matter elaborately and by recording detailed reasons allowed the appeals filed by the respondents both on merits as also on limitation. In the case of ITCL, on the issue of valuation, it held that the highest of the price for bulk sale to railways is comparable price and department cannot take price for the small quantities sold to railways for assessing the products used captively. On the issue of limitation, it held that several show cause notices were issued between 27.11.1995 to 3.6.1996 demanding differential duty on valuation of Thermit Portions cleared for self use covering the period from May, 1995 to November, 1995. 13. Although, these show cause notices are not on record, counsel for the respondents has given the details of the show cause notices which are given below: a) C.No.R-III/ITC/Val/95/1595 dated 27.11.95 May and June95 b) C.No.V(3)6-Demand/96/533 dated 30.1.96 July95c) C.No.V(3)15-Demand/96/1229 dated 4.3.96 -August95d) C.No.V(03)27-Demand/96/1740 dated 29.3.96 Sep.95e) C.No.V(3)39-Demand/96/2112 dated 23.4.96 -Oct.95f) C.No.V(3)49-Demand/96/2716 dated 3.6.96 Nov.95 14. In the aforesaid six show cause notices, orders-in-original were passed between 22.1.1996 and 31.1.1997, which are as under: a) O-I-O No.14/Demand/Ack-1/96 dated 22.1.1996b) O-I-O No.15/Demand/Ack-1/96 dated 26.1.1996c) O-I-O No.06/Demand/Ack-1/97 dated 31.1.1997d) O-I-O No.08/Demand/Ack-1/97 dated 31.1.1997e) O-I-O No.09/Demand/Ack-1/97 dated 31.1.1997f) O-I-O No.10/Demand/Ack-1/97 dated 31.1.1997g) O-I-O No.11/Demand/Ack-1/97 dated 31.1.1997 15. In all these orders, there was a common issue of valuation of thermit portions cleared for self use. These orders have become final and not been challenged by the department. The present show cause notice dated 18.1.1999 has been issued more than three years after the first show cause notice dated 27.11.1995 was issued covering the same issues to twelve clearances of thermit portions and valuation of dry moulds. It was further held by the Tribunal that the impugned order overlaps the earlier adjudication orders in respect of period from 7.3.1995 to 31.3.1995. We agree with the findings recorded by the Tribunal.16. Since, the department has accepted the earlier adjudications on the same issue for part of the period, revenue cannot be permitted to re-agitate the same point for a part of the remaining period. There cannot be second proceedings raising the demand for the same period.17. For the reasons stated above, appeals filed by the revenue are dismissed. Parties shall bear their own costs.18. In the case of ATL, on merits, the Tribunal held that even if ATL and ITCL are related persons, there is no material evidence that the transaction between them was not at arms length. The dry moulds manufactured by ATL were supplied to ITCL in naked condition since no packing material was used. ATL has entered into a contract with railways and the price charged to railways after deducting the cost of packing was the same as charged to ITCL. In other words, the transaction to ITCL was at or about the same price as to the railways. Thus, there is no undervaluation. 19. We agree with the view taken by the Tribunal that even if ATL & ITCL are taken to be related persons [we are not holding so], it has not influenced the price. There is no under-valuation. ATL has been selling the product to ITCL and Indian Railways at or about the same price. | 0[ds]15. In all these orders, there was a common issue of valuation of thermit portions cleared for self use. These orders have become final and not been challenged by the department. The present show cause notice dated 18.1.1999 has been issued more than three years after the first show cause notice dated 27.11.1995 was issued covering the same issues to twelve clearances of thermit portions and valuation of dry moulds. It was further held by the Tribunal that the impugned order overlaps the earlier adjudication orders in respect of period from 7.3.1995 to 31.3.1995. We agree with the findings recorded by the Tribunal.16. Since, the department has accepted the earlier adjudications on the same issue for part of the period, revenue cannot be permitted tothe same point for a part of the remaining period. There cannot be second proceedings raising the demand for the same period.17. For the reasons stated above, appeals filed by the revenue are dismissed. Parties shall bear their own costs.18. In the case of ATL, on merits, the Tribunal held that even if ATL and ITCL are related persons, there is no material evidence that the transaction between them was not at arms length. The dry moulds manufactured by ATL were supplied to ITCL in naked condition since no packing material was used. ATL has entered into a contract with railways and the price charged to railways after deducting the cost of packing was the same as charged to ITCL. In other words, the transaction to ITCL was at or about the same price as to the railways. Thus, there is no undervaluation. | 0 | 1,514 | 297 | ### 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:
Excise Rules, 1944 (for short the Rules).4. A detailed reply dated 10.11.1999 was filed by the respondents along with copies of the documents in support of their contentions. 5. The Commissioner of Central Excise(Adjudication), authority in original, by his order dated 31.1.2000 confirmed the demand for differential duty of Rs.62,60,022/- on ITCL and imposed penalty of equivalent amount under Rule 9(2), 226 and 173Q of the Rules along with Section 11AC of the Act. Penalty of Rs.1,00,000/- (rupees one lac) was also imposed on Shri Alok Nagory, Managing Director of ITCL under Rule 209A of the Rules. 6. Feeling aggrieved against the order-in-original passed by the Commissioner, ITCL and its Managing Director filed appeals before the Tribunal. 7. Facts in the case of M/s.Asiatic Thermics Ltd. M/s Asiatic Thermics Ltd., respondent No.3 herein, (for short ATL) is engaged in the manufacture of dry moulds and thermit welding equipments and classifying its products under Chapter Heading 8479.00.8. A show cause notice dated 18.1.1999 was issued to ATL for demanding differential duty of Rs.33,80,585 during the period 1993-94 to 11.9.1996 on the ground that ITCL is the "holding company" and ATL is the "subsidiary company". ATL is solely dependent upon ITCL for supply orders and all the goods manufactured by ATL has to be sold to ITCL for further marketing by them. ATL under-valued the goods resulting in non-payment of differential duty of Rs.14,61,392/- by ATL. Apart that, ATL mis-declaration of the nature and composition and suppression of the usage of goods, mis-classified its products and wilfully evaded excise duty to the tune of Rs.19,19,193/- totalling to Rs.33,80,585. Shri R.S.Maheshwari, Director of ATL and Shri Alok Nagory, Managing Director of ITCL were also asked to show cause as to why penal action be not taken against them under Rule 209A of the Rules.9. Detailed reply was given to the show cause notice as also the written submissions at the time of personal hearing. Respondents contested the issue on merits as well as on limitation on the ground that earlier also a show cause notice dated 17.1.1996 was issued involving the period from July 1995 to December, 1995 on the same issue.10. The Commissioner of Central Excise(Adjudication), authority in original, by his order dated 28.2.2000 confirmed the demand for differential duty of Rs.33,80,585/- on ATL and imposed penalty of equivalent amount under Rule 9(2), 226 and 173Q of the Rules along with Section 11AC of the Act. Penalty of Rs.1,00,000/- (rupees one lac) was also imposed on Shri R.S.Maheshwari and Shri Alok Nagory, Managing Director of ITCL under Rule 209A of the Rules.11. Feeling aggrieved against the order-in-original passed by the Commissioner, ATL, Director of ATL and Shri Alok Nagory, Managing Director of ITCL filed appeals before the Tribunal. 12. Tribunal by its common impugned order, being the first appellate authority, considered the matter elaborately and by recording detailed reasons allowed the appeals filed by the respondents both on merits as also on limitation. In the case of ITCL, on the issue of valuation, it held that the highest of the price for bulk sale to railways is comparable price and department cannot take price for the small quantities sold to railways for assessing the products used captively. On the issue of limitation, it held that several show cause notices were issued between 27.11.1995 to 3.6.1996 demanding differential duty on valuation of Thermit Portions cleared for self use covering the period from May, 1995 to November, 1995. 13. Although, these show cause notices are not on record, counsel for the respondents has given the details of the show cause notices which are given below: a) C.No.R-III/ITC/Val/95/1595 dated 27.11.95 May and June95 b) C.No.V(3)6-Demand/96/533 dated 30.1.96 July95c) C.No.V(3)15-Demand/96/1229 dated 4.3.96 -August95d) C.No.V(03)27-Demand/96/1740 dated 29.3.96 Sep.95e) C.No.V(3)39-Demand/96/2112 dated 23.4.96 -Oct.95f) C.No.V(3)49-Demand/96/2716 dated 3.6.96 Nov.95 14. In the aforesaid six show cause notices, orders-in-original were passed between 22.1.1996 and 31.1.1997, which are as under: a) O-I-O No.14/Demand/Ack-1/96 dated 22.1.1996b) O-I-O No.15/Demand/Ack-1/96 dated 26.1.1996c) O-I-O No.06/Demand/Ack-1/97 dated 31.1.1997d) O-I-O No.08/Demand/Ack-1/97 dated 31.1.1997e) O-I-O No.09/Demand/Ack-1/97 dated 31.1.1997f) O-I-O No.10/Demand/Ack-1/97 dated 31.1.1997g) O-I-O No.11/Demand/Ack-1/97 dated 31.1.1997 15. In all these orders, there was a common issue of valuation of thermit portions cleared for self use. These orders have become final and not been challenged by the department. The present show cause notice dated 18.1.1999 has been issued more than three years after the first show cause notice dated 27.11.1995 was issued covering the same issues to twelve clearances of thermit portions and valuation of dry moulds. It was further held by the Tribunal that the impugned order overlaps the earlier adjudication orders in respect of period from 7.3.1995 to 31.3.1995. We agree with the findings recorded by the Tribunal.16. Since, the department has accepted the earlier adjudications on the same issue for part of the period, revenue cannot be permitted to re-agitate the same point for a part of the remaining period. There cannot be second proceedings raising the demand for the same period.17. For the reasons stated above, appeals filed by the revenue are dismissed. Parties shall bear their own costs.18. In the case of ATL, on merits, the Tribunal held that even if ATL and ITCL are related persons, there is no material evidence that the transaction between them was not at arms length. The dry moulds manufactured by ATL were supplied to ITCL in naked condition since no packing material was used. ATL has entered into a contract with railways and the price charged to railways after deducting the cost of packing was the same as charged to ITCL. In other words, the transaction to ITCL was at or about the same price as to the railways. Thus, there is no undervaluation. 19. We agree with the view taken by the Tribunal that even if ATL & ITCL are taken to be related persons [we are not holding so], it has not influenced the price. There is no under-valuation. ATL has been selling the product to ITCL and Indian Railways at or about the same price.
### Response:
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### Explanation:
15. In all these orders, there was a common issue of valuation of thermit portions cleared for self use. These orders have become final and not been challenged by the department. The present show cause notice dated 18.1.1999 has been issued more than three years after the first show cause notice dated 27.11.1995 was issued covering the same issues to twelve clearances of thermit portions and valuation of dry moulds. It was further held by the Tribunal that the impugned order overlaps the earlier adjudication orders in respect of period from 7.3.1995 to 31.3.1995. We agree with the findings recorded by the Tribunal.16. Since, the department has accepted the earlier adjudications on the same issue for part of the period, revenue cannot be permitted tothe same point for a part of the remaining period. There cannot be second proceedings raising the demand for the same period.17. For the reasons stated above, appeals filed by the revenue are dismissed. Parties shall bear their own costs.18. In the case of ATL, on merits, the Tribunal held that even if ATL and ITCL are related persons, there is no material evidence that the transaction between them was not at arms length. The dry moulds manufactured by ATL were supplied to ITCL in naked condition since no packing material was used. ATL has entered into a contract with railways and the price charged to railways after deducting the cost of packing was the same as charged to ITCL. In other words, the transaction to ITCL was at or about the same price as to the railways. Thus, there is no undervaluation.
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Deccan Farms and Distilleries Limited Vs. Velabai Laxmidas Bhanji | by sub-s. (1) of s. 73. The amount received from the applicants is required to be kept in a separate account under sub-s. (3) of s. 73 until the permission is granted or the appeal preferred against the refusal to grant such permission is disposed of under s. 22 of the Securities Contracts (Regulation) Act, 1956. The text of sub-s. (3a) Of s. 73 reads:" (3a) Moneys standing to the credit of the separate bank account referred to in sub-section (3) shall not be utilised for any purpose other than the following purposes, namely: - (a) adjustment against allotment of shares, where the shares have been permitted to be dealt in on the stock exchange or each stock exchange specified in the prospectus; or (b) repayment of moneys received from applicants in pursuance of the prospectus, where shares have not been permitted to be dealt in on the stock exchange or each stock exchange specified in the prospectus, as the case may be, or, where the company is for any other reason unable to make the allotment of shares. "(16) THIS authorises the utilisation of the money for any one of the two purposes and for no other purpose. The language of s. 73 is simple and clear. This section had been amended by the companies (Amendment) Act, 1974, whereby greater protection was sough to be given to the investing public, underwriting institutions and trade than higher to before. It also became necessary for the government to have a second look at some of the provisions of s. 73 in view of the judgment in Union of India v. Allied International Products Ltd. [1971] 41 Comp Case 127 (SC). Looking to the interest of the investing public, the rate of interest was enhanced from six per cent. to twelve per cent. by the 1974 Amendment, so that the investor received the repayment at a higher interest when the allotment became void under s. 73 (1). The 1974 Amendment brought about the substitution of sub-ss. (1) and (5) and insertion of sub-ss. (2a), (2b), (3a), and amendment of some other provisions of s. 73 in order to provide several safeguards, but in real life these provisions can be set at naught as in the present case. Although the allotment has become void, yet the moneys have not been repaid with interest in the manner laid down and, on the other hand, over eight lakhs of rupees, out of fifteen lakhs of rupees, have been utilised for purposes other than those specified under s. 73 (3a) quoted above. This kind of mischief cannot be avoided unless s. 73 is further amended to prohibit operation of such separate bank account until a company produces the permission of the stock exchange concerned as contemplated under s. 73. It is against such permission that the separate bank account should be allowed to be operated. This case illustrates that more safeguards are needed to give real and effective protection to the investing public, underwriting institutions and trade. There is no check, as this case shows, in misapplying the moneys. In fact, the moneys falling into the coffers of a company pursuant to the prospectus cannot be touched or employed to use unless the conditions contemplated under s. 73 are faithfully complied with. (17) IT seems to us that, in using these moneys, the provisions of s. 73 are breached. Such breach is made punishable apart from fixing joint and several liability on the directors. It may be made clear that we are not expressing any opinion on this aspect of the case as the point is not in issue before us. We find that there is no prospect of the company doing any business. There is a complete deadlock among the directors. These directors have filed a winding-up petition on the ground that it is just and equitable that the company be wound up. The majority of the directors do not have confidence and faith in the managing director, Shri I. B. Patil. Large amounts have been paid by them to a concern in which both of them are interested. In these circumstances, it is in the interest of the petitioning creditor and other supporting creditors that the assets of the petitioning creditor and other supporting creditors that the assets of the company should be protected. After all, the object of winding-up by the court is to facilitate the protection and realisation of the assets of a company should be protected. After realisation of the assets of a company with a view to ensure an equitable distribution thereof among those entitled. In our opinion, the winding-up order is in the general interest of all the creditors. However, we make it clear that these observations will not prejudice the scheme, which is presented by the company under s. 391 of the Companies Act. (18) THE last contention was that the petitioning-creditor should have filed a suit. Winding up is no alternative to the ordinary remedy provided for recovery of a debt. No debt, a winding-up petition is not a legitimate means of selling to enforce payment of a debt, but such a debt should be disputed by the company. There should be some bona fide dispute. In the present case, the debt is admitted. It was admitted in reply to the statutory notice. It was no disputed at the time when the company petition came for admission. It was also not disputed in the affidavit opposing the admission of the petition. In the present case, the deeming provisions of s. 431 (1) (a) are clearly attracted as the company has neglected to pay the debt of the petitioner. There is nothing to show that the petitioner has instituted the present proceedings with any ulterior motive. In these circumstances, the petitioner has rightly availed of the cheap and speedy remedy provided under the Companies Act to creditors who are unable to recover debts, and we see no reason why the petitioner should have been refused this cheap remedy. | 0[ds](13) IN the case before the Supreme Court, creditors to the extent of Rs. 7,50,000 opposed thepetition, whereas creditors demanding Rs. 44,477. 56 in all supported the same. In the case of Focus Advertising P. Ltd. [1975] 45 Comp Cas 534 (Bom) in this court, at the hearing of the petition, affidavits of the eight supporting creditors showed that their claims were of the aggregate value of Rs. 7,68,000 and those opposing the winding up totalled Rs. 3,03,862. 07. In all these three cases, the courts considered the wishes of the creditors on both sides. These cases provide a guideline for considering the completing interest of the creditors. The rule is that if there is opposition to the making of theorder by the creditors, the court will consider their wishes and may decline to make theorder. This rule finds place in s. 557 of the Companies Act, 1956. The wishes of the creditors are to be examined by the court. The court has to see whether the case of the creditors opposing the winding up is reasonable and whether there are matters, which should be inquired into and investigated if aorder is made. The court can consider the wishes of the creditors "as proved before it by sufficient evidence" as laid down by s. 557. A fact is said to be "proved" when after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The creditors who wish that their wishes should be regarded have to place the necessary evidence before the court. They have to point out reasonable grounds in order to enable the court to ascertain whether the grounds are good. Either the material should be on record or the creditors should place it on affidavit or in some other satisfactory manner to enable the court to determine the competing wishes and make a judicial choice at the hearing. If this is not possible to decide at the hearing, the court can direct that a meeting of the creditors be called and held in such manner as laid down in cls. (b) an (c) of s. 557 (1) of the Companies Act, 1956. (14)the present case,there is no evidence that at the time of the passing of theorder, any of the creditors of the company opposed the petition for winding up. On the other hand, at the time of the hearing of the petition for winding up, three creditors to the extent of Rs. 13,000 had supported the petition for winding up. There is nothing to show that any other creditor was present at the hearing to oppose the present petition for winding up. What was urged on behalf of the company by Mr. Poddar was that a scheme has been presented under s. 391 of the Companies Act, and at the meeting called under the directions of the court under that section, 79 creditors had attended, out of whom 50 creditors to the extent of about Rs. 4,47,000 had voted for the scheme and 26 creditors of the value of about Rs. 88,000 in the aggregate had opposed the scheme. The provision for ascertaining the wishes of the creditors under s. 557 is for a different situation than the one, which is contemplated under s. 391. In fact, under s. 391, there is no question of ascertaining the wishes of the creditors by the court. It is a provision for scrutinizing the scheme, which may be put forth either by the company or by any of the class of creditors or members of the company. In the case before us, at the time of the passing of the order for winding up, there was no evidence at all, much less sufficient evidence, to show that the creditors were opposing the winding up, whose wishes could have been ascertained by the court. It is true that it is not an absolute rule of law that the court is bound to make an order for winging up when the conditions required for winding up exist. It is entirely a matter of judicial discretion. Inthe present case,in our opinion, the learned company judge has exercised that discretion in a sound and proper manner and there is no reason to interfere with the same. (15) THE other question which requires to be considered is whether the order for winding up would benefit theor the companys creditors generally. In this connection, mr. Poddar pointed out that the company has liquid cash of nearly Rs. 7 lakhs, but on account of the obstructive and destructive attitude adopted by some of the directors, the amount is not realisable from the banks as the police has instructed the banks not to allow the operation of the bank accounts. In this connection, the provisions of s. 73 of the Companies Act are being overlooked. Mr. Poddar was grossly in error in treating the amount lying in the bank accounts, as an asset available to the company for disbursement at the discretion and sweet will of the companys directors. It is admitted that the Bombay Stock Exchange has withdrawn the permission contemplated under s. 73 since 26th April, 1975, and that no appeal has been filed against that decision.(5) of s. 73 provides that for the purposes of this section, it shall be deemed that permission has not been granted if the application for permission, where made, has not been disposed of within the time specified inon (1), to the extent it is relevant, says that where permission has been applied for before the tenth day after the first issue of the prospectus, or, where such permission has been applied for before that day, if the permission has not been granted by the Stock Exchange before the expiry of ten weeks from the date of the closing of the subscription lists, any allotment made on an application in pursuance of such prospectus shall be void. Inthe present case,the permission was given subject to certain conditions being fulfilled and since those conditions were not complied with, the permission was revoked. The conditional permission did not amount to grant of the application for permission to deal in shares on the Stock Exchange as contemplated under s. 73 (1). The permission intended under thatis an unqualified and wholesome permission. Any qualified permission is as good as not granted and the application should be construed as not disposed of within the time prescribed by(1) of s. 73. The amount received from the applicants is required to be kept in a separate account under(3) of s. 73 until the permission is granted or the appeal preferred against the refusal to grant such permission is disposed of under s. 22 of the Securities Contracts (Regulation) Act, 1956. The text of(3a) Of s. 73 reads:" (3a) Moneys standing to the credit of the separate bank account referred to in(3) shall not be utilised for any purpose other than the following purposes, namely:(a) adjustment against allotment of shares, where the shares have been permitted to be dealt in on the stock exchange or each stock exchange specified in the prospectus; or (b) repayment of moneys received from applicants in pursuance of the prospectus, where shares have not been permitted to be dealt in on the stock exchange or each stock exchange specified in the prospectus, as the case may be, or, where the company is for any other reason unable to make the allotment of shares. "(16) THIS authorises the utilisation of the money for any one of the two purposes and for no other purpose. The language of s. 73 is simple and clear. This section had been amended by the companies (Amendment) Act, 1974, whereby greater protection was sough to be given to the investing public, underwriting institutions and trade than higher to before. It also became necessary for the government to have a second look at some of the provisions of s. 73 in view of the judgment in Union of India v. Allied International Products Ltd. [1971] 41 Comp Case 127 (SC). Looking to the interest of the investing public, the rate of interest was enhanced from six per cent. to twelve per cent. by the 1974 Amendment, so that the investor received the repayment at a higher interest when the allotment became void under s. 73 (1). The 1974 Amendment brought about the substitution of(1) and (5) and insertion of(2a), (2b), (3a), and amendment of some other provisions of s. 73 in order to provide several safeguards, but in real life these provisions can be set at naught as in the present case. Although the allotment has become void, yet the moneys have not been repaid with interest in the manner laid down and, on the other hand, over eight lakhs of rupees, out of fifteen lakhs of rupees, have been utilised for purposes other than those specified under s. 73 (3a) quoted above. This kind of mischief cannot be avoided unless s. 73 is further amended to prohibit operation of such separate bank account until a company produces the permission of the stock exchange concerned as contemplated under s. 73. It is against such permission that the separate bank account should be allowed to be operated. This case illustrates that more safeguards are needed to give real and effective protection to the investing public, underwriting institutions and trade. There is no check, as this case shows, in misapplying the moneys. In fact, the moneys falling into the coffers of a company pursuant to the prospectus cannot be touched or employed to use unless the conditions contemplated under s. 73 are faithfully complied with. (17) IT seems to us that, in using these moneys, the provisions of s. 73 are breached. Such breach is made punishable apart from fixing joint and several liability on the directors. It may be made clear that we are not expressing any opinion on this aspect of the case as the point is not in issue before us. We find that there is no prospect of the company doing any business. There is a complete deadlock among the directors. These directors have filed apetition on the ground that it is just and equitable that the company be wound up. The majority of the directors do not have confidence and faith in the managing director, Shri I. B. Patil. Large amounts have been paid by them to a concern in which both of them are interested. In these circumstances, it is in the interest of the petitioning creditor and other supporting creditors that the assets of the petitioning creditor and other supporting creditors that the assets of the company should be protected. After all, the object ofby the court is to facilitate the protection and realisation of the assets of a company should be protected. After realisation of the assets of a company with a view to ensure an equitable distribution thereof among those entitled. In our opinion, theorder is in the general interest of all the creditors. However, we make it clear that these observations will not prejudice the scheme, which is presented by the company under s. 391 of the Companies Act.up is no alternative to the ordinary remedy provided for recovery of a debt. No debt, apetition is not a legitimate means of selling to enforce payment of a debt, but such a debt should be disputed by the company. There should be some bona fide dispute. Inthe present case,the debt is admitted. It was admitted in reply to the statutory notice. It was no disputed at the time when the company petition came for admission. It was also not disputed in the affidavit opposing the admission of the petition. Inthe present case,the deeming provisions of s. 431 (1) (a) are clearly attracted as the company has neglected to pay the debt of the petitioner. There is nothing to show that the petitioner has instituted the present proceedings with any ulterior motive. In these circumstances, the petitioner has rightly availed of the cheap and speedy remedy provided under the Companies Act to creditors who are unable to recover debts, and we see no reason why the petitioner should have been refused this cheap remedy. | 0 | 5,572 | 2,317 | ### 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:
by sub-s. (1) of s. 73. The amount received from the applicants is required to be kept in a separate account under sub-s. (3) of s. 73 until the permission is granted or the appeal preferred against the refusal to grant such permission is disposed of under s. 22 of the Securities Contracts (Regulation) Act, 1956. The text of sub-s. (3a) Of s. 73 reads:" (3a) Moneys standing to the credit of the separate bank account referred to in sub-section (3) shall not be utilised for any purpose other than the following purposes, namely: - (a) adjustment against allotment of shares, where the shares have been permitted to be dealt in on the stock exchange or each stock exchange specified in the prospectus; or (b) repayment of moneys received from applicants in pursuance of the prospectus, where shares have not been permitted to be dealt in on the stock exchange or each stock exchange specified in the prospectus, as the case may be, or, where the company is for any other reason unable to make the allotment of shares. "(16) THIS authorises the utilisation of the money for any one of the two purposes and for no other purpose. The language of s. 73 is simple and clear. This section had been amended by the companies (Amendment) Act, 1974, whereby greater protection was sough to be given to the investing public, underwriting institutions and trade than higher to before. It also became necessary for the government to have a second look at some of the provisions of s. 73 in view of the judgment in Union of India v. Allied International Products Ltd. [1971] 41 Comp Case 127 (SC). Looking to the interest of the investing public, the rate of interest was enhanced from six per cent. to twelve per cent. by the 1974 Amendment, so that the investor received the repayment at a higher interest when the allotment became void under s. 73 (1). The 1974 Amendment brought about the substitution of sub-ss. (1) and (5) and insertion of sub-ss. (2a), (2b), (3a), and amendment of some other provisions of s. 73 in order to provide several safeguards, but in real life these provisions can be set at naught as in the present case. Although the allotment has become void, yet the moneys have not been repaid with interest in the manner laid down and, on the other hand, over eight lakhs of rupees, out of fifteen lakhs of rupees, have been utilised for purposes other than those specified under s. 73 (3a) quoted above. This kind of mischief cannot be avoided unless s. 73 is further amended to prohibit operation of such separate bank account until a company produces the permission of the stock exchange concerned as contemplated under s. 73. It is against such permission that the separate bank account should be allowed to be operated. This case illustrates that more safeguards are needed to give real and effective protection to the investing public, underwriting institutions and trade. There is no check, as this case shows, in misapplying the moneys. In fact, the moneys falling into the coffers of a company pursuant to the prospectus cannot be touched or employed to use unless the conditions contemplated under s. 73 are faithfully complied with. (17) IT seems to us that, in using these moneys, the provisions of s. 73 are breached. Such breach is made punishable apart from fixing joint and several liability on the directors. It may be made clear that we are not expressing any opinion on this aspect of the case as the point is not in issue before us. We find that there is no prospect of the company doing any business. There is a complete deadlock among the directors. These directors have filed a winding-up petition on the ground that it is just and equitable that the company be wound up. The majority of the directors do not have confidence and faith in the managing director, Shri I. B. Patil. Large amounts have been paid by them to a concern in which both of them are interested. In these circumstances, it is in the interest of the petitioning creditor and other supporting creditors that the assets of the petitioning creditor and other supporting creditors that the assets of the company should be protected. After all, the object of winding-up by the court is to facilitate the protection and realisation of the assets of a company should be protected. After realisation of the assets of a company with a view to ensure an equitable distribution thereof among those entitled. In our opinion, the winding-up order is in the general interest of all the creditors. However, we make it clear that these observations will not prejudice the scheme, which is presented by the company under s. 391 of the Companies Act. (18) THE last contention was that the petitioning-creditor should have filed a suit. Winding up is no alternative to the ordinary remedy provided for recovery of a debt. No debt, a winding-up petition is not a legitimate means of selling to enforce payment of a debt, but such a debt should be disputed by the company. There should be some bona fide dispute. In the present case, the debt is admitted. It was admitted in reply to the statutory notice. It was no disputed at the time when the company petition came for admission. It was also not disputed in the affidavit opposing the admission of the petition. In the present case, the deeming provisions of s. 431 (1) (a) are clearly attracted as the company has neglected to pay the debt of the petitioner. There is nothing to show that the petitioner has instituted the present proceedings with any ulterior motive. In these circumstances, the petitioner has rightly availed of the cheap and speedy remedy provided under the Companies Act to creditors who are unable to recover debts, and we see no reason why the petitioner should have been refused this cheap remedy.
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### Explanation:
Stock Exchange as contemplated under s. 73 (1). The permission intended under thatis an unqualified and wholesome permission. Any qualified permission is as good as not granted and the application should be construed as not disposed of within the time prescribed by(1) of s. 73. The amount received from the applicants is required to be kept in a separate account under(3) of s. 73 until the permission is granted or the appeal preferred against the refusal to grant such permission is disposed of under s. 22 of the Securities Contracts (Regulation) Act, 1956. The text of(3a) Of s. 73 reads:" (3a) Moneys standing to the credit of the separate bank account referred to in(3) shall not be utilised for any purpose other than the following purposes, namely:(a) adjustment against allotment of shares, where the shares have been permitted to be dealt in on the stock exchange or each stock exchange specified in the prospectus; or (b) repayment of moneys received from applicants in pursuance of the prospectus, where shares have not been permitted to be dealt in on the stock exchange or each stock exchange specified in the prospectus, as the case may be, or, where the company is for any other reason unable to make the allotment of shares. "(16) THIS authorises the utilisation of the money for any one of the two purposes and for no other purpose. The language of s. 73 is simple and clear. This section had been amended by the companies (Amendment) Act, 1974, whereby greater protection was sough to be given to the investing public, underwriting institutions and trade than higher to before. It also became necessary for the government to have a second look at some of the provisions of s. 73 in view of the judgment in Union of India v. Allied International Products Ltd. [1971] 41 Comp Case 127 (SC). Looking to the interest of the investing public, the rate of interest was enhanced from six per cent. to twelve per cent. by the 1974 Amendment, so that the investor received the repayment at a higher interest when the allotment became void under s. 73 (1). The 1974 Amendment brought about the substitution of(1) and (5) and insertion of(2a), (2b), (3a), and amendment of some other provisions of s. 73 in order to provide several safeguards, but in real life these provisions can be set at naught as in the present case. Although the allotment has become void, yet the moneys have not been repaid with interest in the manner laid down and, on the other hand, over eight lakhs of rupees, out of fifteen lakhs of rupees, have been utilised for purposes other than those specified under s. 73 (3a) quoted above. This kind of mischief cannot be avoided unless s. 73 is further amended to prohibit operation of such separate bank account until a company produces the permission of the stock exchange concerned as contemplated under s. 73. It is against such permission that the separate bank account should be allowed to be operated. This case illustrates that more safeguards are needed to give real and effective protection to the investing public, underwriting institutions and trade. There is no check, as this case shows, in misapplying the moneys. In fact, the moneys falling into the coffers of a company pursuant to the prospectus cannot be touched or employed to use unless the conditions contemplated under s. 73 are faithfully complied with. (17) IT seems to us that, in using these moneys, the provisions of s. 73 are breached. Such breach is made punishable apart from fixing joint and several liability on the directors. It may be made clear that we are not expressing any opinion on this aspect of the case as the point is not in issue before us. We find that there is no prospect of the company doing any business. There is a complete deadlock among the directors. These directors have filed apetition on the ground that it is just and equitable that the company be wound up. The majority of the directors do not have confidence and faith in the managing director, Shri I. B. Patil. Large amounts have been paid by them to a concern in which both of them are interested. In these circumstances, it is in the interest of the petitioning creditor and other supporting creditors that the assets of the petitioning creditor and other supporting creditors that the assets of the company should be protected. After all, the object ofby the court is to facilitate the protection and realisation of the assets of a company should be protected. After realisation of the assets of a company with a view to ensure an equitable distribution thereof among those entitled. In our opinion, theorder is in the general interest of all the creditors. However, we make it clear that these observations will not prejudice the scheme, which is presented by the company under s. 391 of the Companies Act.up is no alternative to the ordinary remedy provided for recovery of a debt. No debt, apetition is not a legitimate means of selling to enforce payment of a debt, but such a debt should be disputed by the company. There should be some bona fide dispute. Inthe present case,the debt is admitted. It was admitted in reply to the statutory notice. It was no disputed at the time when the company petition came for admission. It was also not disputed in the affidavit opposing the admission of the petition. Inthe present case,the deeming provisions of s. 431 (1) (a) are clearly attracted as the company has neglected to pay the debt of the petitioner. There is nothing to show that the petitioner has instituted the present proceedings with any ulterior motive. In these circumstances, the petitioner has rightly availed of the cheap and speedy remedy provided under the Companies Act to creditors who are unable to recover debts, and we see no reason why the petitioner should have been refused this cheap remedy.
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Zamindar Of Ettayapuram Vs. The State Of Madras.(And Connected Appeals) | in excess of what he was entitled to. 12. As regards the first ground the learned Solicitor-General contended that the entering into of the Covenant by the Rules of the Kathiawar State was an act of State and that the Municipal Courts were not competent to entertain any disputes arising out of the Covenant. He also relied upon Article 363 of the Constitution which bars interference by Courts in any disputes arising out of certain treaties and covenants.13. The Ruler of the Wadhwan State in the exercise of his legislative capacity passed the Dhara No. 29 of St. 2004 which gave the Appellant certain statutory rights. Even though the Ruler may have had the power to repeal this enactment he did not do so and therefore so long as the Dhara remained in force the Appellant was entitled to the benefit of it and could have enforced his rights under it in the State Courts either against the State itself or at any rate against such of the officers of the State as wrongfully withheld his salary or wrongfully dismissed him. When the Wadhwan State merged with the Saurashtra State and again when it acceded to the Dominion of India all the existing laws continued until repealed. It follows that the Appellants right under the Dhara No. 29 of St.2004 were still good and could have been enforced in the Municipal Courts until either repealed or repudiated as an act of State. These rights were carried over after the Constitution when the Indian Republic was formed with this important difference viz, that as the Appellant then became an Indian citizen the repudiation as an act of State was not any longer possible. The only way therefore to defeat his rights was by legislation if that could be done under the Constitution. There was in fact no such legislation and therefore his rights remained and the Municipal Courts would be entitled to examine the contract and apply the Dhara No. 29 of St. 2004 and enforce whatever right the Appellant had under that Dhara and his contract of service. (See art 300 (1) and Art. 372 (1) of the Constitution). The covenant could be looked at to see whether the new sovereign had waived his rights to ignore rights given under the laws of the former sovereign.The terms of the Covenant showed that the existing laws were to continue and whatever the rights of the Appellant were under the existing laws were available for enforcement to the Appellant and there was no bar to the Municipal Courts entertaining a suit to enforce such rights. 14. In this view of the matter Art. 363 of the Constitution could not be invoked the Respondent. There was no dispute arising out of the Covenant and what the Appellant was doing was merely to enforce his right Under the existing - laws which continued in force until they were repealed by appropriate legislation. This ground therefore could not avail the Respondent. 15. As regards the second ground, the learned Solicitor-general urged before us that under the terms of the guarantee incorporated in Article 16 of the Covenant it was open to the Saurashtra State to Compulsorily retire the Appellant on payment of reasonable compensation. He urged that that compensation could not be any more than what the Appellant would have been entitled to receive from the Ruler of the Wadhwan State if he had continued in his service at the time when he was compulsorily retired by the Saurashtra State. It was pointed out that the services of the Appellant with the Wadhwan State were during the pleasure of the Ruler of the State and that the Ruler of the State could have compulsorily retired him without being liable to pay him any compensation whatever and that therefore the position of the the Appellant was no better so far as the Saurashtra State also was converned. We do not accept these contentions. Even though the tenure of the Appellants service with the Ruler of the Wadhwan State was initially during the pleasure of the Ruler, the Ruler put a fetter upon his powers to dispense with the services of the Appellant when the Dhara No. 29 of St. 2004 was enacted by him. This obligation of the Ruler passed to the Saurashtra State on the making over of the administration of the Wadhwan State to the Raj Pramukh on the 15the March 1948 and the Saurashtra State also could not dispense with the services or compulsorily retire the Appellant before he attained 60 years of age. If the Saurashtra State chose to compulsorily retire the Appellant it could only do so on payment of reasonable compensation and in arriving at the figureof reasonable compensation the Saurashtra State would have to take into consideration the tenure of the Appellants service with the Wadhwan State which entitled him to continue in such service until he attained his age of 60 years. This was one of the circumstances to be taken into account when determining the amount of reasonable compensation to be awarded to him. We have been taken through the portion of the Trial courts judgment which deals with the amount of compensation and we are of the opinion that the amount of compensation awarded by the Trial Court to the Appellant was justified under the circumstances. This ground also does not avail the Respondent. 16. The amount of pension, viz, Rs. 43-11-0 per month which was granted by the Saurashtra State to the Appellant was not the subject-matter of the suit. The amount of compensation clamed by the Appellant was over and above the said amount of pension and the Trial Court adjudicated upon such compensation. The Appellants rights in regard to the pension were not at all affected by the amount of compensation awarded by the Trial Court to him. The Appellant will therefore continue to receive the amount of pension in addition to whatever compensation has been awarded to him, by the Trial Court. | 1[ds]13. The Ruler of the Wadhwan State in the exercise of his legislative capacity passed the Dhara No. 29 of St. 2004 which gave the Appellant certain statutory rights. Even though the Ruler may have had the power to repeal this enactment he did not do so and therefore so long as the Dhara remained in force the Appellant was entitled to the benefit of it and could have enforced his rights under it in the State Courts either against the State itself or at any rate against such of the officers of the State as wrongfully withheld his salary or wrongfully dismissed himWhen the Wadhwan State merged with the Saurashtra State and again when it acceded to the Dominion of India all the existing laws continued until repealed. It follows that the Appellants right under the Dhara No. 29 of St.2004 were still good and could have been enforced in the Municipal Courts until either repealed or repudiated as an act of State. These rights were carried over after the Constitution when the Indian Republic was formed with this important difference viz, that as the Appellant then became an Indian citizen the repudiation as an act of State was not any longer possible. The only way therefore to defeat his rights was by legislation if that could be done under the ConstitutionThere was in fact no such legislation and therefore his rights remained and the Municipal Courts would be entitled to examine the contract and apply the Dhara No. 29 of St. 2004 and enforce whatever right the Appellant had under that Dhara and his contract of service. (See art 300 (1) and Art. 372 (1) of the Constitution). The covenant could be looked at to see whether the new sovereign had waived his rights to ignore rights given under the laws of the former sovereign.The terms of the Covenant showed that the existing laws were to continue and whatever the rights of the Appellant were under the existing laws were available for enforcement to the Appellant and there was no bar to the Municipal Courts entertaining a suit to enforce such rights14. In this view of the matter Art. 363 of the Constitution could not be invoked the Respondent. There was no dispute arising out of the Covenant and what the Appellant was doing was merely to enforce his right Under the existinglaws which continued in force until they were repealed by appropriate legislation. This ground therefore could not avail the Respondent15. As regards the second ground, the learnedl urged before us that under the terms of the guarantee incorporated in Article 16 of the Covenant it was open to the Saurashtra State to Compulsorily retire the Appellant on payment of reasonable compensation. He urged that that compensation could not be any more than what the Appellant would have been entitled to receive from the Ruler of the Wadhwan State if he had continued in his service at the time when he was compulsorily retired by the Saurashtra State. It was pointed out that the services of the Appellant with the Wadhwan State were during the pleasure of the Ruler of the State and that the Ruler of the State could have compulsorily retired him without being liable to pay him any compensation whatever and that therefore the position of the the Appellant was no better so far as the Saurashtra State also was converned.We do not accept these contentionsEven though the tenure of the Appellants service with the Ruler of the Wadhwan State was initially during the pleasure of the Ruler, the Ruler put a fetter upon his powers to dispense with the services of the Appellant when the Dhara No. 29 of St. 2004 was enacted by him. This obligation of the Ruler passed to the Saurashtra State on the making over of the administration of the Wadhwan State to the Raj Pramukh on the 15the March 1948 and the Saurashtra State also could not dispense with the services or compulsorily retire the Appellant before he attained 60 years of ageIf the Saurashtra State chose to compulsorily retire the Appellant it could only do so on payment of reasonable compensation and in arriving at the figureof reasonable compensation the Saurashtra State would have to take into consideration the tenure of the Appellants service with the Wadhwan State which entitled him to continue in such service until he attained his age of 60 years. This was one of the circumstances to be taken into account when determining the amount of reasonable compensation to be awarded to him. We have been taken through the portion of the Trial courts judgment which deals with the amount of compensation and we are of the opinion that the amount of compensation awarded by the Trial Court to the Appellant was justified under the circumstances. This ground also does not avail the Respondent16. The amount of pension, viz, Rs.0 per month which was granted by the Saurashtra State to the Appellant was not ther of the suit. The amount of compensation clamed by the Appellant was over and above the said amount of pension and the Trial Court adjudicated upon such compensation. The Appellants rights in regard to the pension were not at all affected by the amount of compensation awarded by the Trial Court to him. The Appellant will therefore continue to receive the amount of pension in addition to whatever compensation has been awarded to him, by the Trial Court. | 1 | 2,252 | 954 | ### Instruction:
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in excess of what he was entitled to. 12. As regards the first ground the learned Solicitor-General contended that the entering into of the Covenant by the Rules of the Kathiawar State was an act of State and that the Municipal Courts were not competent to entertain any disputes arising out of the Covenant. He also relied upon Article 363 of the Constitution which bars interference by Courts in any disputes arising out of certain treaties and covenants.13. The Ruler of the Wadhwan State in the exercise of his legislative capacity passed the Dhara No. 29 of St. 2004 which gave the Appellant certain statutory rights. Even though the Ruler may have had the power to repeal this enactment he did not do so and therefore so long as the Dhara remained in force the Appellant was entitled to the benefit of it and could have enforced his rights under it in the State Courts either against the State itself or at any rate against such of the officers of the State as wrongfully withheld his salary or wrongfully dismissed him. When the Wadhwan State merged with the Saurashtra State and again when it acceded to the Dominion of India all the existing laws continued until repealed. It follows that the Appellants right under the Dhara No. 29 of St.2004 were still good and could have been enforced in the Municipal Courts until either repealed or repudiated as an act of State. These rights were carried over after the Constitution when the Indian Republic was formed with this important difference viz, that as the Appellant then became an Indian citizen the repudiation as an act of State was not any longer possible. The only way therefore to defeat his rights was by legislation if that could be done under the Constitution. There was in fact no such legislation and therefore his rights remained and the Municipal Courts would be entitled to examine the contract and apply the Dhara No. 29 of St. 2004 and enforce whatever right the Appellant had under that Dhara and his contract of service. (See art 300 (1) and Art. 372 (1) of the Constitution). The covenant could be looked at to see whether the new sovereign had waived his rights to ignore rights given under the laws of the former sovereign.The terms of the Covenant showed that the existing laws were to continue and whatever the rights of the Appellant were under the existing laws were available for enforcement to the Appellant and there was no bar to the Municipal Courts entertaining a suit to enforce such rights. 14. In this view of the matter Art. 363 of the Constitution could not be invoked the Respondent. There was no dispute arising out of the Covenant and what the Appellant was doing was merely to enforce his right Under the existing - laws which continued in force until they were repealed by appropriate legislation. This ground therefore could not avail the Respondent. 15. As regards the second ground, the learned Solicitor-general urged before us that under the terms of the guarantee incorporated in Article 16 of the Covenant it was open to the Saurashtra State to Compulsorily retire the Appellant on payment of reasonable compensation. He urged that that compensation could not be any more than what the Appellant would have been entitled to receive from the Ruler of the Wadhwan State if he had continued in his service at the time when he was compulsorily retired by the Saurashtra State. It was pointed out that the services of the Appellant with the Wadhwan State were during the pleasure of the Ruler of the State and that the Ruler of the State could have compulsorily retired him without being liable to pay him any compensation whatever and that therefore the position of the the Appellant was no better so far as the Saurashtra State also was converned. We do not accept these contentions. Even though the tenure of the Appellants service with the Ruler of the Wadhwan State was initially during the pleasure of the Ruler, the Ruler put a fetter upon his powers to dispense with the services of the Appellant when the Dhara No. 29 of St. 2004 was enacted by him. This obligation of the Ruler passed to the Saurashtra State on the making over of the administration of the Wadhwan State to the Raj Pramukh on the 15the March 1948 and the Saurashtra State also could not dispense with the services or compulsorily retire the Appellant before he attained 60 years of age. If the Saurashtra State chose to compulsorily retire the Appellant it could only do so on payment of reasonable compensation and in arriving at the figureof reasonable compensation the Saurashtra State would have to take into consideration the tenure of the Appellants service with the Wadhwan State which entitled him to continue in such service until he attained his age of 60 years. This was one of the circumstances to be taken into account when determining the amount of reasonable compensation to be awarded to him. We have been taken through the portion of the Trial courts judgment which deals with the amount of compensation and we are of the opinion that the amount of compensation awarded by the Trial Court to the Appellant was justified under the circumstances. This ground also does not avail the Respondent. 16. The amount of pension, viz, Rs. 43-11-0 per month which was granted by the Saurashtra State to the Appellant was not the subject-matter of the suit. The amount of compensation clamed by the Appellant was over and above the said amount of pension and the Trial Court adjudicated upon such compensation. The Appellants rights in regard to the pension were not at all affected by the amount of compensation awarded by the Trial Court to him. The Appellant will therefore continue to receive the amount of pension in addition to whatever compensation has been awarded to him, by the Trial Court.
### Response:
1
### Explanation:
13. The Ruler of the Wadhwan State in the exercise of his legislative capacity passed the Dhara No. 29 of St. 2004 which gave the Appellant certain statutory rights. Even though the Ruler may have had the power to repeal this enactment he did not do so and therefore so long as the Dhara remained in force the Appellant was entitled to the benefit of it and could have enforced his rights under it in the State Courts either against the State itself or at any rate against such of the officers of the State as wrongfully withheld his salary or wrongfully dismissed himWhen the Wadhwan State merged with the Saurashtra State and again when it acceded to the Dominion of India all the existing laws continued until repealed. It follows that the Appellants right under the Dhara No. 29 of St.2004 were still good and could have been enforced in the Municipal Courts until either repealed or repudiated as an act of State. These rights were carried over after the Constitution when the Indian Republic was formed with this important difference viz, that as the Appellant then became an Indian citizen the repudiation as an act of State was not any longer possible. The only way therefore to defeat his rights was by legislation if that could be done under the ConstitutionThere was in fact no such legislation and therefore his rights remained and the Municipal Courts would be entitled to examine the contract and apply the Dhara No. 29 of St. 2004 and enforce whatever right the Appellant had under that Dhara and his contract of service. (See art 300 (1) and Art. 372 (1) of the Constitution). The covenant could be looked at to see whether the new sovereign had waived his rights to ignore rights given under the laws of the former sovereign.The terms of the Covenant showed that the existing laws were to continue and whatever the rights of the Appellant were under the existing laws were available for enforcement to the Appellant and there was no bar to the Municipal Courts entertaining a suit to enforce such rights14. In this view of the matter Art. 363 of the Constitution could not be invoked the Respondent. There was no dispute arising out of the Covenant and what the Appellant was doing was merely to enforce his right Under the existinglaws which continued in force until they were repealed by appropriate legislation. This ground therefore could not avail the Respondent15. As regards the second ground, the learnedl urged before us that under the terms of the guarantee incorporated in Article 16 of the Covenant it was open to the Saurashtra State to Compulsorily retire the Appellant on payment of reasonable compensation. He urged that that compensation could not be any more than what the Appellant would have been entitled to receive from the Ruler of the Wadhwan State if he had continued in his service at the time when he was compulsorily retired by the Saurashtra State. It was pointed out that the services of the Appellant with the Wadhwan State were during the pleasure of the Ruler of the State and that the Ruler of the State could have compulsorily retired him without being liable to pay him any compensation whatever and that therefore the position of the the Appellant was no better so far as the Saurashtra State also was converned.We do not accept these contentionsEven though the tenure of the Appellants service with the Ruler of the Wadhwan State was initially during the pleasure of the Ruler, the Ruler put a fetter upon his powers to dispense with the services of the Appellant when the Dhara No. 29 of St. 2004 was enacted by him. This obligation of the Ruler passed to the Saurashtra State on the making over of the administration of the Wadhwan State to the Raj Pramukh on the 15the March 1948 and the Saurashtra State also could not dispense with the services or compulsorily retire the Appellant before he attained 60 years of ageIf the Saurashtra State chose to compulsorily retire the Appellant it could only do so on payment of reasonable compensation and in arriving at the figureof reasonable compensation the Saurashtra State would have to take into consideration the tenure of the Appellants service with the Wadhwan State which entitled him to continue in such service until he attained his age of 60 years. This was one of the circumstances to be taken into account when determining the amount of reasonable compensation to be awarded to him. We have been taken through the portion of the Trial courts judgment which deals with the amount of compensation and we are of the opinion that the amount of compensation awarded by the Trial Court to the Appellant was justified under the circumstances. This ground also does not avail the Respondent16. The amount of pension, viz, Rs.0 per month which was granted by the Saurashtra State to the Appellant was not ther of the suit. The amount of compensation clamed by the Appellant was over and above the said amount of pension and the Trial Court adjudicated upon such compensation. The Appellants rights in regard to the pension were not at all affected by the amount of compensation awarded by the Trial Court to him. The Appellant will therefore continue to receive the amount of pension in addition to whatever compensation has been awarded to him, by the Trial Court.
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New India Ass. Co. Ltd Vs. Genus Power Inf. Ltd | and consequently, refer the dispute to arbitration. Alternatively, where the Chief Justice/his designate is satisfied prima facie that the discharge voucher was not issued voluntarily and the claimant was under some compulsion or coercion, and that the matter deserved detailed consideration, he may instead of deciding the issue himself, refer the matter to the Arbitral Tribunal with a specific direction that the said question should be decided in the first instance." 7. In the decision rendered in Union of India vs. Master Construction Co. [(2011) 12 SCC 349] this court observed as under: "18. In our opinion, there is no rule of the absolute kind. In a case where the claimant contends that a discharge voucher or no-claim certificate has been obtained by fraud, coercion, duress or undue influence and the other side contests the correctness thereof, the Chief Justice/his designate must look into this aspect to find out at least, prima facie, whether or not the [pic]dispute is bona fide and genuine. Where the dispute raised by the claimant with regard to validity of the discharge voucher or no-claim certificate or settlement agreement, prima facie, appears to be lacking in credibility, there may not be a necessity to refer the dispute for arbitration at all. 19. It cannot be overlooked that the cost of arbitration is quite huge-most of the time, it runs into six and seven figures. It may not be proper to burden a party, who contends that the dispute is not arbitrable on account of discharge of contract, with huge cost of arbitration merely because plea of fraud, coercion, duress or undue influence has been taken by the claimant. A bald plea of fraud, coercion, duress or undue influence is not enough and the party who sets up such a plea must prima facie establish the same by placing material before the Chief Justice/his designate. If the Chief Justice/his designate finds some merit in the allegation of fraud, coercion, duress or undue influence, he may decide the same or leave it to be decided by the Arbitral Tribunal. On the other hand, if such plea is found to be an afterthought, make-believe or lacking in credibility, the matter must be set at rest then and there. 22. The above certificates leave no manner of doubt that upon receipt of the payment, there has been full and final settlement of the contractors claim under the contract. That the payment of final bill was made to the contractor on 19-6-2000 is not in dispute. After receipt of the payment on 19-6-2000, no grievance was raised or lodged by the contractor immediately. The authority concerned, thereafter, released the bank guarantee in the sum of Rs 21,00,000 on 12-7-2000. It was then that on that day itself, the contractor lodged further claims."[pic] 8. It is therefore clear that a bald plea of fraud, coercion, duress or undue influence is not enough and the party who sets up a plea, must prime facie establish the same by placing material before the Chief Justice/his designate. Viewed thus, the relevant averments in the petition filed by the respondent need to be considered, which were to the following effect:- "(g) That the said surveyor, in connivance with the Respondent Company, in order to make the Respondent Company escape its full liability of compensating the Petitioner of such huge loss, acted in a biased manner, adopted coercion undue influence and duress methods of assessing the loss and forced the Petitioner to sign certain documents including the Claim Form. The Respondent Company also denied the just claim of the Petitioner by their acts of omission and commission and by exercising coercion and undue influence and made the Petitioner Company sign certain documents, including a pre-prepared discharge voucher for the said amount in advance, which the Petitioner Company were forced to do so in the period of extreme financial difficulty which prevailed during the said period. As stated aforesaid, the Petitioner Company was forced to sign several documents including a letter accepting the loss amounting to Rs.6,09,55,406/- and settle the claim of Rs.5,96,08,179/- as against the actual loss amount of Rs.28,79,08,116/- against the interest of the petitioner company. The said letter and the aforesaid pre-prepared discharge voucher stated that the petitioner had accepted the claim amount in full and final settlement and thus, forced the petitioner company to unilateral acceptance the same. The petitioner company was forced to sign the said document under duress and coercion by the Respondent Company. The Respondent Company further threatened the petitioner Company to accept the said amount in full and final or the Respondent Company will not pay any amount toward the fire policy. It was under such compelling circumstances that the petitioner company was forced and under duress was made to sign the acceptance letter." 9. In our considered view, the plea raised by the respondent is bereft of any details and particulars, and cannot be anything but a bald assertion. Given the fact that there was no protest or demur raised around the time or soon after the letter of subrogation was signed, that the notice dated 31.03.2011 itself was nearly after three weeks and that the financial condition of the respondent was not so precarious that it was left with no alternative but to accept the terms as suggested, we are of the firm view that the discharge in the present case and signing of letter of subrogation were not because of exercise of any undue influence. Such discharge and signing of letter of subrogation was voluntary and free from any coercion or undue influence. In the circumstances, we hold that upon execution of the letter of subrogation, there was full and final settlement of the claim. Since our answer to the question, whether there was really accord and satisfaction, is in the affirmative, in our view no arbitrable dispute existed so as to exercise power under section 11 of the Act. The High Court was not therefore justified in exercising power under Section 11 of the Act. | 1[ds]9. In our considered view, the plea raised by the respondent is bereft of any details and particulars, and cannot be anything but a bald assertion. Given the fact that there was no protest or demur raised around the time or soon after the letter of subrogation was signed, that the notice dated 31.03.2011 itself was nearly after three weeks and that the financial condition of the respondent was not so precarious that it was left with no alternative but to accept the terms as suggested, we are of the firm view that the discharge in the present case and signing of letter of subrogation were not because of exercise of any undue influence. Such discharge and signing of letter of subrogation was voluntary and free from any coercion or undue influence. In the circumstances, we hold that upon execution of the letter of subrogation, there was full and final settlement of the claim. Since our answer to the question, whether there was really accord and satisfaction, is in the affirmative, in our view no arbitrable dispute existed so as to exercise power under section 11 of the Act. The High Court was not therefore justified in exercising power under Section 11 of the Act. | 1 | 2,686 | 226 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
and consequently, refer the dispute to arbitration. Alternatively, where the Chief Justice/his designate is satisfied prima facie that the discharge voucher was not issued voluntarily and the claimant was under some compulsion or coercion, and that the matter deserved detailed consideration, he may instead of deciding the issue himself, refer the matter to the Arbitral Tribunal with a specific direction that the said question should be decided in the first instance." 7. In the decision rendered in Union of India vs. Master Construction Co. [(2011) 12 SCC 349] this court observed as under: "18. In our opinion, there is no rule of the absolute kind. In a case where the claimant contends that a discharge voucher or no-claim certificate has been obtained by fraud, coercion, duress or undue influence and the other side contests the correctness thereof, the Chief Justice/his designate must look into this aspect to find out at least, prima facie, whether or not the [pic]dispute is bona fide and genuine. Where the dispute raised by the claimant with regard to validity of the discharge voucher or no-claim certificate or settlement agreement, prima facie, appears to be lacking in credibility, there may not be a necessity to refer the dispute for arbitration at all. 19. It cannot be overlooked that the cost of arbitration is quite huge-most of the time, it runs into six and seven figures. It may not be proper to burden a party, who contends that the dispute is not arbitrable on account of discharge of contract, with huge cost of arbitration merely because plea of fraud, coercion, duress or undue influence has been taken by the claimant. A bald plea of fraud, coercion, duress or undue influence is not enough and the party who sets up such a plea must prima facie establish the same by placing material before the Chief Justice/his designate. If the Chief Justice/his designate finds some merit in the allegation of fraud, coercion, duress or undue influence, he may decide the same or leave it to be decided by the Arbitral Tribunal. On the other hand, if such plea is found to be an afterthought, make-believe or lacking in credibility, the matter must be set at rest then and there. 22. The above certificates leave no manner of doubt that upon receipt of the payment, there has been full and final settlement of the contractors claim under the contract. That the payment of final bill was made to the contractor on 19-6-2000 is not in dispute. After receipt of the payment on 19-6-2000, no grievance was raised or lodged by the contractor immediately. The authority concerned, thereafter, released the bank guarantee in the sum of Rs 21,00,000 on 12-7-2000. It was then that on that day itself, the contractor lodged further claims."[pic] 8. It is therefore clear that a bald plea of fraud, coercion, duress or undue influence is not enough and the party who sets up a plea, must prime facie establish the same by placing material before the Chief Justice/his designate. Viewed thus, the relevant averments in the petition filed by the respondent need to be considered, which were to the following effect:- "(g) That the said surveyor, in connivance with the Respondent Company, in order to make the Respondent Company escape its full liability of compensating the Petitioner of such huge loss, acted in a biased manner, adopted coercion undue influence and duress methods of assessing the loss and forced the Petitioner to sign certain documents including the Claim Form. The Respondent Company also denied the just claim of the Petitioner by their acts of omission and commission and by exercising coercion and undue influence and made the Petitioner Company sign certain documents, including a pre-prepared discharge voucher for the said amount in advance, which the Petitioner Company were forced to do so in the period of extreme financial difficulty which prevailed during the said period. As stated aforesaid, the Petitioner Company was forced to sign several documents including a letter accepting the loss amounting to Rs.6,09,55,406/- and settle the claim of Rs.5,96,08,179/- as against the actual loss amount of Rs.28,79,08,116/- against the interest of the petitioner company. The said letter and the aforesaid pre-prepared discharge voucher stated that the petitioner had accepted the claim amount in full and final settlement and thus, forced the petitioner company to unilateral acceptance the same. The petitioner company was forced to sign the said document under duress and coercion by the Respondent Company. The Respondent Company further threatened the petitioner Company to accept the said amount in full and final or the Respondent Company will not pay any amount toward the fire policy. It was under such compelling circumstances that the petitioner company was forced and under duress was made to sign the acceptance letter." 9. In our considered view, the plea raised by the respondent is bereft of any details and particulars, and cannot be anything but a bald assertion. Given the fact that there was no protest or demur raised around the time or soon after the letter of subrogation was signed, that the notice dated 31.03.2011 itself was nearly after three weeks and that the financial condition of the respondent was not so precarious that it was left with no alternative but to accept the terms as suggested, we are of the firm view that the discharge in the present case and signing of letter of subrogation were not because of exercise of any undue influence. Such discharge and signing of letter of subrogation was voluntary and free from any coercion or undue influence. In the circumstances, we hold that upon execution of the letter of subrogation, there was full and final settlement of the claim. Since our answer to the question, whether there was really accord and satisfaction, is in the affirmative, in our view no arbitrable dispute existed so as to exercise power under section 11 of the Act. The High Court was not therefore justified in exercising power under Section 11 of the Act.
### Response:
1
### Explanation:
9. In our considered view, the plea raised by the respondent is bereft of any details and particulars, and cannot be anything but a bald assertion. Given the fact that there was no protest or demur raised around the time or soon after the letter of subrogation was signed, that the notice dated 31.03.2011 itself was nearly after three weeks and that the financial condition of the respondent was not so precarious that it was left with no alternative but to accept the terms as suggested, we are of the firm view that the discharge in the present case and signing of letter of subrogation were not because of exercise of any undue influence. Such discharge and signing of letter of subrogation was voluntary and free from any coercion or undue influence. In the circumstances, we hold that upon execution of the letter of subrogation, there was full and final settlement of the claim. Since our answer to the question, whether there was really accord and satisfaction, is in the affirmative, in our view no arbitrable dispute existed so as to exercise power under section 11 of the Act. The High Court was not therefore justified in exercising power under Section 11 of the Act.
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Praveenbhai S Khambhayata Vs. United India Insurance Co. Ltd | from 13.09.2001 to 12.09.2002 was produced before this Court. The accident was on 20.05.2002 during which period the vehicle No. GJ-3U-5391 had a valid insurance policy. 11. The point falling for consideration is that even if the vehicle No. GJ-3U-5391 had a valid insurance policy, whether the first respondent-insurance company is liable to indemnify the owner of the vehicle for death of a person who was employed by him in another vehicle. Insofar as vehicle dumper No.GJ-3U-5391, admittedly deceased-Ramesh Lalmani Yadav was not an employee and he was only a third party. Onbehalf of the appellant, an argument was advanced that since both the vehicles were insured with the same insurance company viz., United India Insurance Company and since Section 147 of the Motor Vehicles Act is a beneficial legislation, the insurance company ought to have been held liable to indemnify the insured. As contended by the appellant, both the vehicles were insured with the respondent-insurance company and both the vehicles are one and the same. Considering the facts of the case, both the vehicles were parked in the same space and it can be safely stated that the deceased cleaner was filling the water in the radiator of vehicle no.GJ-3U-5391 only on the direction of the employer and thus the cleaner was working in the course of employment. The High Court rejected the claim of the appellant on the ground that the insurance policy of vehicle No. GJ-3V-7785 was not produced but now since the appellant has produced the insurance policy which covers the vehicle involved in the accident which provides to indemnify the owner of the vehicle in case of any accident caused to the workman limited to the extent of liability under Workmens Compensation Act. 12. Both the vehicles were insured with the first respondent-insurance company and the owner being one and the same and since the deceased being the cleaner and the claimants hailing from the lowest strata of society, in our considered view, in exercise of our extra-ordinary jurisdiction under Article 142 of the Constitution of India, it is appropriate to direct the first respondent-insurance company to indemnify the appellant for the death of deceased. 13. In a situation of this nature for doing complete justice between the parties, this Court has always exercised the jurisdiction under Article 142 of the Constitution of India. In Oriental Insurance Company Ltd. vs. Brij Mohan And Ors. [(2007) 7 SCC 56] , this Court has held as under:- 13. However, Respondent 1 is a poor labourer. He had suffered grievous injuries. He had become disabled to a great extent. The amount of compensation awarded in his favour appears to be on a lower side. In the aforementioned situation, although we reject the other contentions of Ms Indu Malhotra, we are inclined to exercise our extraordinary jurisdiction under Article 142 of the Constitution of India so as to direct that the award may be satisfied by the appellant but it would be entitled to realize the same from the owner of the tractor and the trolley wherefor it would not be necessary for it to initiate any separate proceedings for recovery of the amount as provided for under the Motor Vehicles Act. 14. It is well settled that in a situation of this nature this Court in exercise of its jurisdiction under Article 142 of the Constitution of India read with Article 136 thereof can issue suit directions for doing complete justice to the parties. 14. In Deddappa & Ors. vs. National Insurance Company Ltd. [(2008) 2 SCC 595] , it was observed as under:- 26. However, as the appellant hails from the lowest strata of society, we are of the opinion that in a case of this nature, we should, in exercise of our extraordinary jurisdiction under Article 142 of the Constitution of India, direct Respondent 1 to pay the amount of claim to the appellants herein and recover the same from the owner of the vehicle viz. Respondent 2, particularly in view of the fact that no appeal was preferred by him. We direct accordingly. 15. Labour Court awarded compensation of Rs.6,42,921/- along with 10% penalty and 6% interest per annum. As per Section 4-A (3)(a) of the Workmens Compensation Act, where any employer commits default in paying the compensation due under the Act within one month from the date it fell due, the Commissioner shall direct the employer to pay simple interest thereon at the rate of 12% per annum or at such higher rate not exceeding maximum of the lending rates of any scheduled bank as may be specified by the Central Government. As per Section 4-A (3)(b), in addition to the amount of arrears and the interest thereon, the Commissioner shall direct the employer to pay further sum not exceeding 50% of such amount by way of penalty. The legal representatives of the deceased employee are thus entitled to the statutory interest at the rate of 12% and penalty not exceeding 50% of the amount of compensation. The Commissioner for Workmens Compensation has awarded only 6% interest and 10% penalty as against the statutory entitlement of the dependents of the deceased employee in terms of Section 4-A(3) of the Act. Having regard to the passage of time and in the interest of justice, in our considered view, statutory rate of penalty i.e. 15% is to be ordered in addition to the statutory interest payable at the rate of 12% per annum. 16. The appellant has deposited Rs.3,25,365/- i.e. the principal amount with the Labour Court/Commissioner for Workmens Compensation, Rajkot on 18.2.2014. The matter was listed before the Supreme Court Lok Adalat on 6.12.2014 wherein the appellant was directed to deposit the balance amount. The 1st respondent-insurance company shall deposit the balance compensation being 15% penalty and the interest at the rate of 12% after one month from the date when the compensation amount fell due and also 15% penalty with the Labour Court/Commissioner for Workmens Compensation within a period of six weeks from today. | 1[ds]8. It is an admitted fact that the deceased was employed as a cleaner in vehicle No. GJ-3V-7785 and on perusal of the statement of Ramlallu D. Patel, the driver of the above-said vehicle, it emerged that the deceased was actually filling water in the radiator of the another dumper bearing No. GJ-3U-5391 and met with an accident and died due to the injuries sustained by him. The same is substantiated by the panchnama of the scene of the accident. From the written statement filed by fifth respondent - Viraj Krishna Techtonics Pvt. Ltd. Vijayrath, it is apparent that the employer has admitted that the death of Ramesh Lalmani Yadav was caused while he was filling water in the radiator of the vehicle bearing No. GJ-3U-5391 owned by him. Taking into consideration the facts of the case, it is evident that vehicle GJ-3V-7785 was not involved in the accidentInsofar as vehicle dumper No.GJ-3U-5391, admittedly deceased-Ramesh Lalmani Yadav was not an employee and he was only a third party. Onbehalf of the appellant, an argument was advanced that since both the vehicles were insured with the same insurance company viz., United India Insurance Company and since Section 147 of the Motor Vehicles Act is a beneficial legislation, the insurance company ought to have been held liable to indemnify the insured. As contended by the appellant, both the vehicles were insured with the respondent-insurance company and both the vehicles are one and the same. Considering the facts of the case, both the vehicles were parked in the same space and it can be safely stated that the deceased cleaner was filling the water in the radiator of vehicle no.GJ-3U-5391 only on the direction of the employer and thus the cleaner was working in the course of employment. The High Court rejected the claim of the appellant on the ground that the insurance policy of vehicle No. GJ-3V-7785 was not produced but now since the appellant has produced the insurance policy which covers the vehicle involved in the accident which provides to indemnify the owner of the vehicle in case of any accident caused to the workman limited to the extent of liability under Workmens Compensation Act12. Both the vehicles were insured with the first respondent-insurance company and the owner being one and the same and since the deceased being the cleaner and the claimants hailing from the lowest strata of society, in our considered view, in exercise of our extra-ordinary jurisdiction under Article 142 of the Constitution of India, it is appropriate to direct the first respondent-insurance company to indemnify the appellant for the death of deceased14. It is well settled that in a situation of this nature this Court in exercise of its jurisdiction under Article 142 of the Constitution of India read with Article 136 thereof can issue suit directions for doing complete justice to the parties15. Labour Court awarded compensation of Rs.6,42,921/- along with 10% penalty and 6% interest per annum. As per Section 4-A (3)(a) of the Workmens Compensation Act, where any employer commits default in paying the compensation due under the Act within one month from the date it fell due, the Commissioner shall direct the employer to pay simple interest thereon at the rate of 12% per annum or at such higher rate not exceeding maximum of the lending rates of any scheduled bank as may be specified by the Central Government. As per Section 4-A (3)(b), in addition to the amount of arrears and the interest thereon, the Commissioner shall direct the employer to pay further sum not exceeding 50% of such amount by way of penalty. The legal representatives of the deceased employee are thus entitled to the statutory interest at the rate of 12% and penalty not exceeding 50% of the amount of compensation. The Commissioner for Workmens Compensation has awarded only 6% interest and 10% penalty as against the statutory entitlement of the dependents of the deceased employee in terms of Section 4-A(3) of the Act. Having regard to the passage of time and in the interest of justice, in our considered view, statutory rate of penalty i.e. 15% is to be ordered in addition to the statutory interest payable at the rate of 12% per annum16. The appellant has deposited Rs.3,25,365/- i.e. the principal amount with the Labour Court/Commissioner for Workmens Compensation, Rajkot on 18.2.2014. The matter was listed before the Supreme Court Lok Adalat on 6.12.2014 wherein the appellant was directed to deposit the balance amount. The 1st respondent-insurance company shall deposit the balance compensation being 15% penalty and the interest at the rate of 12% after one month from the date when the compensation amount fell due and also 15% penalty with the Labour Court/Commissioner for Workmens Compensation within a period of six weeks from today. | 1 | 2,277 | 874 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
from 13.09.2001 to 12.09.2002 was produced before this Court. The accident was on 20.05.2002 during which period the vehicle No. GJ-3U-5391 had a valid insurance policy. 11. The point falling for consideration is that even if the vehicle No. GJ-3U-5391 had a valid insurance policy, whether the first respondent-insurance company is liable to indemnify the owner of the vehicle for death of a person who was employed by him in another vehicle. Insofar as vehicle dumper No.GJ-3U-5391, admittedly deceased-Ramesh Lalmani Yadav was not an employee and he was only a third party. Onbehalf of the appellant, an argument was advanced that since both the vehicles were insured with the same insurance company viz., United India Insurance Company and since Section 147 of the Motor Vehicles Act is a beneficial legislation, the insurance company ought to have been held liable to indemnify the insured. As contended by the appellant, both the vehicles were insured with the respondent-insurance company and both the vehicles are one and the same. Considering the facts of the case, both the vehicles were parked in the same space and it can be safely stated that the deceased cleaner was filling the water in the radiator of vehicle no.GJ-3U-5391 only on the direction of the employer and thus the cleaner was working in the course of employment. The High Court rejected the claim of the appellant on the ground that the insurance policy of vehicle No. GJ-3V-7785 was not produced but now since the appellant has produced the insurance policy which covers the vehicle involved in the accident which provides to indemnify the owner of the vehicle in case of any accident caused to the workman limited to the extent of liability under Workmens Compensation Act. 12. Both the vehicles were insured with the first respondent-insurance company and the owner being one and the same and since the deceased being the cleaner and the claimants hailing from the lowest strata of society, in our considered view, in exercise of our extra-ordinary jurisdiction under Article 142 of the Constitution of India, it is appropriate to direct the first respondent-insurance company to indemnify the appellant for the death of deceased. 13. In a situation of this nature for doing complete justice between the parties, this Court has always exercised the jurisdiction under Article 142 of the Constitution of India. In Oriental Insurance Company Ltd. vs. Brij Mohan And Ors. [(2007) 7 SCC 56] , this Court has held as under:- 13. However, Respondent 1 is a poor labourer. He had suffered grievous injuries. He had become disabled to a great extent. The amount of compensation awarded in his favour appears to be on a lower side. In the aforementioned situation, although we reject the other contentions of Ms Indu Malhotra, we are inclined to exercise our extraordinary jurisdiction under Article 142 of the Constitution of India so as to direct that the award may be satisfied by the appellant but it would be entitled to realize the same from the owner of the tractor and the trolley wherefor it would not be necessary for it to initiate any separate proceedings for recovery of the amount as provided for under the Motor Vehicles Act. 14. It is well settled that in a situation of this nature this Court in exercise of its jurisdiction under Article 142 of the Constitution of India read with Article 136 thereof can issue suit directions for doing complete justice to the parties. 14. In Deddappa & Ors. vs. National Insurance Company Ltd. [(2008) 2 SCC 595] , it was observed as under:- 26. However, as the appellant hails from the lowest strata of society, we are of the opinion that in a case of this nature, we should, in exercise of our extraordinary jurisdiction under Article 142 of the Constitution of India, direct Respondent 1 to pay the amount of claim to the appellants herein and recover the same from the owner of the vehicle viz. Respondent 2, particularly in view of the fact that no appeal was preferred by him. We direct accordingly. 15. Labour Court awarded compensation of Rs.6,42,921/- along with 10% penalty and 6% interest per annum. As per Section 4-A (3)(a) of the Workmens Compensation Act, where any employer commits default in paying the compensation due under the Act within one month from the date it fell due, the Commissioner shall direct the employer to pay simple interest thereon at the rate of 12% per annum or at such higher rate not exceeding maximum of the lending rates of any scheduled bank as may be specified by the Central Government. As per Section 4-A (3)(b), in addition to the amount of arrears and the interest thereon, the Commissioner shall direct the employer to pay further sum not exceeding 50% of such amount by way of penalty. The legal representatives of the deceased employee are thus entitled to the statutory interest at the rate of 12% and penalty not exceeding 50% of the amount of compensation. The Commissioner for Workmens Compensation has awarded only 6% interest and 10% penalty as against the statutory entitlement of the dependents of the deceased employee in terms of Section 4-A(3) of the Act. Having regard to the passage of time and in the interest of justice, in our considered view, statutory rate of penalty i.e. 15% is to be ordered in addition to the statutory interest payable at the rate of 12% per annum. 16. The appellant has deposited Rs.3,25,365/- i.e. the principal amount with the Labour Court/Commissioner for Workmens Compensation, Rajkot on 18.2.2014. The matter was listed before the Supreme Court Lok Adalat on 6.12.2014 wherein the appellant was directed to deposit the balance amount. The 1st respondent-insurance company shall deposit the balance compensation being 15% penalty and the interest at the rate of 12% after one month from the date when the compensation amount fell due and also 15% penalty with the Labour Court/Commissioner for Workmens Compensation within a period of six weeks from today.
### Response:
1
### Explanation:
8. It is an admitted fact that the deceased was employed as a cleaner in vehicle No. GJ-3V-7785 and on perusal of the statement of Ramlallu D. Patel, the driver of the above-said vehicle, it emerged that the deceased was actually filling water in the radiator of the another dumper bearing No. GJ-3U-5391 and met with an accident and died due to the injuries sustained by him. The same is substantiated by the panchnama of the scene of the accident. From the written statement filed by fifth respondent - Viraj Krishna Techtonics Pvt. Ltd. Vijayrath, it is apparent that the employer has admitted that the death of Ramesh Lalmani Yadav was caused while he was filling water in the radiator of the vehicle bearing No. GJ-3U-5391 owned by him. Taking into consideration the facts of the case, it is evident that vehicle GJ-3V-7785 was not involved in the accidentInsofar as vehicle dumper No.GJ-3U-5391, admittedly deceased-Ramesh Lalmani Yadav was not an employee and he was only a third party. Onbehalf of the appellant, an argument was advanced that since both the vehicles were insured with the same insurance company viz., United India Insurance Company and since Section 147 of the Motor Vehicles Act is a beneficial legislation, the insurance company ought to have been held liable to indemnify the insured. As contended by the appellant, both the vehicles were insured with the respondent-insurance company and both the vehicles are one and the same. Considering the facts of the case, both the vehicles were parked in the same space and it can be safely stated that the deceased cleaner was filling the water in the radiator of vehicle no.GJ-3U-5391 only on the direction of the employer and thus the cleaner was working in the course of employment. The High Court rejected the claim of the appellant on the ground that the insurance policy of vehicle No. GJ-3V-7785 was not produced but now since the appellant has produced the insurance policy which covers the vehicle involved in the accident which provides to indemnify the owner of the vehicle in case of any accident caused to the workman limited to the extent of liability under Workmens Compensation Act12. Both the vehicles were insured with the first respondent-insurance company and the owner being one and the same and since the deceased being the cleaner and the claimants hailing from the lowest strata of society, in our considered view, in exercise of our extra-ordinary jurisdiction under Article 142 of the Constitution of India, it is appropriate to direct the first respondent-insurance company to indemnify the appellant for the death of deceased14. It is well settled that in a situation of this nature this Court in exercise of its jurisdiction under Article 142 of the Constitution of India read with Article 136 thereof can issue suit directions for doing complete justice to the parties15. Labour Court awarded compensation of Rs.6,42,921/- along with 10% penalty and 6% interest per annum. As per Section 4-A (3)(a) of the Workmens Compensation Act, where any employer commits default in paying the compensation due under the Act within one month from the date it fell due, the Commissioner shall direct the employer to pay simple interest thereon at the rate of 12% per annum or at such higher rate not exceeding maximum of the lending rates of any scheduled bank as may be specified by the Central Government. As per Section 4-A (3)(b), in addition to the amount of arrears and the interest thereon, the Commissioner shall direct the employer to pay further sum not exceeding 50% of such amount by way of penalty. The legal representatives of the deceased employee are thus entitled to the statutory interest at the rate of 12% and penalty not exceeding 50% of the amount of compensation. The Commissioner for Workmens Compensation has awarded only 6% interest and 10% penalty as against the statutory entitlement of the dependents of the deceased employee in terms of Section 4-A(3) of the Act. Having regard to the passage of time and in the interest of justice, in our considered view, statutory rate of penalty i.e. 15% is to be ordered in addition to the statutory interest payable at the rate of 12% per annum16. The appellant has deposited Rs.3,25,365/- i.e. the principal amount with the Labour Court/Commissioner for Workmens Compensation, Rajkot on 18.2.2014. The matter was listed before the Supreme Court Lok Adalat on 6.12.2014 wherein the appellant was directed to deposit the balance amount. The 1st respondent-insurance company shall deposit the balance compensation being 15% penalty and the interest at the rate of 12% after one month from the date when the compensation amount fell due and also 15% penalty with the Labour Court/Commissioner for Workmens Compensation within a period of six weeks from today.
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Ramsarup Industries Limited & Others Vs. Tata Capital Financial Services Limited | Sick Industrial Companies (Special Provisions) Act, 1985 without permission of the BIFR.The facts in the case in hand are completely different. In the present case the Arbitration proceedings are pending. As observed by the Division Bench in the order dated 17 February 2014 the parties are sufficiently protected in view of the pending arbitration proceedings. Further, as noted above and significantly we cannot be unmindful that there is a consent order dated 19 June 2012 in pursuance of which a private receiver was appointed to sell the mortgaged properties. We also cannot overlook the further orders dated 13 February 2013 (Supra) of the learned Single Judge whereby the very issue of the pendency of the BIFR proceedings came to be adjudicated which interse between the parties, remains undisturbed till date . Things do not stop at this as by further orders dated 17 February 2014 of the Division Bench (supra) as confirmed by the Apex Court by the order dated 2 May 2014 (supra), the sale stands confirmed in favour of the Respondent. The learned Single Judge is right in his conclusion that the cumulative effect of these orders is that there is no escape from the fact that the Appellants cannot reopen the issues and obstruct the execution of the conveyance which is a only ministerial act to be undertaken by raising a sole plea on the decision of the learned Single Judge in the Armada (Singapore) Pte Ltd. (supra). We are of the clear view that the issue as regards BIFR proceedings undoubtedly stood concluded between the parties (the respondent and the guarantors) in view of the decision of the learned Single Judge dated 13 February 2013 (supra) in the such circumstances of the case in hand.19. In our opinion the reliance of the Appellants on the decision of Delhi High Court in Ankur Drugs and Pharma Ltd. (supra) would also not assist the Appellants. This was the case in which the Appellant was in liquidation as also a reference under the SICA was pending and in view of this position the Appellant had prayed for stay of the arbitration proceedings as also a plea was taken that the arbitration proceedings cannot taken against the guarantors.. The learned Arbitrator had rejected the objection of the Appellants. In this context the learned Single Judge of Delhi High Court considering the position in law, stayed the arbitral proceedings till such time a leave of the BIFR is obtained. As can be seen from these facts Ankur Drugs and Pharma Ltd.(supra) was not a case where there was any consent order between the parties. It was also not a case where the issue on the plea of pendency of BIFR proceedings in the context of a consent order of sale of the mortgaged properties was adjudicated as in the present case. It was also not a case where under the orders of the Division Bench in the light of the consent terms, the sale came to be confirmed in favour of the present respondent. Admittedly the order of the Division Bench dated 17 February 2014 was confirmed by the Apex Court. In view of this clear position we do not agree to the reliance by the Appellants on the decision of the learned Single Judge of the Delhi High Court in Ankur Drugs and Pharma Ltd. (Supra)20. There is no bar that the financial institution and the guarantor cannot enter into a compromise in a Section 9 application. The parties filed consent terms and had proceeded accordingly. The sale has been confirmed upto the Supreme Court. Therefore, the further consequential steps and proceedings in the present case, cannot be halted, at the instance of the appellants, who have themselves filed the consent terms and the parties having proceeded accordingly. There was nothing wrong when the consent terms were recorded and modified further by agreement. The rights have been crystalised, at least between the Respondent and the guarantor (whose property is in question) much before the filing of BIFR application by Respondent No.1. The impugned order is in consequent to it.21. We are considering the scope and purpose of Section 9 of the Arbitration Act, 1996, in the peculiar present fact and circumstances. So also the scope of inquiry under section 22 is somewhat different as the consent terms were between Respondent/financial institution and the guarantor, prior to the invocation of the BIFR proceedings by the Respondent-Industry. A statement is also made by the learned Counsel for the Appellants that the property involved in the present proceedings is not the property owned by the company/undertaking but of the guarantor only and that the same is not subject matter of the proceedings before the BIFR. Thus the sale of property and the consequential ministerial act of its execution of conveyance in the background in the facts of the case cannot be halted at the instance of Appellant even though it arose out of Section 9 proceedings, pending arbitration before the Arbitral Tribunal and/or even the BIFR proceedings in question. All are the distinct and separable proceedings.22. The judgments cited on law on the scope of Section 22 of the SICA need no discussion as the law is settled. As noted above the same was subject matter of order dated 13 February 2013 and as recorded by the learned Single Judge has admittedly attained finality. We have to deal with the case in hand on the facts as they stand which we have recorded above. We are concerned with the implementation/execution inter-alia application based upon the consent terms between financial institution and the guarantor. The industrial/companys (Respondents) arbitration is pending before the Arbitral Tribunal. There is no executable order passed under Section 9 application against the company and/or its property. There is no coercive steps taken in this proceeding against the Respondent Industry/Company or its property pending BIFR proceedings. Therefore, in view of the consent terms finality so attained, we see no reason to interfere with the order so passed by the learned Judge. | 0[ds]17. Admittedly, the properties in question belong to Appellant Nos.3 to 5 who are the guarantors and these properties are mortgaged properties and not owned by theThere is no dispute that the sale of these properties was agreed between the parties in view of the consent order dated 19 June 2012 passed in Arbitration Petition No.707 of 2012. The Appellants in Chamber Summons No.60 of 2013 (supra) had attempted to nullify the effect of the consent order by raising a plea that subsequent to the consent order dated 19 June 2012 a reference as filed by Appellantwas registered with the BIFR on 21 November 2012 and thus, in view of the provisions of Section 22(1) of SICA, further proceedings to sell the said properties ought to be stayed. These prayers of the Appellants were rejected by a detailed order of the learned Single Judge dated 13 February 2013, which was passed taking into consideration the principles of law on the issue as laid down by the Apex Court, including the conduct of the parties. As noted above, the private receiver proceeded to sell the properties, the Respondents offer for an amount of Rs.4 crore was accepted. By order dated 17 February 2014 of the Division Bench (supra), the sale is confirmed in favour of the Respondent. Significantly this order of the Division Bench was confirmed by the Apex Court by its order dated 2 May 2014 in SLP Civil no.9997 of 2014. If this be the position we are unable to appreciate as to how only on the decision in the case of Armada (Singapore) Pte Ltd. (supra) the Appellants could approach the learned Single Judge seeking a stay on the execution of the conveyance.18. Upon considering the decision of the learned Single Judge in Armada (Singapore) Pte Ltd. (supra), we are in complete agreement with the observations of the learned Single Judge that this decision in no manner would assist the Appellants. In Armada (Singapore) Pte Ltd. (supra) a reference under Section 22 of the SICA was pending against the company against whom a foreign award was passed by the learned Arbitrator who came to be appointed under the English Arbitration Act,1996. In the facts of the case and before the foreign award could be held to be enforceable as per the provisions of the Arbitration Act, it was held that there was no bar under Section 22 of the SICA to declare that the foreign award rendered in favour of the petitioner therein being enforceable as decree of the Court. In this context, the learned Single Judge made the following observations in paragraphs 37 and 42:37. As and when any application for execution of the said award as a decree is pressed by the petitioner and if any coercive orders are proposed to be passed which are prohibited under Section 22 of SICA, the executing Court can consider the effect thereof. Be that as it may, the petitioner has already applied for appropriate direction before the BIFR and thus I am inclined to accept the submission of the learned senior counsel for the respondent that no coercive orders can be passed by this Court for execution of the said foreign award as a decree of this Court at this stage.42. This Court in the case of Pol India Projects Limited (supra) has also adverted to the judgment of the Delhi High Court in the case of Penn Racquet Sports Vs. Mayor International Limited, reported in ILR (2011) Delhi 181 has held that the award should be contrary to fundamental policy of Indian law for the Court of India for recognition and enforcement of the foreign award. The judgment in the case of Shri Lal Mahal Ltd. (supra) and the judgment of this Court in the case of Pol India Projects Limited (supra) squarely apply to the facts of this case. In my view, scope of objection under Section 48 to the enforcement of the foreign award is very limited. None of the objections raised by the Respondent fall under any of the grounds permissible under Section 48 of the Arbitration Act. In my view, the respondent has not furnished any proof before this Court as to why the enforcement of the foreign award may be refused. Both the foreign awards are thus enforceable under Part II of the Arbitration Act and are binding for all the purposes on the parties under Section 34 of the Arbitration Act. I am therefore of the view that the foreign awards are already stamped as decrees. However, in view of the pendency of the proceedings before the BIFR, the petitioner would not be entitled to take steps in execution of the award and seek any relief which would be in violation of Section 22 of Sick Industrial Companies (Special Provisions) Act, 1985 without permission of the BIFR.The facts in the case in hand are completely different. In the present case the Arbitration proceedings are pending. As observed by the Division Bench in the order dated 17 February 2014 the parties are sufficiently protected in view of the pending arbitration proceedings. Further, as noted above and significantly we cannot be unmindful that there is a consent order dated 19 June 2012 in pursuance of which a private receiver was appointed to sell the mortgaged properties. We also cannot overlook the further orders dated 13 February 2013 (Supra) of the learned Single Judge whereby the very issue of the pendency of the BIFR proceedings came to be adjudicated which interse between the parties, remains undisturbed till date . Things do not stop at this as by further orders dated 17 February 2014 of the Division Bench (supra) as confirmed by the Apex Court by the order dated 2 May 2014 (supra), the sale stands confirmed in favour of the Respondent. The learned Single Judge is right in his conclusion that the cumulative effect of these orders is that there is no escape from the fact that the Appellants cannot reopen the issues and obstruct the execution of the conveyance which is a only ministerial act to be undertaken by raising a sole plea on the decision of the learned Single Judge in the Armada (Singapore) Pte Ltd. (supra). We are of the clear view that the issue as regards BIFR proceedings undoubtedly stood concluded between the parties (the respondent and the guarantors) in view of the decision of the learned Single Judge dated 13 February 2013 (supra) in the such circumstances of the case in hand.19. In our opinion the reliance of the Appellants on the decision of Delhi High Court in Ankur Drugs and Pharma Ltd. (supra) would also not assist the Appellants. This was the case in which the Appellant was in liquidation as also a reference under the SICA was pending and in view of this position the Appellant had prayed for stay of the arbitration proceedings as also a plea was taken that the arbitration proceedings cannot taken against the guarantors.. The learned Arbitrator had rejected the objection of the Appellants. In this context the learned Single Judge of Delhi High Court considering the position in law, stayed the arbitral proceedings till such time a leave of the BIFR is obtained. As can be seen from these facts Ankur Drugs and Pharma Ltd.(supra) was not a case where there was any consent order between the parties. It was also not a case where the issue on the plea of pendency of BIFR proceedings in the context of a consent order of sale of the mortgaged properties was adjudicated as in the present case. It was also not a case where under the orders of the Division Bench in the light of the consent terms, the sale came to be confirmed in favour of the present respondent. Admittedly the order of the Division Bench dated 17 February 2014 was confirmed by the Apex Court. In view of this clear position we do not agree to the reliance by the Appellants on the decision of the learned Single Judge of the Delhi High Court in Ankur Drugs and Pharma Ltd. (Supra)20. There is no bar that the financial institution and the guarantor cannot enter into a compromise in a Section 9 application. The parties filed consent terms and had proceeded accordingly. The sale has been confirmed upto the Supreme Court. Therefore, the further consequential steps and proceedings in the present case, cannot be halted, at the instance of the appellants, who have themselves filed the consent terms and the parties having proceeded accordingly. There was nothing wrong when the consent terms were recorded and modified further by agreement. The rights have been crystalised, at least between the Respondent and the guarantor (whose property is in question) much before the filing of BIFR application by Respondent No.1. The impugned order is in consequent to it.21. We are considering the scope and purpose of Section 9 of the Arbitration Act, 1996, in the peculiar present fact and circumstances. So also the scope of inquiry under section 22 is somewhat different as the consent terms were between Respondent/financial institution and the guarantor, prior to the invocation of the BIFR proceedings by theA statement is also made by the learned Counsel for the Appellants that the property involved in the present proceedings is not the property owned by the company/undertaking but of the guarantor only and that the same is not subject matter of the proceedings before the BIFR. Thus the sale of property and the consequential ministerial act of its execution of conveyance in the background in the facts of the case cannot be halted at the instance of Appellant even though it arose out of Section 9 proceedings, pending arbitration before the Arbitral Tribunal and/or even the BIFR proceedings in question. All are the distinct and separable proceedings.22. The judgments cited on law on the scope of Section 22 of the SICA need no discussion as the law is settled. As noted above the same was subject matter of order dated 13 February 2013 and as recorded by the learned Single Judge has admittedly attained finality. We have to deal with the case in hand on the facts as they stand which we have recorded above. We are concerned with the implementation/executionapplication based upon the consent terms between financial institution and the guarantor. The industrial/companys (Respondents) arbitration is pending before the Arbitral Tribunal. There is no executable order passed under Section 9 application against the company and/or its property. There is no coercive steps taken in this proceeding against the Respondent Industry/Company or its property pending BIFR proceedings. Therefore, in view of the consent terms finality so attained, we see no reason to interfere with the order so passed by the learned Judge. | 0 | 4,796 | 1,946 | ### 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:
Sick Industrial Companies (Special Provisions) Act, 1985 without permission of the BIFR.The facts in the case in hand are completely different. In the present case the Arbitration proceedings are pending. As observed by the Division Bench in the order dated 17 February 2014 the parties are sufficiently protected in view of the pending arbitration proceedings. Further, as noted above and significantly we cannot be unmindful that there is a consent order dated 19 June 2012 in pursuance of which a private receiver was appointed to sell the mortgaged properties. We also cannot overlook the further orders dated 13 February 2013 (Supra) of the learned Single Judge whereby the very issue of the pendency of the BIFR proceedings came to be adjudicated which interse between the parties, remains undisturbed till date . Things do not stop at this as by further orders dated 17 February 2014 of the Division Bench (supra) as confirmed by the Apex Court by the order dated 2 May 2014 (supra), the sale stands confirmed in favour of the Respondent. The learned Single Judge is right in his conclusion that the cumulative effect of these orders is that there is no escape from the fact that the Appellants cannot reopen the issues and obstruct the execution of the conveyance which is a only ministerial act to be undertaken by raising a sole plea on the decision of the learned Single Judge in the Armada (Singapore) Pte Ltd. (supra). We are of the clear view that the issue as regards BIFR proceedings undoubtedly stood concluded between the parties (the respondent and the guarantors) in view of the decision of the learned Single Judge dated 13 February 2013 (supra) in the such circumstances of the case in hand.19. In our opinion the reliance of the Appellants on the decision of Delhi High Court in Ankur Drugs and Pharma Ltd. (supra) would also not assist the Appellants. This was the case in which the Appellant was in liquidation as also a reference under the SICA was pending and in view of this position the Appellant had prayed for stay of the arbitration proceedings as also a plea was taken that the arbitration proceedings cannot taken against the guarantors.. The learned Arbitrator had rejected the objection of the Appellants. In this context the learned Single Judge of Delhi High Court considering the position in law, stayed the arbitral proceedings till such time a leave of the BIFR is obtained. As can be seen from these facts Ankur Drugs and Pharma Ltd.(supra) was not a case where there was any consent order between the parties. It was also not a case where the issue on the plea of pendency of BIFR proceedings in the context of a consent order of sale of the mortgaged properties was adjudicated as in the present case. It was also not a case where under the orders of the Division Bench in the light of the consent terms, the sale came to be confirmed in favour of the present respondent. Admittedly the order of the Division Bench dated 17 February 2014 was confirmed by the Apex Court. In view of this clear position we do not agree to the reliance by the Appellants on the decision of the learned Single Judge of the Delhi High Court in Ankur Drugs and Pharma Ltd. (Supra)20. There is no bar that the financial institution and the guarantor cannot enter into a compromise in a Section 9 application. The parties filed consent terms and had proceeded accordingly. The sale has been confirmed upto the Supreme Court. Therefore, the further consequential steps and proceedings in the present case, cannot be halted, at the instance of the appellants, who have themselves filed the consent terms and the parties having proceeded accordingly. There was nothing wrong when the consent terms were recorded and modified further by agreement. The rights have been crystalised, at least between the Respondent and the guarantor (whose property is in question) much before the filing of BIFR application by Respondent No.1. The impugned order is in consequent to it.21. We are considering the scope and purpose of Section 9 of the Arbitration Act, 1996, in the peculiar present fact and circumstances. So also the scope of inquiry under section 22 is somewhat different as the consent terms were between Respondent/financial institution and the guarantor, prior to the invocation of the BIFR proceedings by the Respondent-Industry. A statement is also made by the learned Counsel for the Appellants that the property involved in the present proceedings is not the property owned by the company/undertaking but of the guarantor only and that the same is not subject matter of the proceedings before the BIFR. Thus the sale of property and the consequential ministerial act of its execution of conveyance in the background in the facts of the case cannot be halted at the instance of Appellant even though it arose out of Section 9 proceedings, pending arbitration before the Arbitral Tribunal and/or even the BIFR proceedings in question. All are the distinct and separable proceedings.22. The judgments cited on law on the scope of Section 22 of the SICA need no discussion as the law is settled. As noted above the same was subject matter of order dated 13 February 2013 and as recorded by the learned Single Judge has admittedly attained finality. We have to deal with the case in hand on the facts as they stand which we have recorded above. We are concerned with the implementation/execution inter-alia application based upon the consent terms between financial institution and the guarantor. The industrial/companys (Respondents) arbitration is pending before the Arbitral Tribunal. There is no executable order passed under Section 9 application against the company and/or its property. There is no coercive steps taken in this proceeding against the Respondent Industry/Company or its property pending BIFR proceedings. Therefore, in view of the consent terms finality so attained, we see no reason to interfere with the order so passed by the learned Judge.
### Response:
0
### Explanation:
of Section 22 of Sick Industrial Companies (Special Provisions) Act, 1985 without permission of the BIFR.The facts in the case in hand are completely different. In the present case the Arbitration proceedings are pending. As observed by the Division Bench in the order dated 17 February 2014 the parties are sufficiently protected in view of the pending arbitration proceedings. Further, as noted above and significantly we cannot be unmindful that there is a consent order dated 19 June 2012 in pursuance of which a private receiver was appointed to sell the mortgaged properties. We also cannot overlook the further orders dated 13 February 2013 (Supra) of the learned Single Judge whereby the very issue of the pendency of the BIFR proceedings came to be adjudicated which interse between the parties, remains undisturbed till date . Things do not stop at this as by further orders dated 17 February 2014 of the Division Bench (supra) as confirmed by the Apex Court by the order dated 2 May 2014 (supra), the sale stands confirmed in favour of the Respondent. The learned Single Judge is right in his conclusion that the cumulative effect of these orders is that there is no escape from the fact that the Appellants cannot reopen the issues and obstruct the execution of the conveyance which is a only ministerial act to be undertaken by raising a sole plea on the decision of the learned Single Judge in the Armada (Singapore) Pte Ltd. (supra). We are of the clear view that the issue as regards BIFR proceedings undoubtedly stood concluded between the parties (the respondent and the guarantors) in view of the decision of the learned Single Judge dated 13 February 2013 (supra) in the such circumstances of the case in hand.19. In our opinion the reliance of the Appellants on the decision of Delhi High Court in Ankur Drugs and Pharma Ltd. (supra) would also not assist the Appellants. This was the case in which the Appellant was in liquidation as also a reference under the SICA was pending and in view of this position the Appellant had prayed for stay of the arbitration proceedings as also a plea was taken that the arbitration proceedings cannot taken against the guarantors.. The learned Arbitrator had rejected the objection of the Appellants. In this context the learned Single Judge of Delhi High Court considering the position in law, stayed the arbitral proceedings till such time a leave of the BIFR is obtained. As can be seen from these facts Ankur Drugs and Pharma Ltd.(supra) was not a case where there was any consent order between the parties. It was also not a case where the issue on the plea of pendency of BIFR proceedings in the context of a consent order of sale of the mortgaged properties was adjudicated as in the present case. It was also not a case where under the orders of the Division Bench in the light of the consent terms, the sale came to be confirmed in favour of the present respondent. Admittedly the order of the Division Bench dated 17 February 2014 was confirmed by the Apex Court. In view of this clear position we do not agree to the reliance by the Appellants on the decision of the learned Single Judge of the Delhi High Court in Ankur Drugs and Pharma Ltd. (Supra)20. There is no bar that the financial institution and the guarantor cannot enter into a compromise in a Section 9 application. The parties filed consent terms and had proceeded accordingly. The sale has been confirmed upto the Supreme Court. Therefore, the further consequential steps and proceedings in the present case, cannot be halted, at the instance of the appellants, who have themselves filed the consent terms and the parties having proceeded accordingly. There was nothing wrong when the consent terms were recorded and modified further by agreement. The rights have been crystalised, at least between the Respondent and the guarantor (whose property is in question) much before the filing of BIFR application by Respondent No.1. The impugned order is in consequent to it.21. We are considering the scope and purpose of Section 9 of the Arbitration Act, 1996, in the peculiar present fact and circumstances. So also the scope of inquiry under section 22 is somewhat different as the consent terms were between Respondent/financial institution and the guarantor, prior to the invocation of the BIFR proceedings by theA statement is also made by the learned Counsel for the Appellants that the property involved in the present proceedings is not the property owned by the company/undertaking but of the guarantor only and that the same is not subject matter of the proceedings before the BIFR. Thus the sale of property and the consequential ministerial act of its execution of conveyance in the background in the facts of the case cannot be halted at the instance of Appellant even though it arose out of Section 9 proceedings, pending arbitration before the Arbitral Tribunal and/or even the BIFR proceedings in question. All are the distinct and separable proceedings.22. The judgments cited on law on the scope of Section 22 of the SICA need no discussion as the law is settled. As noted above the same was subject matter of order dated 13 February 2013 and as recorded by the learned Single Judge has admittedly attained finality. We have to deal with the case in hand on the facts as they stand which we have recorded above. We are concerned with the implementation/executionapplication based upon the consent terms between financial institution and the guarantor. The industrial/companys (Respondents) arbitration is pending before the Arbitral Tribunal. There is no executable order passed under Section 9 application against the company and/or its property. There is no coercive steps taken in this proceeding against the Respondent Industry/Company or its property pending BIFR proceedings. Therefore, in view of the consent terms finality so attained, we see no reason to interfere with the order so passed by the learned Judge.
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Sant Narain Mathur & Ors Vs. Rama Krishna Mission & Ors | the allegation that Shamsher Singh was the owner of that property and had executed a will whereunder the plaintiff was appointed the executor of Shamsher Singhs estate. As under the will a right of maintenance and residence was given to Dayali Devi, the plaintiff sought possession of the property in dispute subject to the right and interest of Dayali Devi under the will of Shamsher Singh. The trial court held that Shamsher Singh had acquired full ownership rights in the assets left by Chandan Singh. When the matter came up in appeal before the High Court, it found that the appeal must fail because the decree awarded against Deva Devi had become final and because Dayali Devi was bound by the previous decision dated November 21, 1961 of the High Court. The High Court under the circumstances did not consider it necessary to construe the will of Chandan Singh and to decide whether finding recorded by the trial court that Shamsher Singh had become the absolute owner of the entire estate of Chandan Singh was correct or not. No plea was taken on behalf of the defendants either in the trial court or in the High Court that the plaintiff was entitled only to a decree for joint possession because of his being a co-sharer and not to a decree for exclusive possession of the property in dispute. As no such plea was taken in the trial court and the High Court, we are of the opinion that the appellants should not be allowed to take this plea for the first time in this Court. In arriving at this conclusion, we have taken into account the various facts and circumstances of the case. One such circumstance is that the above plea is now being set up by persons who admittedly had no relationship with Chandan Singh, Shamsher Singh or his widow Dayali Devi. The appellants, as already mentioned, base their claim upon a will which, according to them, was executed by Dayali Devi two days before her death.14. A very important circumstance, which has weighed with us, is that the suit giving rise to this appeal was instituted more than 16 years ago on February 1, 1958. During the entire period of more than 14 years that the case remained pending in the trial court and the High Court, the plea now sought to be raised was never taken. The suit instituted in 1958 was the offshoot of a litigation between the parties which started on December 1946 when an application was filed by Capt. Mitra for the grant of a probate of the will of Shamsher Singh. Although the probate proceedings ended as a result of the dismissal of the appeal of Dayali Devi against the order granting probate, the litigation between the parties continued and showed no sign of abatement because Dayali Devi filed in 1952 a suit for declaration in respect of the property left by Shamsher Singh. It would thus appear that we have reached the culminating point of a litigation which arose our of a will executed in the last century and which has been pending in one court or the other since before the dawn of independence. The question is whether we should call a halt and put an end to this litigation or whether we should allow the litigation to take a further meandering course which must necessarily be the case if we allow the new plea to be raised in this Court. It has already been mentioned that the trial court held that Shamsher Singh had acquired full ownership rights in the assets left by Chandan Singh. The High Court did not go into this aspect of the matter as the need for doing so did not arise in the light of the contentions advanced on behalf of the appellants before the High Court. In case the appellants are now allowed to take the new plea, the case would have to be remanded to the High Court for dealing with and recording a finding on the above aspect of the matter. The High Court shall have also in what event to go into the question as to whether Dayali Devi could deny the title of Shamsher Singh to the entire property in dispute in view of the fact that the herself had set up a will of Shamsher Singh on the assumption that he was the full owner of the property in dispute. The High Court did not full deal with this aspect of the matter beyond observing that Dayali Devi was approbating and reprobating. Deva Devi and Dayali Dev who claimed rights and interest in the property in dispute, are now no more. So is Capt. Mitra who was the party arrayed against the two Iadies in the litigation. It is time, in our opinion, that we draw the final curtain on this long drawn litigation and not allow its members to smoulder for a further length of time, more so when the principal contestants have all departed bowing as it were to the inexorable law of nature. One is tempted in this context to refer to the observations of Chief Justice Crewe in a case concerning peerage claim made after the death without issue of the Earl of Oxford. Said the learned Chief Justice:"Time hath its revolutions; there must be a period and an end to all temporal things - an end of names, and dignities and whatsoever is terrence, and why not of De Vere? For where is Bohun? Where is Mowbray? Where is Mortimer? Why which is more and most of all, where is Plantagenet? They are all entombed in the urns and sepulchers of mortality. What was said about the inevitable end of all mortal beings, however, eminent they may be, is equally true of the affairs of mortal beings, their disputes and conflicts, their ventures in the filed of love and sport, their achievements and failures for essentially they all have stamp of mortality on them." | 0[ds]13. The present suit for possession of the property in disputed was filed by Capt. Mitra on February 1, 1958 on the allegation that Shamsher Singh was the owner of that property and had executed a will whereunder the plaintiff was appointed the executor of Shamsher Singhs estate. As under the will a right of maintenance and residence was given to Dayali Devi, the plaintiff sought possession of the property in dispute subject to the right and interest of Dayali Devi under the will of Shamsher Singh. The trial court held that Shamsher Singh had acquired full ownership rights in the assets left by Chandan Singh. When the matter came up in appeal before the High Court, it found that the appeal must fail because the decree awarded against Deva Devi had become final and because Dayali Devi was bound by the previous decision dated November 21, 1961 of the High Court. The High Court under the circumstances did not consider it necessary to construe the will of Chandan Singh and to decide whether finding recorded by the trial court that Shamsher Singh had become the absolute owner of the entire estate of Chandan Singh was correct or not. No plea was taken on behalf of the defendants either in the trial court or in the High Court that the plaintiff was entitled only to a decree for joint possession because of his being a co-sharer and not to a decree for exclusive possession of the property in dispute. As no such plea was taken in the trial court and the High Court, we are of the opinion that the appellants should not be allowed to take this plea for the first time in this Court. In arriving at this conclusion, we have taken into account the various facts and circumstances of the case. One such circumstance is that the above plea is now being set up by persons who admittedly had no relationship with Chandan Singh, Shamsher Singh or his widow Dayali Devi. The appellants, as already mentioned, base their claim upon a will which, according to them, was executed by Dayali Devi two days before her death.14. A very important circumstance, which has weighed with us, is that the suit giving rise to this appeal was instituted more than 16 years ago on February 1, 1958. During the entire period of more than 14 years that the case remained pending in the trial court and the High Court, the plea now sought to be raised was never taken. The suit instituted in 1958 was the offshoot of a litigation between the parties which started on December 1946 when an application was filed by Capt. Mitra for the grant of a probate of the will of Shamsher Singh. Although the probate proceedings ended as a result of the dismissal of the appeal of Dayali Devi against the order granting probate, the litigation between the parties continued and showed no sign of abatement because Dayali Devi filed in 1952 a suit for declaration in respect of the property left by Shamsher Singh. It would thus appear that we have reached the culminating point of a litigation which arose our of a will executed in the last century and which has been pending in one court or the other since before the dawn of independence. The question is whether we should call a halt and put an end to this litigation or whether we should allow the litigation to take a further meandering course which must necessarily be the case if we allow the new plea to be raised in this Court. It has already been mentioned that the trial court held that Shamsher Singh had acquired full ownership rights in the assets left by Chandan Singh. The High Court did not go into this aspect of the matter as the need for doing so did not arise in the light of the contentions advanced on behalf of the appellants before the Highcase the appellants are now allowed to take the new plea, the case would have to be remanded to the High Court for dealing with and recording a finding on the above aspect of the matter. The High Court shall have also in what event to go into the question as to whether Dayali Devi could deny the title of Shamsher Singh to the entire property in dispute in view of the fact that the herself had set up a will of Shamsher Singh on the assumption that he was the full owner of the property in dispute. The High Court did not full deal with this aspect of the matter beyond observing that Dayali Devi was approbating and reprobating. Deva Devi and Dayali Dev who claimed rights and interest in the property in dispute, are now no more. So is Capt. Mitra who was the party arrayed against the two Iadies in the litigation. It is time, in our opinion, that we draw the final curtain on this long drawn litigation and not allow its members to smoulder for a further length of time, more so when the principal contestants have all departed bowing as it were to the inexorable law of nature. One is tempted in this context to refer to the observations of Chief Justice Crewe in a case concerning peerage claim made after the death without issue of the Earl of Oxford. | 0 | 4,352 | 950 | ### 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:
the allegation that Shamsher Singh was the owner of that property and had executed a will whereunder the plaintiff was appointed the executor of Shamsher Singhs estate. As under the will a right of maintenance and residence was given to Dayali Devi, the plaintiff sought possession of the property in dispute subject to the right and interest of Dayali Devi under the will of Shamsher Singh. The trial court held that Shamsher Singh had acquired full ownership rights in the assets left by Chandan Singh. When the matter came up in appeal before the High Court, it found that the appeal must fail because the decree awarded against Deva Devi had become final and because Dayali Devi was bound by the previous decision dated November 21, 1961 of the High Court. The High Court under the circumstances did not consider it necessary to construe the will of Chandan Singh and to decide whether finding recorded by the trial court that Shamsher Singh had become the absolute owner of the entire estate of Chandan Singh was correct or not. No plea was taken on behalf of the defendants either in the trial court or in the High Court that the plaintiff was entitled only to a decree for joint possession because of his being a co-sharer and not to a decree for exclusive possession of the property in dispute. As no such plea was taken in the trial court and the High Court, we are of the opinion that the appellants should not be allowed to take this plea for the first time in this Court. In arriving at this conclusion, we have taken into account the various facts and circumstances of the case. One such circumstance is that the above plea is now being set up by persons who admittedly had no relationship with Chandan Singh, Shamsher Singh or his widow Dayali Devi. The appellants, as already mentioned, base their claim upon a will which, according to them, was executed by Dayali Devi two days before her death.14. A very important circumstance, which has weighed with us, is that the suit giving rise to this appeal was instituted more than 16 years ago on February 1, 1958. During the entire period of more than 14 years that the case remained pending in the trial court and the High Court, the plea now sought to be raised was never taken. The suit instituted in 1958 was the offshoot of a litigation between the parties which started on December 1946 when an application was filed by Capt. Mitra for the grant of a probate of the will of Shamsher Singh. Although the probate proceedings ended as a result of the dismissal of the appeal of Dayali Devi against the order granting probate, the litigation between the parties continued and showed no sign of abatement because Dayali Devi filed in 1952 a suit for declaration in respect of the property left by Shamsher Singh. It would thus appear that we have reached the culminating point of a litigation which arose our of a will executed in the last century and which has been pending in one court or the other since before the dawn of independence. The question is whether we should call a halt and put an end to this litigation or whether we should allow the litigation to take a further meandering course which must necessarily be the case if we allow the new plea to be raised in this Court. It has already been mentioned that the trial court held that Shamsher Singh had acquired full ownership rights in the assets left by Chandan Singh. The High Court did not go into this aspect of the matter as the need for doing so did not arise in the light of the contentions advanced on behalf of the appellants before the High Court. In case the appellants are now allowed to take the new plea, the case would have to be remanded to the High Court for dealing with and recording a finding on the above aspect of the matter. The High Court shall have also in what event to go into the question as to whether Dayali Devi could deny the title of Shamsher Singh to the entire property in dispute in view of the fact that the herself had set up a will of Shamsher Singh on the assumption that he was the full owner of the property in dispute. The High Court did not full deal with this aspect of the matter beyond observing that Dayali Devi was approbating and reprobating. Deva Devi and Dayali Dev who claimed rights and interest in the property in dispute, are now no more. So is Capt. Mitra who was the party arrayed against the two Iadies in the litigation. It is time, in our opinion, that we draw the final curtain on this long drawn litigation and not allow its members to smoulder for a further length of time, more so when the principal contestants have all departed bowing as it were to the inexorable law of nature. One is tempted in this context to refer to the observations of Chief Justice Crewe in a case concerning peerage claim made after the death without issue of the Earl of Oxford. Said the learned Chief Justice:"Time hath its revolutions; there must be a period and an end to all temporal things - an end of names, and dignities and whatsoever is terrence, and why not of De Vere? For where is Bohun? Where is Mowbray? Where is Mortimer? Why which is more and most of all, where is Plantagenet? They are all entombed in the urns and sepulchers of mortality. What was said about the inevitable end of all mortal beings, however, eminent they may be, is equally true of the affairs of mortal beings, their disputes and conflicts, their ventures in the filed of love and sport, their achievements and failures for essentially they all have stamp of mortality on them."
### Response:
0
### Explanation:
13. The present suit for possession of the property in disputed was filed by Capt. Mitra on February 1, 1958 on the allegation that Shamsher Singh was the owner of that property and had executed a will whereunder the plaintiff was appointed the executor of Shamsher Singhs estate. As under the will a right of maintenance and residence was given to Dayali Devi, the plaintiff sought possession of the property in dispute subject to the right and interest of Dayali Devi under the will of Shamsher Singh. The trial court held that Shamsher Singh had acquired full ownership rights in the assets left by Chandan Singh. When the matter came up in appeal before the High Court, it found that the appeal must fail because the decree awarded against Deva Devi had become final and because Dayali Devi was bound by the previous decision dated November 21, 1961 of the High Court. The High Court under the circumstances did not consider it necessary to construe the will of Chandan Singh and to decide whether finding recorded by the trial court that Shamsher Singh had become the absolute owner of the entire estate of Chandan Singh was correct or not. No plea was taken on behalf of the defendants either in the trial court or in the High Court that the plaintiff was entitled only to a decree for joint possession because of his being a co-sharer and not to a decree for exclusive possession of the property in dispute. As no such plea was taken in the trial court and the High Court, we are of the opinion that the appellants should not be allowed to take this plea for the first time in this Court. In arriving at this conclusion, we have taken into account the various facts and circumstances of the case. One such circumstance is that the above plea is now being set up by persons who admittedly had no relationship with Chandan Singh, Shamsher Singh or his widow Dayali Devi. The appellants, as already mentioned, base their claim upon a will which, according to them, was executed by Dayali Devi two days before her death.14. A very important circumstance, which has weighed with us, is that the suit giving rise to this appeal was instituted more than 16 years ago on February 1, 1958. During the entire period of more than 14 years that the case remained pending in the trial court and the High Court, the plea now sought to be raised was never taken. The suit instituted in 1958 was the offshoot of a litigation between the parties which started on December 1946 when an application was filed by Capt. Mitra for the grant of a probate of the will of Shamsher Singh. Although the probate proceedings ended as a result of the dismissal of the appeal of Dayali Devi against the order granting probate, the litigation between the parties continued and showed no sign of abatement because Dayali Devi filed in 1952 a suit for declaration in respect of the property left by Shamsher Singh. It would thus appear that we have reached the culminating point of a litigation which arose our of a will executed in the last century and which has been pending in one court or the other since before the dawn of independence. The question is whether we should call a halt and put an end to this litigation or whether we should allow the litigation to take a further meandering course which must necessarily be the case if we allow the new plea to be raised in this Court. It has already been mentioned that the trial court held that Shamsher Singh had acquired full ownership rights in the assets left by Chandan Singh. The High Court did not go into this aspect of the matter as the need for doing so did not arise in the light of the contentions advanced on behalf of the appellants before the Highcase the appellants are now allowed to take the new plea, the case would have to be remanded to the High Court for dealing with and recording a finding on the above aspect of the matter. The High Court shall have also in what event to go into the question as to whether Dayali Devi could deny the title of Shamsher Singh to the entire property in dispute in view of the fact that the herself had set up a will of Shamsher Singh on the assumption that he was the full owner of the property in dispute. The High Court did not full deal with this aspect of the matter beyond observing that Dayali Devi was approbating and reprobating. Deva Devi and Dayali Dev who claimed rights and interest in the property in dispute, are now no more. So is Capt. Mitra who was the party arrayed against the two Iadies in the litigation. It is time, in our opinion, that we draw the final curtain on this long drawn litigation and not allow its members to smoulder for a further length of time, more so when the principal contestants have all departed bowing as it were to the inexorable law of nature. One is tempted in this context to refer to the observations of Chief Justice Crewe in a case concerning peerage claim made after the death without issue of the Earl of Oxford.
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Workmen Of Orient Paper Mills Ltd.Brajrajnagar Vs. M/S. Orient Paper Mills Ltd | of The Associated Cement Companies Ltd., Dwarka Cement Works, Dwarka v. Its Workmen, 1959 SCR 925 = (AIR 1959 SC 967 ). The Company is paying profit bonus equivalent to three months basic wage of each workman. The demand made by the workmen was for bonus equivalent to six months wages, and the argument was that, if the Tribunal had worked out the surplus available on the correct basis, that surplus would have certainly justified grant of profit bonus @ six months wages.14. This argument fails, because it appears to us that the demand, as put forward before the Tribunal for bonus equivalent to six months wages, was, in fact, never made by the workmen on the basis that the surplus calculated under the Full Bench Formula would justify bonus being granted at that rate. The Tribunal, in this connection, has quoted the pleading of the workmen in their written statement before it. The pleading makes it clear that the claim or six months wages was not based on the Full Bench Formula, but on the ground that certain clerical staff was being paid bonus which, in effect, amounted to about six months basic wages because the bonus was calculated in their case by taking into account the consolidated wages, including dearness allowance, while in the case of the workmen, the dearness allowance element of the wages was being ignored and bonus was calculated only by taking into account basic wages. We agree with this interpretation of the pleadings of the workmen. Further, there is one very significant circumstance, viz., that this dispute was raised by the workmen before the expiry of the year 1962-68. Initially, there was an attempt that the dispute be referred to the Industrial Tribunal underSection10 (2) of the Act on the basis of an agreed enumeration of subjects of dispute drawn up by the workmen and the Company together. That reference underSection10 (2) of the Act, however failed due to some technical defect. The reference was ultimately made by the Government underSection10 (1) of the Act, but it was made in the same form in which the parties had agreed to refer it. The reference was made by the Government on the 4th October 1962. At that time, the year 1962-68 was still running and the accounts for that year could not possibly have been closed and made available. The balance-sheet and the profit and loss account of that year could only be prepared after the closure of the year on 31st March, 1963. In fact, the reference included a dispute even for the year 1963-64 which year had not even started running.On the face of it, at the time of the reference there could be no question of applying the Full Bench Formula for calculation of surplus, because there were no completed accounts for the two years 1962-63 and 1963-64. This circumstance makes it clear that the claim for higher bonus Could not, at the time of reference, have been based on the availability of surplus according to the Full Bench Formula.The Tribunal was, therefore, quite correct in not trying to work out the surplus according to the Full Bench Formula and in awarding bonus on that basis. In this connection, learned Counsel for the workmen urged that, at least by the time when the Award was give the completed accounts for the year 1962-63 were available; but it seems to us that this circumstance is of no assistance The award had to cover the year 1963-64 also and at least for that year the accounts could not possibly have been completed, as that year was still running when the award was given by the Tribunal on the 11th January, 1964.Further, the Tribunal was expected to decide the dispute only as referred to it and, at the time of reference at least, there was not and there could possibly not be a claim for higher bonus on the basis of the application of the Full Bench Formula.15. The claim was, in fact, based on the circumstance that, according to the workmen, the bonus in their case was being calculated as equivalent to three months basic wages, while, in the case of some clerical staff, the calculation was made on the basis of their consolidated wages consisting of basic wages and dearness allowance. The argument is incorrect. In the case of even the lowest paid clerical staff, to whom dearness allowance is separately payable, the bonus is only calculated on the basis of basic wages, and the dearness allowance is ignored. There is some clerical staff which does not get any dearness allowance at all and it is only in those cases that the bonus is worked out on the basis of the total wages paid. In such cases, the calculation is still on the basis of basic wage, because it cannot be assumed that their wage is a consolidated wage consisting of the two elements of basic wage and dearness allowance lumped together. In fact, the principle which is being applied is the simple one of calculating the bonus payable @ three months basic wage in each case and in no case is the dearness allowance taken into account. There is, therefore, no discrimination or inequality as urged on behalf of the workmen.16. Finally, it was urged that even the casual and Badli workers should be allowed bonus on the same basis as the permanent workers. The Tribunal rejected this demand on the ground that, under the Agreement of 1959, the workmen and the Company had agreed specifically to exclude these classes of workers in regard to payment of bonus. We are unable to hold that the Tribunal committed any error of law, requiring interference by us, in basing its decision on the principle contained in the earlier Agreement of the parties and in holding that there was no justification to introduce a new element of payment of bonus to casual and Badli workers at this stage. The claim in this respect also fails. | 1[ds]In the light of these views which were brought to the notice of the Tribunal, the Tribunal proceeded to consider the minimum wages paid by three Collieries, Orient Colliery, the Colliery and Himgiri-Rampur Colliery, the Rourkela Steel Plant, the Cement Factory at Rajgangpur and the Indian Aluminium Company, Hirakud which the Tribunal found were situated not very far away from the place where the Company had its factory. The Tribunal mentioned that, according to the Coal Award, the minimum wage in the Collieries at the then existing Price Index was Rs. 93-7-0; in the Cement Factory Rs. 96.88; in the Steel Plant Rs. 95/- and in the Aluminum Company Rs. 97.84 nP. The Tribunal then also took into, account the minimum wages being paid by other Paper Mills situated outside the region and thereafter recorded its ownthe basis of this finding of fact, the Tribunal held that, if the minimum wage in the Company is to be fixed more on the basis of the minimum wage prevailing in other industries in that region which. in its opinion, would be appropriate under the circumstances of the case, then a revision was really necessary. We think that the criticism of learned counsel for the workmen that the Tribunal committed an error at this stage in merely, holding that the facts found by it justified a revision and in not proceeding to fix minimum wages on the basis of the other industries in the region, is fully justified. It is to be noted that there is no mention in the award of the Tribunal that the Company at any stage put forward the case that the Collieries, the Steel Plant, the Cement Factory, and the Aluminium Company were concerns which were not comparable with the Company. In fact, in the course of arguments before us, we asked learned Counsel for the Company to point out whether such a plea was taken at any stage by the Company and whether evidence was led to show that these concerns were not comparable with the Company, Learned Counsel had to admit that no specific plea was taken by the Company in this behalf and at least no evidence at all was led to show that these concerns are not comparable with the Company. The workmen in their written statement had relied on the wage structure in these concerns obviously on the basis that they were comparable, Since the Company never took the plea that they were not comparable, no occasion arose for the workmen to give evidence of the concerns being comparable. In fact, the Tribunal also accepted them as being comparable and that is why, in its conclusion, the Tribunal held that, in its opinion, it would be appropriate under the circumstances of the case to fix the minimum wage in the Company on the basis of the minimum wage prevailing in other industries in that region. By the expression "other industries in the region" the Tribunal was obviously referring to these concerns. Having come to this view it is clear that, to give full effect to the principle laid down by this Court in the case of French Motor Car Co. (1963) Supp 2 SCR 16 = (AIR 1963 SC 1327 ) (supra), the Tribunal should have proceeded to fix the minimum wage in the Company on the basis of the average minimum wage prevailing in these concerns. We have already quoted the figures of the minimum wage prevailing in these concerns.On their basis, it appears to us that there will be full justification for fixing the minimum wage in the Company at Rs. 95/- per mensem which is about the average of the wages prevailing in all those concerns. In this connection, we may take notice of the fact that, in the written statement of the workmen, the minimum wages prevailing in these concerns were shown at figures lower than those mentioned by the Tribunal; but it appears that those lower figures were given, because the wages mentioned in the written statement were based on a lower Price Index. The Tribunal considered the minimum wages in these concerns on the basis of the prevailing Price Index of 441 at Sambalpur taking 100 as the basic Price Index for the year 1939 Even when fixing the minimum wage for the Company on the basis of the alternative calculation made by the Tribunal, the Tribunal has proceeded on the assumption that the minimum wage is being fixed for the Price Index No. 441 prevailing at the time of the award taking 100 as the basic index for the year 1939. In these circumstances, we think that the minimum wage in the Company should have been fixed by the Tribunal at Rs. 95/- per mensem, following the principle laid down by this Court in the case of French Motor Car Co. (1963) Supp 2 SCR 16 = (AIR 1963 SC 1327 ), (supra). The Tribunal should not have proceeded to make the alternative calculation on some other basis so as to arrive at a lower figure of Rs. 73/- p. m. as the wage covering the basic wage and the dearness allowance, in addition to Rs. 11/- p. m. payable as production bonus.5. Learned counsel for the Company urged before us that the principle of fix action of wages on the basis of comparison in the region laid down in the French Motor Car Co.s case, (1963) Supp 2 SCR 16 = (AIR 1963 SC 1327 ) (supra) is not rigid, and it is not necessary that the minimum wage in the Company must be fixed at the average level of wages in the other comparable industries in the region. According to him note should be taken of the fact that, at least in the paper industry in this area, the other concerns are paying much lower wages. This point has to be rejected straightway in view of the finding that those concerns are very small and not comparable with the Company. It was also urged that, in fixing the minimum wage, the wages payable in the paper industry in other parts of the country should also be kept view. We do not think that such a consideration should be taken into account when applying the principle of fixing the minimum wage primarily on the basis of comparison between different industries in the same region.Finally, it was argued that other amenities being provided by the Company should also be taken into account when fixing the minimum wage. In this case, however, there is nothing to show that the Company is providing any such amenities which are different from the amenities that are being provided by those concerns in the region which are being compared with the Company for the purpose of fixation of the minimum wage. Consequently, we do not think that there is any justification for departing from the figure of Rs. 95/- which is the average minimum wage payable by those industries.The claim was, in fact, based on the circumstance that, according to the workmen, the bonus in their case was being calculated as equivalent to three months basic wages, while, in the case of some clerical staff, the calculation was made on the basis of their consolidated wages consisting of basic wages and dearness allowance. The argument is incorrect. In the case of even the lowest paid clerical staff, to whom dearness allowance is separately payable, the bonus is only calculated on the basis of basic wages, and the dearness allowance is ignored. There is some clerical staff which does not get any dearness allowance at all and it is only in those cases that the bonus is worked out on the basis of the total wages paid. In such cases, the calculation is still on the basis of basic wage, because it cannot be assumed that their wage is a consolidated wage consisting of the two elements of basic wage and dearness allowance lumped together. In fact, the principle which is being applied is the simple one of calculating the bonus payable @ three months basic wage in each case and in no case is the dearness allowance taken into account. There is, therefore, no discrimination or inequality as urged on behalf of the workmen.16. Finally, it was urged that even the casual and Badli workers should be allowed bonus on the same basis as the permanent workers. The Tribunal rejected this demand on the ground that, under the Agreement of 1959, the workmen and the Company had agreed specifically to exclude these classes of workers in regard to payment of bonus. We are unable to hold that the Tribunal committed any error of law, requiring interference by us, in basing its decision on the principle contained in the earlier Agreement of the parties and in holding that there was no justification to introduce a new element of payment of bonus to casual and Badli workers at this stage. The claim in this respect also fails. | 1 | 5,547 | 1,632 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
of The Associated Cement Companies Ltd., Dwarka Cement Works, Dwarka v. Its Workmen, 1959 SCR 925 = (AIR 1959 SC 967 ). The Company is paying profit bonus equivalent to three months basic wage of each workman. The demand made by the workmen was for bonus equivalent to six months wages, and the argument was that, if the Tribunal had worked out the surplus available on the correct basis, that surplus would have certainly justified grant of profit bonus @ six months wages.14. This argument fails, because it appears to us that the demand, as put forward before the Tribunal for bonus equivalent to six months wages, was, in fact, never made by the workmen on the basis that the surplus calculated under the Full Bench Formula would justify bonus being granted at that rate. The Tribunal, in this connection, has quoted the pleading of the workmen in their written statement before it. The pleading makes it clear that the claim or six months wages was not based on the Full Bench Formula, but on the ground that certain clerical staff was being paid bonus which, in effect, amounted to about six months basic wages because the bonus was calculated in their case by taking into account the consolidated wages, including dearness allowance, while in the case of the workmen, the dearness allowance element of the wages was being ignored and bonus was calculated only by taking into account basic wages. We agree with this interpretation of the pleadings of the workmen. Further, there is one very significant circumstance, viz., that this dispute was raised by the workmen before the expiry of the year 1962-68. Initially, there was an attempt that the dispute be referred to the Industrial Tribunal underSection10 (2) of the Act on the basis of an agreed enumeration of subjects of dispute drawn up by the workmen and the Company together. That reference underSection10 (2) of the Act, however failed due to some technical defect. The reference was ultimately made by the Government underSection10 (1) of the Act, but it was made in the same form in which the parties had agreed to refer it. The reference was made by the Government on the 4th October 1962. At that time, the year 1962-68 was still running and the accounts for that year could not possibly have been closed and made available. The balance-sheet and the profit and loss account of that year could only be prepared after the closure of the year on 31st March, 1963. In fact, the reference included a dispute even for the year 1963-64 which year had not even started running.On the face of it, at the time of the reference there could be no question of applying the Full Bench Formula for calculation of surplus, because there were no completed accounts for the two years 1962-63 and 1963-64. This circumstance makes it clear that the claim for higher bonus Could not, at the time of reference, have been based on the availability of surplus according to the Full Bench Formula.The Tribunal was, therefore, quite correct in not trying to work out the surplus according to the Full Bench Formula and in awarding bonus on that basis. In this connection, learned Counsel for the workmen urged that, at least by the time when the Award was give the completed accounts for the year 1962-63 were available; but it seems to us that this circumstance is of no assistance The award had to cover the year 1963-64 also and at least for that year the accounts could not possibly have been completed, as that year was still running when the award was given by the Tribunal on the 11th January, 1964.Further, the Tribunal was expected to decide the dispute only as referred to it and, at the time of reference at least, there was not and there could possibly not be a claim for higher bonus on the basis of the application of the Full Bench Formula.15. The claim was, in fact, based on the circumstance that, according to the workmen, the bonus in their case was being calculated as equivalent to three months basic wages, while, in the case of some clerical staff, the calculation was made on the basis of their consolidated wages consisting of basic wages and dearness allowance. The argument is incorrect. In the case of even the lowest paid clerical staff, to whom dearness allowance is separately payable, the bonus is only calculated on the basis of basic wages, and the dearness allowance is ignored. There is some clerical staff which does not get any dearness allowance at all and it is only in those cases that the bonus is worked out on the basis of the total wages paid. In such cases, the calculation is still on the basis of basic wage, because it cannot be assumed that their wage is a consolidated wage consisting of the two elements of basic wage and dearness allowance lumped together. In fact, the principle which is being applied is the simple one of calculating the bonus payable @ three months basic wage in each case and in no case is the dearness allowance taken into account. There is, therefore, no discrimination or inequality as urged on behalf of the workmen.16. Finally, it was urged that even the casual and Badli workers should be allowed bonus on the same basis as the permanent workers. The Tribunal rejected this demand on the ground that, under the Agreement of 1959, the workmen and the Company had agreed specifically to exclude these classes of workers in regard to payment of bonus. We are unable to hold that the Tribunal committed any error of law, requiring interference by us, in basing its decision on the principle contained in the earlier Agreement of the parties and in holding that there was no justification to introduce a new element of payment of bonus to casual and Badli workers at this stage. The claim in this respect also fails.
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1
### Explanation:
concerns. Having come to this view it is clear that, to give full effect to the principle laid down by this Court in the case of French Motor Car Co. (1963) Supp 2 SCR 16 = (AIR 1963 SC 1327 ) (supra), the Tribunal should have proceeded to fix the minimum wage in the Company on the basis of the average minimum wage prevailing in these concerns. We have already quoted the figures of the minimum wage prevailing in these concerns.On their basis, it appears to us that there will be full justification for fixing the minimum wage in the Company at Rs. 95/- per mensem which is about the average of the wages prevailing in all those concerns. In this connection, we may take notice of the fact that, in the written statement of the workmen, the minimum wages prevailing in these concerns were shown at figures lower than those mentioned by the Tribunal; but it appears that those lower figures were given, because the wages mentioned in the written statement were based on a lower Price Index. The Tribunal considered the minimum wages in these concerns on the basis of the prevailing Price Index of 441 at Sambalpur taking 100 as the basic Price Index for the year 1939 Even when fixing the minimum wage for the Company on the basis of the alternative calculation made by the Tribunal, the Tribunal has proceeded on the assumption that the minimum wage is being fixed for the Price Index No. 441 prevailing at the time of the award taking 100 as the basic index for the year 1939. In these circumstances, we think that the minimum wage in the Company should have been fixed by the Tribunal at Rs. 95/- per mensem, following the principle laid down by this Court in the case of French Motor Car Co. (1963) Supp 2 SCR 16 = (AIR 1963 SC 1327 ), (supra). The Tribunal should not have proceeded to make the alternative calculation on some other basis so as to arrive at a lower figure of Rs. 73/- p. m. as the wage covering the basic wage and the dearness allowance, in addition to Rs. 11/- p. m. payable as production bonus.5. Learned counsel for the Company urged before us that the principle of fix action of wages on the basis of comparison in the region laid down in the French Motor Car Co.s case, (1963) Supp 2 SCR 16 = (AIR 1963 SC 1327 ) (supra) is not rigid, and it is not necessary that the minimum wage in the Company must be fixed at the average level of wages in the other comparable industries in the region. According to him note should be taken of the fact that, at least in the paper industry in this area, the other concerns are paying much lower wages. This point has to be rejected straightway in view of the finding that those concerns are very small and not comparable with the Company. It was also urged that, in fixing the minimum wage, the wages payable in the paper industry in other parts of the country should also be kept view. We do not think that such a consideration should be taken into account when applying the principle of fixing the minimum wage primarily on the basis of comparison between different industries in the same region.Finally, it was argued that other amenities being provided by the Company should also be taken into account when fixing the minimum wage. In this case, however, there is nothing to show that the Company is providing any such amenities which are different from the amenities that are being provided by those concerns in the region which are being compared with the Company for the purpose of fixation of the minimum wage. Consequently, we do not think that there is any justification for departing from the figure of Rs. 95/- which is the average minimum wage payable by those industries.The claim was, in fact, based on the circumstance that, according to the workmen, the bonus in their case was being calculated as equivalent to three months basic wages, while, in the case of some clerical staff, the calculation was made on the basis of their consolidated wages consisting of basic wages and dearness allowance. The argument is incorrect. In the case of even the lowest paid clerical staff, to whom dearness allowance is separately payable, the bonus is only calculated on the basis of basic wages, and the dearness allowance is ignored. There is some clerical staff which does not get any dearness allowance at all and it is only in those cases that the bonus is worked out on the basis of the total wages paid. In such cases, the calculation is still on the basis of basic wage, because it cannot be assumed that their wage is a consolidated wage consisting of the two elements of basic wage and dearness allowance lumped together. In fact, the principle which is being applied is the simple one of calculating the bonus payable @ three months basic wage in each case and in no case is the dearness allowance taken into account. There is, therefore, no discrimination or inequality as urged on behalf of the workmen.16. Finally, it was urged that even the casual and Badli workers should be allowed bonus on the same basis as the permanent workers. The Tribunal rejected this demand on the ground that, under the Agreement of 1959, the workmen and the Company had agreed specifically to exclude these classes of workers in regard to payment of bonus. We are unable to hold that the Tribunal committed any error of law, requiring interference by us, in basing its decision on the principle contained in the earlier Agreement of the parties and in holding that there was no justification to introduce a new element of payment of bonus to casual and Badli workers at this stage. The claim in this respect also fails.
|
M/S. PANTHER SECURITY SERVICE PRIVATE LIMITED Vs. THE EMPLOYEES? PROVIDENT FUND ORGANISATION AND ANOTHER | that the provisions of the EPF Act applied to the appellant. The Assistant Provident Fund Commissioner on 07.03.2006 on basis of the seized documents opined that the appellant had 79 employees as on 03.04.2001 allotting Code No. UP/39076, requiring the appellant to deposit the necessary contributions. The appellant having objected to the same, proceedings were initiated under Section 7A of the EPF Act with due opportunity of defence to the appellant. The appellant failed to submit the attendance register, wage register etc. The Assistant Provident Fund Commissioner on basis of balance sheets seized during raid opined that the appellant had more than twenty employees on its rolls and stood covered by the term expert services such as providing of personnel under the Notification dated 17.05.1971. It also noticed that wages were not paid directly by the clients to the security guards deployed by the appellant but that the payments were made by the clients to the appellant, who in turn disbursed wages to the security guards. The remedy of an appeal before the Tribunal under Section 7-I was bypassed by the appellant instituting the writ petition directly. The High Court declined interference with the conclusion of expert services being rendered by the appellant. A review petition contending that the appellant stood duly registered under the Act of 2005 was also rejected. 8. The Act of 2005 defines a private security agency under Section 2(g) as an organization engaged in the business of providing security services including training to private security guards and providing such guards to any industrial or business undertakings or a company or any other person or property. A licence is mandatory under Section 4 and those security agencies existing since earlier were mandated to obtain such licence within one year of coming into force of the Act. A complete procedure is provided with regard to making of an application for grant of a licence under Section 7, renewal under Section 8 of the Act. The eligibility for appointment as a security guard with such security agency is provided under Section 10 of the Act. Section 11 provides for the condition of the licence and the licence can be cancelled under Section 13. A private security agency under Section 15 is required to maintain a register inter alia with the names, addresses, photographs and salaries of the private security guards and supervisors under its control. The Private Security Agencies Central Model Rules, 2006, framed under the Act of 2005, requires verification by the security agency before employing any person as a security guard or supervisor in the manner prescribed. Proper security training of the person employed is the responsibility of the security agency under Rule 5, and Rule 6 prescribes the standard of physical fitness for security guards. Under Rule 14 the security agency is required to maintain a Register in Form VIII, Part-I of which contains details of the management, Part-II contains the name of guard, his parentage, address, photograph, badge no. and the salary with the date of commencement. Part III contains the name of the customer, address, the number of guards deployed, date of commencement of duty and date of discontinuance. Part IV contains the name of the security guard/supervisor, address of the place of duty, if accompanied by arms, date and time of commencement of duty and date and time of end of duty. 9. We have no doubt in our mind that the appellant is engaged in the specialised and expert services of providing trained and efficient security guards to its clients on payment basis. The contention that the appellant merely facilitated in providing Chowkidars cannot be countenanced. The provisions of the Act of 2005 make it manifest that the appellant is the employer of such security guards and who are its employees and are paid wages by the appellant. Merely because the client pays money under a contract to the appellant and in turn the appellant pays the wages of such security guards from such contractual amount received by it, it does not make the client the employer of the security guard nor do the security guards constitute employees of the client. The appellant therefore is squarely covered by the Notification dated 17.05.1971. 10. The appellant never made available the statutory registers under the Act of 2005 to the authorities under the EPF Act. In fact, we have no hesitation in holding that it actually withheld relevant papers. This coupled with the letter dated 03.04.2001 written by the appellant, the appellants balance sheet seized for the financial years 2003-04, 2004-05, 2005-06 and 2006-07 showing payment of wages running into lacs, necessarily and only leads to the irresistible conclusion that the appellant has more than 20 employees on its roles. The provisions of the Act therefore necessarily apply to it. 11. Krantikari Suraksha Rakshak Sanghatana (supra) has no relevance to the present controversy as it concerned to the provision of the Maharashtra Private Security Guards (Regulation of Employment and Welfare) Act, 1981. The applicability of the EPF Act did not fall for consideration there. Saraswath Films (supra) was in the context of the Employees State Insurance Act, 1948 interpreting the term immediate employer, which again has no relevance to the present controversy. 12. That the provisions of the EPF Act are applicable to a private security agency engaged in the expert service of providing personnel to its client, if it meets the requirement of the EPF Act. The question is no more res integra evident from the discussions contained in Group 4 Securitas Guarding Ltd. vs. Employees Provident Fund Appellate Tribunal & Ors., 184 (2011) DLT 591 , G4S Secure Solutions India Pvt. Ltd. vs. The Regional Provident Fund Commissioner-I and Ors., ILR 2018 Karnataka 2527, Orissa State Beverages Corporation Limited vs. Regional Provident Fund Commissioner & Ors., 2016 LLR 413, Roma Henney Security Services Private Limited vs. Central Board of Trustees, EPF Organisation, 2012 SCC OnLine Del 3597, Sarvesh Security Services Private Limited vs. University of Delhi, 2017 SCC OnLine Del 12209. | 0[ds]9. We have no doubt in our mind that the appellant is engaged in the specialised and expert services of providing trained and efficient security guards to its clients on payment basis. The contention that the appellant merely facilitated in providing Chowkidars cannot be countenanced. The provisions of the Act of 2005 make it manifest that the appellant is the employer of such security guards and who are its employees and are paid wages by the appellant. Merely because the client pays money under a contract to the appellant and in turn the appellant pays the wages of such security guards from such contractual amount received by it, it does not make the client the employer of the security guard nor do the security guards constitute employees of the client. The appellant therefore is squarely covered by the Notification dated 17.05.1971.10. The appellant never made available the statutory registers under the Act of 2005 to the authorities under the EPF Act. In fact, we have no hesitation in holding that it actually withheld relevant papers. This coupled with the letter dated 03.04.2001 written by the appellant, the appellants balance sheet seized for the financial years 2003-04, 2004-05, 2005-06 and 2006-07 showing payment of wages running into lacs, necessarily and only leads to the irresistible conclusion that the appellant has more than 20 employees on its roles. The provisions of the Act therefore necessarily apply to it.11. Krantikari Suraksha Rakshak Sanghatana (supra) has no relevance to the present controversy as it concerned to the provision of the Maharashtra Private Security Guards (Regulation of Employment and Welfare) Act, 1981. The applicability of the EPF Act did not fall for consideration there. Saraswath Films (supra) was in the context of the Employees State Insurance Act, 1948 interpreting the term immediate employer, which again has no relevance to the present controversy.12. That the provisions of the EPF Act are applicable to a private security agency engaged in the expert service of providing personnel to its client, if it meets the requirement of the EPF Act. The question is no more res integra evident from the discussions contained in Group 4 Securitas Guarding Ltd. vs. Employees Provident Fund Appellate Tribunal & Ors., 184 (2011) DLT 591 , G4S Secure Solutions India Pvt. Ltd. vs. The Regional Provident Fund Commissioner-I and Ors., ILR 2018 Karnataka 2527, Orissa State Beverages Corporation Limited vs. Regional Provident Fund Commissioner & Ors., 2016 LLR 413, Roma Henney Security Services Private Limited vs. Central Board of Trustees, EPF Organisation, 2012 SCC OnLine Del 3597, Sarvesh Security Services Private Limited vs. University of Delhi, 2017 SCC OnLine Del 12209. | 0 | 1,887 | 487 | ### Instruction:
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:
that the provisions of the EPF Act applied to the appellant. The Assistant Provident Fund Commissioner on 07.03.2006 on basis of the seized documents opined that the appellant had 79 employees as on 03.04.2001 allotting Code No. UP/39076, requiring the appellant to deposit the necessary contributions. The appellant having objected to the same, proceedings were initiated under Section 7A of the EPF Act with due opportunity of defence to the appellant. The appellant failed to submit the attendance register, wage register etc. The Assistant Provident Fund Commissioner on basis of balance sheets seized during raid opined that the appellant had more than twenty employees on its rolls and stood covered by the term expert services such as providing of personnel under the Notification dated 17.05.1971. It also noticed that wages were not paid directly by the clients to the security guards deployed by the appellant but that the payments were made by the clients to the appellant, who in turn disbursed wages to the security guards. The remedy of an appeal before the Tribunal under Section 7-I was bypassed by the appellant instituting the writ petition directly. The High Court declined interference with the conclusion of expert services being rendered by the appellant. A review petition contending that the appellant stood duly registered under the Act of 2005 was also rejected. 8. The Act of 2005 defines a private security agency under Section 2(g) as an organization engaged in the business of providing security services including training to private security guards and providing such guards to any industrial or business undertakings or a company or any other person or property. A licence is mandatory under Section 4 and those security agencies existing since earlier were mandated to obtain such licence within one year of coming into force of the Act. A complete procedure is provided with regard to making of an application for grant of a licence under Section 7, renewal under Section 8 of the Act. The eligibility for appointment as a security guard with such security agency is provided under Section 10 of the Act. Section 11 provides for the condition of the licence and the licence can be cancelled under Section 13. A private security agency under Section 15 is required to maintain a register inter alia with the names, addresses, photographs and salaries of the private security guards and supervisors under its control. The Private Security Agencies Central Model Rules, 2006, framed under the Act of 2005, requires verification by the security agency before employing any person as a security guard or supervisor in the manner prescribed. Proper security training of the person employed is the responsibility of the security agency under Rule 5, and Rule 6 prescribes the standard of physical fitness for security guards. Under Rule 14 the security agency is required to maintain a Register in Form VIII, Part-I of which contains details of the management, Part-II contains the name of guard, his parentage, address, photograph, badge no. and the salary with the date of commencement. Part III contains the name of the customer, address, the number of guards deployed, date of commencement of duty and date of discontinuance. Part IV contains the name of the security guard/supervisor, address of the place of duty, if accompanied by arms, date and time of commencement of duty and date and time of end of duty. 9. We have no doubt in our mind that the appellant is engaged in the specialised and expert services of providing trained and efficient security guards to its clients on payment basis. The contention that the appellant merely facilitated in providing Chowkidars cannot be countenanced. The provisions of the Act of 2005 make it manifest that the appellant is the employer of such security guards and who are its employees and are paid wages by the appellant. Merely because the client pays money under a contract to the appellant and in turn the appellant pays the wages of such security guards from such contractual amount received by it, it does not make the client the employer of the security guard nor do the security guards constitute employees of the client. The appellant therefore is squarely covered by the Notification dated 17.05.1971. 10. The appellant never made available the statutory registers under the Act of 2005 to the authorities under the EPF Act. In fact, we have no hesitation in holding that it actually withheld relevant papers. This coupled with the letter dated 03.04.2001 written by the appellant, the appellants balance sheet seized for the financial years 2003-04, 2004-05, 2005-06 and 2006-07 showing payment of wages running into lacs, necessarily and only leads to the irresistible conclusion that the appellant has more than 20 employees on its roles. The provisions of the Act therefore necessarily apply to it. 11. Krantikari Suraksha Rakshak Sanghatana (supra) has no relevance to the present controversy as it concerned to the provision of the Maharashtra Private Security Guards (Regulation of Employment and Welfare) Act, 1981. The applicability of the EPF Act did not fall for consideration there. Saraswath Films (supra) was in the context of the Employees State Insurance Act, 1948 interpreting the term immediate employer, which again has no relevance to the present controversy. 12. That the provisions of the EPF Act are applicable to a private security agency engaged in the expert service of providing personnel to its client, if it meets the requirement of the EPF Act. The question is no more res integra evident from the discussions contained in Group 4 Securitas Guarding Ltd. vs. Employees Provident Fund Appellate Tribunal & Ors., 184 (2011) DLT 591 , G4S Secure Solutions India Pvt. Ltd. vs. The Regional Provident Fund Commissioner-I and Ors., ILR 2018 Karnataka 2527, Orissa State Beverages Corporation Limited vs. Regional Provident Fund Commissioner & Ors., 2016 LLR 413, Roma Henney Security Services Private Limited vs. Central Board of Trustees, EPF Organisation, 2012 SCC OnLine Del 3597, Sarvesh Security Services Private Limited vs. University of Delhi, 2017 SCC OnLine Del 12209.
### Response:
0
### Explanation:
9. We have no doubt in our mind that the appellant is engaged in the specialised and expert services of providing trained and efficient security guards to its clients on payment basis. The contention that the appellant merely facilitated in providing Chowkidars cannot be countenanced. The provisions of the Act of 2005 make it manifest that the appellant is the employer of such security guards and who are its employees and are paid wages by the appellant. Merely because the client pays money under a contract to the appellant and in turn the appellant pays the wages of such security guards from such contractual amount received by it, it does not make the client the employer of the security guard nor do the security guards constitute employees of the client. The appellant therefore is squarely covered by the Notification dated 17.05.1971.10. The appellant never made available the statutory registers under the Act of 2005 to the authorities under the EPF Act. In fact, we have no hesitation in holding that it actually withheld relevant papers. This coupled with the letter dated 03.04.2001 written by the appellant, the appellants balance sheet seized for the financial years 2003-04, 2004-05, 2005-06 and 2006-07 showing payment of wages running into lacs, necessarily and only leads to the irresistible conclusion that the appellant has more than 20 employees on its roles. The provisions of the Act therefore necessarily apply to it.11. Krantikari Suraksha Rakshak Sanghatana (supra) has no relevance to the present controversy as it concerned to the provision of the Maharashtra Private Security Guards (Regulation of Employment and Welfare) Act, 1981. The applicability of the EPF Act did not fall for consideration there. Saraswath Films (supra) was in the context of the Employees State Insurance Act, 1948 interpreting the term immediate employer, which again has no relevance to the present controversy.12. That the provisions of the EPF Act are applicable to a private security agency engaged in the expert service of providing personnel to its client, if it meets the requirement of the EPF Act. The question is no more res integra evident from the discussions contained in Group 4 Securitas Guarding Ltd. vs. Employees Provident Fund Appellate Tribunal & Ors., 184 (2011) DLT 591 , G4S Secure Solutions India Pvt. Ltd. vs. The Regional Provident Fund Commissioner-I and Ors., ILR 2018 Karnataka 2527, Orissa State Beverages Corporation Limited vs. Regional Provident Fund Commissioner & Ors., 2016 LLR 413, Roma Henney Security Services Private Limited vs. Central Board of Trustees, EPF Organisation, 2012 SCC OnLine Del 3597, Sarvesh Security Services Private Limited vs. University of Delhi, 2017 SCC OnLine Del 12209.
|
Western India Paper and Board Mills Private Limited Vs. S Mumbai Mazdoor Sabha | ) THE workers raised demands which, amongst others, were in respect of a claim for additional compensatory payment for work done on Sundays and holidays in the form of double the daily wages for working on those days and a lunch allowance. As there was no conciliation between the parties, the parties made a joint application to the State Government for making a reference for adjudication of the dispute to the proper authorities. Reference was accordingly made by an order dated 7th May, 1964 to the Industrial Tribunal. A statement of claim was filed by the union which contained, among other demands, demand No. 2 in respect of additional compensatory payment for work on Sundays and holidays. The petitioner filed a written statement in reply. In so far as this demand is concerned, the petitioners defence was as follows :"12. With reference to para 7 of the statement of claims, it is submitted that the Union has demanded additional compensatory payment for working on Sundays and bank holidays. The company perforce is compelled to work for all the days of the month and this practice is prevalent in this company since a very long time. It is submitted that the provisions of the factories Act, 1948, do permit the company to take the work on Sundays from the workers and grant them compensatory holidays. It is submitted that there is nothing illegal or unjustified about taking work from the workers on Sundays and holidays. It is submitted that there is no inconvenience or hardship either caused or entailed on the workmen as the workmen are supposed to work six days or 48 hours in a week for which they are fully paid and there is no obligation on either side. It is submitted that element of compensation as alleged is absent as the workers are not made to work for all the 7 days in a week and not denied their weekly off. The only thing looking to the nature of the company done is that the workers are granted weekly offs by rotation instead of one fixed day. It is submitted that there is no justification for this demand and, therefore, this demand should be rejected. "( 3 ) WE are concerned in this petition only with respect to the award concerned in respect of this demand. The learned Member of the Industrial Tribunal deals with it in para 4 of the award. The tribunal observes that it could not be disputed that the workmen, who are called for work on sundays and holidays when other factories, companies and workshops are closed are put to a little inconvenience and hardship and they cannot get their lunch or food from their homes and their other arrangements are also disturbed. The workmen, in the opinion of the Tribunal, could not however make a grievance of working on these days as they get a compensatory holiday. The tribunal, however, thought that they were entitled to additional wages for the work done on sundays and holidays. Then a reference is made to certain decision of the Tribunal in which awards were passed granting such compensatory payments or additional payment for work on sundays and holidays.( 4 ) THE contention of the petitioner is that the Tribunal has failed to appreciate the method of work in their concern. This concern has no common holiday in the week for all workers and it has to work on all the days of the mouth. As pointed out in their written statement, the company is compelled to work for all the days of the month and that this practice is prevalent in the company for a very long time. What this means in practice is that only some of the workmen by their turn are required to work on Sundays and for which they get a compensatory holiday in the week, which is not a Sunday. But it does not mean, as far as we can see, that on a common holiday, i. e. , a particular day which is a holiday for all the workers, any of the workers are called for extra work. Where there is a common holiday and some workers are called for work on that common holiday, the Tribunals have taken the view that in such a case the worker so called on duty is entitled to some compensation; it may be by way of additional full wage for that day or some other benefit. ( 5 ) A perusal of the decisions of the Tribunal, to which reference is made in the order, will show that in all those cases there was a common holiday declared for all the workers, and the claim was restricted to those workmen who were called on work on common holidays or Sundays which were common weekly offs for all the workmen. This not being the case in the instant case, we fail to see why the workers because the working day happens be Sunday or, in other words, their weekly holiday does not happen to be a Sunday, should claim a special allowance or compensation for working on a Sunday or a bank holiday. In view of the system of work which is prevalent in this concern, it is obvious that every worker gets, by turn, a weekly holiday; sometimes it may fall on Sunday, and sometimes it may be some other day of the week. To entertain the claim of the workers for an extra payment for working on Sundays or bank holidays would introduce an unhealthy principle, because there is no good reason why other workers who do not work on that particular Sunday as they do not work on other holidays are to be deprived of that benefit. We do not find any principle even of social justice in granting such allowance for the workers only because they called to work on Sundays when a Sunday is their normal working day according to the arrangement under S. 52 of the Factories Act. | 1[ds]( 5 ) A perusal of the decisions of the Tribunal, to which reference is made in the order, will show that in all those cases there was a common holiday declared for all the workers, and the claim was restricted to those workmen who were called on work on common holidays or Sundays which were common weekly offs for all the workmen. This not being the case in the instant case, we fail to see why the workers because the working day happens be Sunday or, in other words, their weekly holiday does not happen to be a Sunday, should claim a special allowance or compensation for working on a Sunday or a bank holiday. In view of the system of work which is prevalent in this concern, it is obvious that every worker gets, by turn, a weekly holiday; sometimes it may fall on Sunday, and sometimes it may be some other day of the week. To entertain the claim of the workers for an extra payment for working on Sundays or bank holidays would introduce an unhealthy principle, because there is no good reason why other workers who do not work on that particular Sunday as they do not work on other holidays are to be deprived of that benefit. We do not find any principle even of social justice in granting such allowance for the workers only because they called to work on Sundays when a Sunday is their normal working day according to the arrangement under S. 52 of the Factories Act. | 1 | 1,176 | 279 | ### 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 workers raised demands which, amongst others, were in respect of a claim for additional compensatory payment for work done on Sundays and holidays in the form of double the daily wages for working on those days and a lunch allowance. As there was no conciliation between the parties, the parties made a joint application to the State Government for making a reference for adjudication of the dispute to the proper authorities. Reference was accordingly made by an order dated 7th May, 1964 to the Industrial Tribunal. A statement of claim was filed by the union which contained, among other demands, demand No. 2 in respect of additional compensatory payment for work on Sundays and holidays. The petitioner filed a written statement in reply. In so far as this demand is concerned, the petitioners defence was as follows :"12. With reference to para 7 of the statement of claims, it is submitted that the Union has demanded additional compensatory payment for working on Sundays and bank holidays. The company perforce is compelled to work for all the days of the month and this practice is prevalent in this company since a very long time. It is submitted that the provisions of the factories Act, 1948, do permit the company to take the work on Sundays from the workers and grant them compensatory holidays. It is submitted that there is nothing illegal or unjustified about taking work from the workers on Sundays and holidays. It is submitted that there is no inconvenience or hardship either caused or entailed on the workmen as the workmen are supposed to work six days or 48 hours in a week for which they are fully paid and there is no obligation on either side. It is submitted that element of compensation as alleged is absent as the workers are not made to work for all the 7 days in a week and not denied their weekly off. The only thing looking to the nature of the company done is that the workers are granted weekly offs by rotation instead of one fixed day. It is submitted that there is no justification for this demand and, therefore, this demand should be rejected. "( 3 ) WE are concerned in this petition only with respect to the award concerned in respect of this demand. The learned Member of the Industrial Tribunal deals with it in para 4 of the award. The tribunal observes that it could not be disputed that the workmen, who are called for work on sundays and holidays when other factories, companies and workshops are closed are put to a little inconvenience and hardship and they cannot get their lunch or food from their homes and their other arrangements are also disturbed. The workmen, in the opinion of the Tribunal, could not however make a grievance of working on these days as they get a compensatory holiday. The tribunal, however, thought that they were entitled to additional wages for the work done on sundays and holidays. Then a reference is made to certain decision of the Tribunal in which awards were passed granting such compensatory payments or additional payment for work on sundays and holidays.( 4 ) THE contention of the petitioner is that the Tribunal has failed to appreciate the method of work in their concern. This concern has no common holiday in the week for all workers and it has to work on all the days of the mouth. As pointed out in their written statement, the company is compelled to work for all the days of the month and that this practice is prevalent in the company for a very long time. What this means in practice is that only some of the workmen by their turn are required to work on Sundays and for which they get a compensatory holiday in the week, which is not a Sunday. But it does not mean, as far as we can see, that on a common holiday, i. e. , a particular day which is a holiday for all the workers, any of the workers are called for extra work. Where there is a common holiday and some workers are called for work on that common holiday, the Tribunals have taken the view that in such a case the worker so called on duty is entitled to some compensation; it may be by way of additional full wage for that day or some other benefit. ( 5 ) A perusal of the decisions of the Tribunal, to which reference is made in the order, will show that in all those cases there was a common holiday declared for all the workers, and the claim was restricted to those workmen who were called on work on common holidays or Sundays which were common weekly offs for all the workmen. This not being the case in the instant case, we fail to see why the workers because the working day happens be Sunday or, in other words, their weekly holiday does not happen to be a Sunday, should claim a special allowance or compensation for working on a Sunday or a bank holiday. In view of the system of work which is prevalent in this concern, it is obvious that every worker gets, by turn, a weekly holiday; sometimes it may fall on Sunday, and sometimes it may be some other day of the week. To entertain the claim of the workers for an extra payment for working on Sundays or bank holidays would introduce an unhealthy principle, because there is no good reason why other workers who do not work on that particular Sunday as they do not work on other holidays are to be deprived of that benefit. We do not find any principle even of social justice in granting such allowance for the workers only because they called to work on Sundays when a Sunday is their normal working day according to the arrangement under S. 52 of the Factories Act.
### Response:
1
### Explanation:
( 5 ) A perusal of the decisions of the Tribunal, to which reference is made in the order, will show that in all those cases there was a common holiday declared for all the workers, and the claim was restricted to those workmen who were called on work on common holidays or Sundays which were common weekly offs for all the workmen. This not being the case in the instant case, we fail to see why the workers because the working day happens be Sunday or, in other words, their weekly holiday does not happen to be a Sunday, should claim a special allowance or compensation for working on a Sunday or a bank holiday. In view of the system of work which is prevalent in this concern, it is obvious that every worker gets, by turn, a weekly holiday; sometimes it may fall on Sunday, and sometimes it may be some other day of the week. To entertain the claim of the workers for an extra payment for working on Sundays or bank holidays would introduce an unhealthy principle, because there is no good reason why other workers who do not work on that particular Sunday as they do not work on other holidays are to be deprived of that benefit. We do not find any principle even of social justice in granting such allowance for the workers only because they called to work on Sundays when a Sunday is their normal working day according to the arrangement under S. 52 of the Factories Act.
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Life Insurance Corporation Of India Vs. India Automobiles And Company | Section 64-C of the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948, which ran as follows :- "64-C. Finality of orders passed under this Act - (1) Any order passed by the Government or other authority under this Act in respect of matters to be determined for the ,purposes of this Act shall, subject only to any appeal or revision provided bv or under this Act, be final. (2) No such order shall be liable to be questioned in any Court of law. The State Governments plea was rejected by the High Court. In appeal, the State contended before this Court that every refusal of a ryotwari patta by a Settlement Officer in an inquiry under Section 11 involves a decision on his part that either the applicant is not a ryot or the land is not ryoti land; in the instant cases it was the latter and such decision on the nature or character of the land has been given a finality under Section 64-C which cannot be questioned in a Court of law. Therefore, it was urged that the civil Courts jurisdiction to adjudicate upon the nature or character of the suit lands must be held to have been excluded or ousted. After discussing several decisions in regard to the exclusion of a civil Courts jurisdiction as well as the provisions of the Act, the Court pointed out that the terms of Section 64-C alone will not be decisive on the point of ouster of the civil Courts jurisdiction. The observations made by the Court in paras 13 and 14 have relevance to the present case and need not be set out here in extenso. ( 23 ) WE are of opinion, in the light of the decided cases referred to above, that the contention on behalf of the respondents has to be accepted. We are concerned with the jurisdiction of a civil Court. The extensive jurisdiction conferred on civil courts under S. 9 of the Code of Civil Procedure should not be curtailed without a specific statutory warrant or except on some clear principle. There is nothing in the Tamil Nadu Rent Control Act which,in any way, takes away, or narrows down, the civil Courts jurisdiction as, for example, there is, in the Delhi Rent Control Act (S. 50 ). As to principle, whether we look at it on the analogy of res judicata or adopt the approach of Sri Iyer as to whether the order in the earlier proceedings is to be treated as an order that is null and void or merely one that is valid until set aside, the answer has to turn on the true nature and scope of the jurisdiction conferred on the. Rent Controller under the Act. Is it possible, we have to ask ourselves, having regard to the context, scheme and terms of the legislation, that the statute could have envisaged the Rent Controller (and the authorities to whom appeal or revision could be preferred from his orders) to be final authorities to adjudicate on issues of title also ? The answer, in our opinion, has to be in the negative. Section 4 of the Rent Control Act, as already pointed out, provides only a machinery for fixation of fair rent in respect of certain premises. It is the quantum of fair rent that arises for determination by the Rent Controller. There is no doubt that, since an application for this purpose cannot lie except at the instance of a landlord or a tenant, the Rent Controller has to deal with this incidentally but this is not one of the direct issues before the Rent Controller. If, and only if, this relationship exists between the parties, the Rent Controller steps in for a limited purpose to determine what the fair rent is and then fades out of the picture. Where a fair rent is fixed by, a Controller, the Rent Control Act does not provide for a machinery for recovery of the amount. The amount has to be recovered by the landlord only by recourse to a civil Court. This gives an indication that the determination of the relationship that gives rise to the application is also not conclusive. This is indeed made clear by the provisions relating to eviction. We have already referred to the effect of the provisons of S. 10 (2) (vii) read with the proviso to S. 1 0 (1) and pointed out how jurisdiction to decide questions of title is denied to the Rent Controller. The position cannot be different under S. 4. Having regard to the much narrower scope of S. 4, it would be anomalous to read a wider jurisdiction to the Rent Controller thereunder than under S. 10. In our opinion, on a proper construction of the Rent Control Act, the question on which the jurisdiction of the civil Court is excluded is only the determination as to the fair rent of the premises. If the civil Court in this case had come to the conclusion that there is a relationship of a landlord and a tenant and that the LIC was entitled to recover the rent from the tenants, it will have to pass a decree in favour of the LIC on the basis of the fair rent fixed by the Rent Controller. It will not be open to the civil Court to re-determine the rent payable ,by the tenant to the landlord because that is a matter squarely and exclusively within the jurisdiction of the Rent Controller and, therefore, impliedly excluded from the purview of the civil Court. But his decision is not final on the issue that opens up his jurisdiction and cannot preclude an owner from contending, in a civil Court, that he should not be asked to pay rent for his own property to some one else. ( 24 ) FOR the reasons mentioned above, we are of the opinion that the High Court reached the correct conclusion and that this appeal has to fail. | 0[ds]( 11 ) SO far as the first question is concerned, we have no doubt that the Division Bench of the High Court has come to the correct conclusion. In our view, the conclusion of the learned single Judge that the lease Ex. P-1, executed by the co-owners of the property in favour of one of them was invalid was erroneous. Section 5 ofthe Transfer of Property Act, 1882, clearly envisages transfers of property by a person to , one or more living persons or to himself, or to himself and one or more other living persons". Whatever may be the position, in spite of this provision, in respect of a purported transfer by a person to himself alone (which is very often the position in the case of trusts) - which was considered by the House of Lords inRye v. Rye (1962 AC, there is no reason to hold that a contract between a person with himself and others is invalid. The Division Bench, we think, has rightly distinguished the decisions in Girish Chandra v. Srinath (3 CLJ 141) andRye v. Rye (1962 AC496 ). The observations of Lord Denning, extracted by the learned Judges are quite apposite to the situation in the present case( 12 ) ONCE this objection is out of the way, the question is whether the constructions put upon the leased land by the lessees formed part of the property conveyed to the L. I. C. Sri Parasaran pointed out that they did not and drew our attention to subsequent correspondence between the parties to show that even the L. I. C. had not claimed at any stage any rent in respect of the superstructures (apart from the contractual rent, which was in respect of the land) and that both parties have -all along been proceeding on the footing that the superstructure on item 1 belonged to the lessees. This appears to be correct but it cannot be conclusive of the rights of the parties. We have therefore gone carefully into the terms of Ex. P. 1 and Ex. P 3. They clearly make out that the superstructures put up by the lessee under Ex. P-1 were not included in the property conveyed under the terms of Ex. P-3 and that, whatever may be the rights of the LIC to evict the tenant with liberty to demolish the superstructure on the termination of the lease, it had no property in the superstructure so long as the lease subsisted. We, therefore, answer the first question posed by us in the affirmative( 23 ) WE are of opinion, in the light of the decided cases referred to above, that the contention on behalf of the respondents has to be accepted. We are concerned with the jurisdiction of a civil Court. The extensive jurisdiction conferred on civil courts under S. 9 of theCode of Civil Procedure should not be curtailed without a specific statutory warrant or except on some clear principle. There is nothing in the Tamil Nadu Rent Control Act which,in any way, takes away, or narrows down, the civil Courts jurisdiction as, for example, there is, in the Delhi Rent Control Act (S. 50 ). As to principle, whether we look at it on the analogy of res judicata or adopt the approach of Sri Iyer as to whether the order in the earlier proceedings is to be treated as an order that is null and void or merely one that is valid until set aside, the answer has to turn on the true nature and scope of the jurisdiction conferred on the. Rent Controller under the Act. Is it possible, we have to ask ourselves, having regard to the context, scheme and terms of the legislation, that the statute could have envisaged the Rent Controller (and the authorities to whom appeal or revision could be preferred from his orders) to be final authorities to adjudicate on issues of title also ? The answer, in our opinion, has to be in the negative. Section 4 of the Rent Control Act, as already pointed out, provides only a machinery for fixation of fair rent in respect of certain premises. It is the quantum of fair rent that arises for determination by the Rent Controller. There is no doubt that, since an application for this purpose cannot lie except at the instance of a landlord or a tenant, the Rent Controller has to deal with this incidentally but this is not one of the direct issues before the Rent Controller. If, and only if, this relationship exists between the parties, the Rent Controller steps in for a limited purpose to determine what the fair rent is and then fades out of the picture. Where a fair rent is fixed by, a Controller, the Rent Control Act does not provide for a machinery for recovery of the amount. The amount has to be recovered by the landlord only by recourse to a civil Court. This gives an indication that the determination of the relationship that gives rise to the application is also not conclusive. This is indeed made clear by the provisions relating to eviction. We have already referred to the effect of the provisons of S. 10 (2) (vii) read with the proviso to S. 1 0 (1) and pointed out how jurisdiction to decide questions of title is denied to the Rent Controller. The position cannot be different under S. 4. Having regard to the much narrower scope of S. 4, it would be anomalous to read a wider jurisdiction to the Rent Controller thereunder than under S. 10. In our opinion, on a proper construction of the Rent Control Act, the question on which the jurisdiction of the civil Court is excluded is only the determination as to the fair rent of the premises. If the civil Court in this case had come to the conclusion that there is a relationship of a landlord and a tenant and that the LIC was entitled to recover the rent from the tenants, it will have to pass a decree in favour of the LIC on the basis of the fair rent fixed by the Rent Controller. It will not be open to the civil Court to re-determine the rent payable ,by the tenant to the landlord because that is a matter squarely and exclusively within the jurisdiction of the Rent Controller and, therefore, impliedly excluded from the purview of the civil Court. But his decision is not final on the issue that opens up his jurisdiction and cannot preclude an owner from contending, in a civil Court, that he should not be asked to pay rent for his own property to some one else. | 0 | 11,358 | 1,234 | ### 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:
Section 64-C of the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948, which ran as follows :- "64-C. Finality of orders passed under this Act - (1) Any order passed by the Government or other authority under this Act in respect of matters to be determined for the ,purposes of this Act shall, subject only to any appeal or revision provided bv or under this Act, be final. (2) No such order shall be liable to be questioned in any Court of law. The State Governments plea was rejected by the High Court. In appeal, the State contended before this Court that every refusal of a ryotwari patta by a Settlement Officer in an inquiry under Section 11 involves a decision on his part that either the applicant is not a ryot or the land is not ryoti land; in the instant cases it was the latter and such decision on the nature or character of the land has been given a finality under Section 64-C which cannot be questioned in a Court of law. Therefore, it was urged that the civil Courts jurisdiction to adjudicate upon the nature or character of the suit lands must be held to have been excluded or ousted. After discussing several decisions in regard to the exclusion of a civil Courts jurisdiction as well as the provisions of the Act, the Court pointed out that the terms of Section 64-C alone will not be decisive on the point of ouster of the civil Courts jurisdiction. The observations made by the Court in paras 13 and 14 have relevance to the present case and need not be set out here in extenso. ( 23 ) WE are of opinion, in the light of the decided cases referred to above, that the contention on behalf of the respondents has to be accepted. We are concerned with the jurisdiction of a civil Court. The extensive jurisdiction conferred on civil courts under S. 9 of the Code of Civil Procedure should not be curtailed without a specific statutory warrant or except on some clear principle. There is nothing in the Tamil Nadu Rent Control Act which,in any way, takes away, or narrows down, the civil Courts jurisdiction as, for example, there is, in the Delhi Rent Control Act (S. 50 ). As to principle, whether we look at it on the analogy of res judicata or adopt the approach of Sri Iyer as to whether the order in the earlier proceedings is to be treated as an order that is null and void or merely one that is valid until set aside, the answer has to turn on the true nature and scope of the jurisdiction conferred on the. Rent Controller under the Act. Is it possible, we have to ask ourselves, having regard to the context, scheme and terms of the legislation, that the statute could have envisaged the Rent Controller (and the authorities to whom appeal or revision could be preferred from his orders) to be final authorities to adjudicate on issues of title also ? The answer, in our opinion, has to be in the negative. Section 4 of the Rent Control Act, as already pointed out, provides only a machinery for fixation of fair rent in respect of certain premises. It is the quantum of fair rent that arises for determination by the Rent Controller. There is no doubt that, since an application for this purpose cannot lie except at the instance of a landlord or a tenant, the Rent Controller has to deal with this incidentally but this is not one of the direct issues before the Rent Controller. If, and only if, this relationship exists between the parties, the Rent Controller steps in for a limited purpose to determine what the fair rent is and then fades out of the picture. Where a fair rent is fixed by, a Controller, the Rent Control Act does not provide for a machinery for recovery of the amount. The amount has to be recovered by the landlord only by recourse to a civil Court. This gives an indication that the determination of the relationship that gives rise to the application is also not conclusive. This is indeed made clear by the provisions relating to eviction. We have already referred to the effect of the provisons of S. 10 (2) (vii) read with the proviso to S. 1 0 (1) and pointed out how jurisdiction to decide questions of title is denied to the Rent Controller. The position cannot be different under S. 4. Having regard to the much narrower scope of S. 4, it would be anomalous to read a wider jurisdiction to the Rent Controller thereunder than under S. 10. In our opinion, on a proper construction of the Rent Control Act, the question on which the jurisdiction of the civil Court is excluded is only the determination as to the fair rent of the premises. If the civil Court in this case had come to the conclusion that there is a relationship of a landlord and a tenant and that the LIC was entitled to recover the rent from the tenants, it will have to pass a decree in favour of the LIC on the basis of the fair rent fixed by the Rent Controller. It will not be open to the civil Court to re-determine the rent payable ,by the tenant to the landlord because that is a matter squarely and exclusively within the jurisdiction of the Rent Controller and, therefore, impliedly excluded from the purview of the civil Court. But his decision is not final on the issue that opens up his jurisdiction and cannot preclude an owner from contending, in a civil Court, that he should not be asked to pay rent for his own property to some one else. ( 24 ) FOR the reasons mentioned above, we are of the opinion that the High Court reached the correct conclusion and that this appeal has to fail.
### Response:
0
### Explanation:
to himself alone (which is very often the position in the case of trusts) - which was considered by the House of Lords inRye v. Rye (1962 AC, there is no reason to hold that a contract between a person with himself and others is invalid. The Division Bench, we think, has rightly distinguished the decisions in Girish Chandra v. Srinath (3 CLJ 141) andRye v. Rye (1962 AC496 ). The observations of Lord Denning, extracted by the learned Judges are quite apposite to the situation in the present case( 12 ) ONCE this objection is out of the way, the question is whether the constructions put upon the leased land by the lessees formed part of the property conveyed to the L. I. C. Sri Parasaran pointed out that they did not and drew our attention to subsequent correspondence between the parties to show that even the L. I. C. had not claimed at any stage any rent in respect of the superstructures (apart from the contractual rent, which was in respect of the land) and that both parties have -all along been proceeding on the footing that the superstructure on item 1 belonged to the lessees. This appears to be correct but it cannot be conclusive of the rights of the parties. We have therefore gone carefully into the terms of Ex. P. 1 and Ex. P 3. They clearly make out that the superstructures put up by the lessee under Ex. P-1 were not included in the property conveyed under the terms of Ex. P-3 and that, whatever may be the rights of the LIC to evict the tenant with liberty to demolish the superstructure on the termination of the lease, it had no property in the superstructure so long as the lease subsisted. We, therefore, answer the first question posed by us in the affirmative( 23 ) WE are of opinion, in the light of the decided cases referred to above, that the contention on behalf of the respondents has to be accepted. We are concerned with the jurisdiction of a civil Court. The extensive jurisdiction conferred on civil courts under S. 9 of theCode of Civil Procedure should not be curtailed without a specific statutory warrant or except on some clear principle. There is nothing in the Tamil Nadu Rent Control Act which,in any way, takes away, or narrows down, the civil Courts jurisdiction as, for example, there is, in the Delhi Rent Control Act (S. 50 ). As to principle, whether we look at it on the analogy of res judicata or adopt the approach of Sri Iyer as to whether the order in the earlier proceedings is to be treated as an order that is null and void or merely one that is valid until set aside, the answer has to turn on the true nature and scope of the jurisdiction conferred on the. Rent Controller under the Act. Is it possible, we have to ask ourselves, having regard to the context, scheme and terms of the legislation, that the statute could have envisaged the Rent Controller (and the authorities to whom appeal or revision could be preferred from his orders) to be final authorities to adjudicate on issues of title also ? The answer, in our opinion, has to be in the negative. Section 4 of the Rent Control Act, as already pointed out, provides only a machinery for fixation of fair rent in respect of certain premises. It is the quantum of fair rent that arises for determination by the Rent Controller. There is no doubt that, since an application for this purpose cannot lie except at the instance of a landlord or a tenant, the Rent Controller has to deal with this incidentally but this is not one of the direct issues before the Rent Controller. If, and only if, this relationship exists between the parties, the Rent Controller steps in for a limited purpose to determine what the fair rent is and then fades out of the picture. Where a fair rent is fixed by, a Controller, the Rent Control Act does not provide for a machinery for recovery of the amount. The amount has to be recovered by the landlord only by recourse to a civil Court. This gives an indication that the determination of the relationship that gives rise to the application is also not conclusive. This is indeed made clear by the provisions relating to eviction. We have already referred to the effect of the provisons of S. 10 (2) (vii) read with the proviso to S. 1 0 (1) and pointed out how jurisdiction to decide questions of title is denied to the Rent Controller. The position cannot be different under S. 4. Having regard to the much narrower scope of S. 4, it would be anomalous to read a wider jurisdiction to the Rent Controller thereunder than under S. 10. In our opinion, on a proper construction of the Rent Control Act, the question on which the jurisdiction of the civil Court is excluded is only the determination as to the fair rent of the premises. If the civil Court in this case had come to the conclusion that there is a relationship of a landlord and a tenant and that the LIC was entitled to recover the rent from the tenants, it will have to pass a decree in favour of the LIC on the basis of the fair rent fixed by the Rent Controller. It will not be open to the civil Court to re-determine the rent payable ,by the tenant to the landlord because that is a matter squarely and exclusively within the jurisdiction of the Rent Controller and, therefore, impliedly excluded from the purview of the civil Court. But his decision is not final on the issue that opens up his jurisdiction and cannot preclude an owner from contending, in a civil Court, that he should not be asked to pay rent for his own property to some one else.
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Kalpana Vs. Gorakhnath Govinda Dhone | box, the Family Court allowed the petition filed by the husband for grant of divorce on the ground of cruelty after holding that the husband had succeeded in proving his case in that regard. The judgment of the Family Court is challenged by the wife in this family Court appeal.5. Shri Bhangde, the learned counsel for the wife, submitted that the Family Court did not have jurisdiction to entertain and decide the Hindu Marriage Petition filed by the husband. It is submitted that the cause of action did not arise at Nagpur and the husband was not entitled to file the petition in the Family Court at Nagpur. It is stated that the marriage between the parties was solemnized in a Temple in Kolhapur district and the parties last resided together at Belgaum. It is stated that it is clearly mentioned by the husband in the Hindu marriage Petition that the wife refused to join the Company of the husband at Nagpur and had never joined him at Nagpur after his transfer. It is submitted that it was necessary for the Family Court to have framed the issue of jurisdiction of the Family Court. It is stated that the Family Court has not decided the issue of jurisdiction, therefore, it is necessary to remand the matter to the Family Court for framing the issue of jurisdiction and deciding the same.6. Shri Purohit, the learned counsel for the husband, submitted that the wife failed to remain present before the Family Court at Nagpur despite opportunity and, therefore, the Family Court was justified in granting a decree of divorce in favour of the husband, after considering the evidence that remained unchallenged. It is submitted that in paragraph 6 of the judgment of the Family Court, some of the contents of the legal notice dated 18.02.2011 are reproduced and the contents would show that the wife had left the husband 1-1/2 months before the issuance of the legal notice. It is stated that it is clear from the contents of the notice that the wife had resided at Nagpur and had left the husband only a month and half before the issuance of the legal notice dated 18.02.2011.7. On hearing the learned counsel for the parties, it appears that the following points arise for determination in this family Court appeal-I) Whether it was necessary for the Family Court to frame the issue of jurisdiction when a plea of absence of jurisdiction was specifically raised by the wife in her written statementII) Whether the judgment of the Family Court is just and properIII) What order8. To answer the aforesaid points for determination, it would be necessary to consider the pleadings of the husband in the Hindu Marriage Petition. It is clearly pleaded by the husband in the Hindu Marriage Petition that after the marriage, the parties started residing at Belgaum in the matrimonial home. It is further pleaded by the husband that after the husband was transferred from Belgaum to Nagpur, the wife did not come to Nagpur and refused to join his company at Nagpur. Since the marriage was not solemnized at Nagpur and since, according to the husband, the wife refused to join the company of the husband at Nagpur, the wife raised a plea of jurisdiction in the written statement. According to the wife since no part of cause of action for filing the Hindu Marriage Petition arose at Nagpur, the Family Court at Nagpur did not have jurisdiction to entertain and decide the Hindu Marriage Petition. It appears that despite the specific objection of the wife that the Hindu Marriage Petition could not be entertained in the Family Court, Nagpur, the Family Court, Nagpur did not frame the issue in regard to the jurisdiction of the Family Court, Nagpur. Without framing the issue of jurisdiction, the Family Court proceeded to decide the petition on an assumption that it had jurisdiction to decide the Hindu Marriage Petition filed by the husband. It is rightly stated on behalf of the wife that it was necessary for the Family Court to have framed the issue of jurisdiction and if the same was answered in favour of the husband, then only the Family Court ought to have proceeded to decide the Hindu Marriage Petition, on merits. We find on a perusal of the pleadings of the parties that it was necessary for the Family Court to have framed the issue of jurisdiction. The Family Court committed an error in not framing the issue of jurisdiction and proceeding to decide the Hindu Marriage Petition, on merits.The submission made on behalf of the husband that since the Family Court referred to the legal notice in paragraph 6 of the judgment and the contents of the notice depict that the wife was residing with the husband at Nagpur and, hence, the Family Court was justified in entertaining and deciding the Hindu Marriage Petition, is liable to be rejected. Firstly, it was necessary for the Family Court to frame the issue of jurisdiction and then permit the parties to tender evidence, both, oral and documentary, on the issue of jurisdiction. It is a well settled position of law that the jurisdiction of the Court cannot be decided on the written statement or the documents tendered by the parties. The jurisdiction of the Court has to be necessarily decided on the basis of the pleadings of the plaintiff. It prima-facie appears on the basis of the pleadings in the Hindu Marriage Petition that the wife never joined the company of the husband at Nagpur. In the aforesaid circumstances, it was all the more necessary for the Family Court to frame the issue of jurisdiction. The first point for determination is, therefore, answered in the affirmative and in favour of the wife. Since the issue of jurisdiction was not framed and since the Family Court proceeded to decide the matter without deciding the issue of jurisdiction, the judgment of the Family Court is liable to be quashed and set aside. | 1[ds]The submission made on behalf of the husband that since the Family Court referred to the legal notice in paragraph 6 of the judgment and the contents of the notice depict that the wife was residing with the husband at Nagpur and, hence, the Family Court was justified in entertaining and deciding the Hindu Marriage Petition, is liable to be rejected. Firstly, it was necessary for the Family Court to frame the issue of jurisdiction and then permit the parties to tender evidence, both, oral and documentary, on the issue of jurisdiction. It is a well settled position of law that the jurisdiction of the Court cannot be decided on the written statement or the documents tendered by the parties. The jurisdiction of the Court has to be necessarily decided on the basis of the pleadings of the plaintiff. Itappears on the basis of the pleadings in the Hindu Marriage Petition that the wife never joined the company of the husband at Nagpur. In the aforesaid circumstances, it was all the more necessary for the Family Court to frame the issue of jurisdiction. The first point for determination is, therefore, answered in the affirmative and in favour of the wife. Since the issue of jurisdiction was not framed and since the Family Court proceeded to decide the matter without deciding the issue of jurisdiction, the judgment of the Family Court is liable to be quashed and set aside. | 1 | 1,439 | 262 | ### 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:
box, the Family Court allowed the petition filed by the husband for grant of divorce on the ground of cruelty after holding that the husband had succeeded in proving his case in that regard. The judgment of the Family Court is challenged by the wife in this family Court appeal.5. Shri Bhangde, the learned counsel for the wife, submitted that the Family Court did not have jurisdiction to entertain and decide the Hindu Marriage Petition filed by the husband. It is submitted that the cause of action did not arise at Nagpur and the husband was not entitled to file the petition in the Family Court at Nagpur. It is stated that the marriage between the parties was solemnized in a Temple in Kolhapur district and the parties last resided together at Belgaum. It is stated that it is clearly mentioned by the husband in the Hindu marriage Petition that the wife refused to join the Company of the husband at Nagpur and had never joined him at Nagpur after his transfer. It is submitted that it was necessary for the Family Court to have framed the issue of jurisdiction of the Family Court. It is stated that the Family Court has not decided the issue of jurisdiction, therefore, it is necessary to remand the matter to the Family Court for framing the issue of jurisdiction and deciding the same.6. Shri Purohit, the learned counsel for the husband, submitted that the wife failed to remain present before the Family Court at Nagpur despite opportunity and, therefore, the Family Court was justified in granting a decree of divorce in favour of the husband, after considering the evidence that remained unchallenged. It is submitted that in paragraph 6 of the judgment of the Family Court, some of the contents of the legal notice dated 18.02.2011 are reproduced and the contents would show that the wife had left the husband 1-1/2 months before the issuance of the legal notice. It is stated that it is clear from the contents of the notice that the wife had resided at Nagpur and had left the husband only a month and half before the issuance of the legal notice dated 18.02.2011.7. On hearing the learned counsel for the parties, it appears that the following points arise for determination in this family Court appeal-I) Whether it was necessary for the Family Court to frame the issue of jurisdiction when a plea of absence of jurisdiction was specifically raised by the wife in her written statementII) Whether the judgment of the Family Court is just and properIII) What order8. To answer the aforesaid points for determination, it would be necessary to consider the pleadings of the husband in the Hindu Marriage Petition. It is clearly pleaded by the husband in the Hindu Marriage Petition that after the marriage, the parties started residing at Belgaum in the matrimonial home. It is further pleaded by the husband that after the husband was transferred from Belgaum to Nagpur, the wife did not come to Nagpur and refused to join his company at Nagpur. Since the marriage was not solemnized at Nagpur and since, according to the husband, the wife refused to join the company of the husband at Nagpur, the wife raised a plea of jurisdiction in the written statement. According to the wife since no part of cause of action for filing the Hindu Marriage Petition arose at Nagpur, the Family Court at Nagpur did not have jurisdiction to entertain and decide the Hindu Marriage Petition. It appears that despite the specific objection of the wife that the Hindu Marriage Petition could not be entertained in the Family Court, Nagpur, the Family Court, Nagpur did not frame the issue in regard to the jurisdiction of the Family Court, Nagpur. Without framing the issue of jurisdiction, the Family Court proceeded to decide the petition on an assumption that it had jurisdiction to decide the Hindu Marriage Petition filed by the husband. It is rightly stated on behalf of the wife that it was necessary for the Family Court to have framed the issue of jurisdiction and if the same was answered in favour of the husband, then only the Family Court ought to have proceeded to decide the Hindu Marriage Petition, on merits. We find on a perusal of the pleadings of the parties that it was necessary for the Family Court to have framed the issue of jurisdiction. The Family Court committed an error in not framing the issue of jurisdiction and proceeding to decide the Hindu Marriage Petition, on merits.The submission made on behalf of the husband that since the Family Court referred to the legal notice in paragraph 6 of the judgment and the contents of the notice depict that the wife was residing with the husband at Nagpur and, hence, the Family Court was justified in entertaining and deciding the Hindu Marriage Petition, is liable to be rejected. Firstly, it was necessary for the Family Court to frame the issue of jurisdiction and then permit the parties to tender evidence, both, oral and documentary, on the issue of jurisdiction. It is a well settled position of law that the jurisdiction of the Court cannot be decided on the written statement or the documents tendered by the parties. The jurisdiction of the Court has to be necessarily decided on the basis of the pleadings of the plaintiff. It prima-facie appears on the basis of the pleadings in the Hindu Marriage Petition that the wife never joined the company of the husband at Nagpur. In the aforesaid circumstances, it was all the more necessary for the Family Court to frame the issue of jurisdiction. The first point for determination is, therefore, answered in the affirmative and in favour of the wife. Since the issue of jurisdiction was not framed and since the Family Court proceeded to decide the matter without deciding the issue of jurisdiction, the judgment of the Family Court is liable to be quashed and set aside.
### Response:
1
### Explanation:
The submission made on behalf of the husband that since the Family Court referred to the legal notice in paragraph 6 of the judgment and the contents of the notice depict that the wife was residing with the husband at Nagpur and, hence, the Family Court was justified in entertaining and deciding the Hindu Marriage Petition, is liable to be rejected. Firstly, it was necessary for the Family Court to frame the issue of jurisdiction and then permit the parties to tender evidence, both, oral and documentary, on the issue of jurisdiction. It is a well settled position of law that the jurisdiction of the Court cannot be decided on the written statement or the documents tendered by the parties. The jurisdiction of the Court has to be necessarily decided on the basis of the pleadings of the plaintiff. Itappears on the basis of the pleadings in the Hindu Marriage Petition that the wife never joined the company of the husband at Nagpur. In the aforesaid circumstances, it was all the more necessary for the Family Court to frame the issue of jurisdiction. The first point for determination is, therefore, answered in the affirmative and in favour of the wife. Since the issue of jurisdiction was not framed and since the Family Court proceeded to decide the matter without deciding the issue of jurisdiction, the judgment of the Family Court is liable to be quashed and set aside.
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State Of Punjab Vs. Sant Singh Kanwarjit Singh | Shah, J.1. Sant Singh Kanwarjit Singh - hereinafter called the assessee - is registered as a dealer under the Punjab General Sales Tax Act 1948. The assessee filed returns of the turnover of its business for the quarters ending 30th June, 1962 and 30th September, 1962, but without appending thereto the list of sales to registered dealers as required by R. 30 framed under the Act. The Sales-tax Officer proceeded to make "ex parte assessments" for the two quarters.2. The assessee then moved a petition in the High Court of Punjab for a writ quashing the orders of assessment. A single Judge following the Judgment of the Punjab High Court in Mansa Ram Sushil Kumar v. Assessing Authority, Ludhiana, 1964-15 STC 857 (Punj), quashed the orders of assessment. An appeal by the State of Punjab was summarily dismissed by a Division Bench of the High Court.3. The scheme of levy and assessment of tax under the Act may be briefly noticed. Every dealer whose gross turnover during the year preceding commencement to the Act exceeded the taxable turnover is liable to pay tax on all sales effected after the quarter after the commencement of the Act. Tax is to be levied on the taxable turnover at such rates as the State Government may direct. Tax is payable under the Act in the manner provided and at such intervals as may be prescribed. Section 10 (1). A registered dealer furnishing a return has to pay the amount of tax due according to the return into the Government Treasury.4. The assessing authority may without requiring the presence of the registered dealer or production by him of any evidence hold that the returns furnished are correct and complete, and proceed to assess the amount of tax due from the dealer on the basis of these returns; if the assessing authority is not satisfied with the return he may require the registered dealer to remain present in person or by pleader and to produce evidence on which he may rely upon in support of the return. The Assessing authority may after hearing the evidence as the dealer may produce and such other evidence the Assessing authority may require, assess the amount of tax due from the dealer.5. The scheme is plain. A registered dealer must file return of the turnover in the manner prescribed and at such intervals as may be prescribed. The dealer while submitting the return has also to pay tax according to the return. The Assessing Officer may accept the return or he may call upon the tax payer to explain the turnover, and support it by evidence.6. Under the Act sales-tax is an yearly tax, but the provisions relating to assessment contemplate assessments for periods shorter than a complete year, and for that purpose the tax payers are required by the Act to submit periodical returns of their turnover and to pay tax due thereon.7. In (1964) 15STC 857 (Punj) a Division Bench of the Punjab High Court held that the tax imposed under the Punjab Sales Tax Act may be assessed only at the end of the year and not during the pendency of the year as and when the return is filed, and in the absence of machinery in the Act for making assessment for a period shorter than the year of assessment, the order of assessment of tax for a quarter before the expiry of the assessment year is illegal. In reaching that conclusion the High Court relied upon the Judgment of this Court in M/s. Mathra Parshad and Sons v. State of Punjab, (1962) Suppl (1) SCR 913 = (AIR 1962 SC 745 ). But in Mathra Parshads case (1962) Supp (1) SCR 913 = (AIR 1962 SC 745 ) this Court considered whether an exemption granted by the State Government during the course of the year was applicable to the whole or only a part of the year of assessment. This Court held (Mr. Justice Kapur dissenting) that the exemption operated for the entire financial year. The Court observed that the tax was an yearly tax levied on the taxable turnover of a dealer for the year; it was collected in some cases quarterly, some cases yearly and proceeded to hold that whenever the exemption came in, in the year for which the tax was payable, it exempted sales throughout the year unless notification fixed the date of commencement of the tax. In our judgment the principal of that case has no bearing on the question arising in this case. The Court in Mathra Parshads case, 1962 Supp (1) SCR 913 = (AIR 1962 SC 745 ) merely emphasised that the tax was an annual tax but that did not imply that assessment of tax quarterly was illegal. Adjustment may possibly have to be made when the assessment of the final quarter is made, but the taxing authorities are not debarred from determining and assessing the quarterly turnover of tax. Mansa Rams case, (1964) 15 STC 857 (Punj) has since been overruled by a Full Bench of the Punjab High Court in Om Prakash Rajinder Kumar v. K. K. Opal, ILR (1967) 1 Punj 115 = (AIR 1967 Punj 464) (FB). The Court in that case held that Sales tax may be assessed under Section 11 of the Act on the basis of quarterly returns submitted by the dealer pursuant to the notice served on him under Section 10 (3) before the close of the relevant financial year. | 1[ds]5. The scheme is plain. A registered dealer must file return of the turnover in the manner prescribed and at such intervals as may be prescribed. The dealer while submitting the return has also to pay tax according to the return. The Assessing Officer may accept the return or he may call upon the tax payer to explain the turnover, and support it by evidence.6. Under the Act sales-tax is an yearly tax, but the provisions relating to assessment contemplate assessments for periods shorter than a complete year, and for that purpose the tax payers are required by the Act to submit periodical returns of their turnover and to pay tax duereaching that conclusion the High Court relied upon the Judgment of this Court in M/s. Mathra Parshad and Sons v. State of Punjab, (1962) Suppl (1) SCR 913 = (AIR 1962 SC 745 ). But in Mathra Parshads case (1962) Supp (1) SCR 913 = (AIR 1962 SC 745 ) this Court considered whether an exemption granted by the State Government during the course of the year was applicable to the whole or only a part of the year of assessment. This Court held (Mr. Justice Kapur dissenting) that the exemption operated for the entire financial year. The Court observed that the tax was an yearly tax levied on the taxable turnover of a dealer for the year; it was collected in some cases quarterly, some cases yearly and proceeded to hold that whenever the exemption came in, in the year for which the tax was payable, it exempted sales throughout the year unless notification fixed the date of commencement of the tax. In our judgment the principal of that case has no bearing on the question arising in this case. The Court in Mathra Parshads case, 1962 Supp (1) SCR 913 = (AIR 1962 SC 745 ) merely emphasised that the tax was an annual tax but that did not imply that assessment of tax quarterly was illegal. Adjustment may possibly have to be made when the assessment of the final quarter is made, but the taxing authorities are not debarred from determining and assessing the quarterly turnover of tax. Mansa Rams case, (1964) 15 STC 857 (Punj) has since been overruled by a Full Bench of the Punjab High Court in Om Prakash Rajinder Kumar v. K. K. Opal, ILR (1967) 1 Punj 115 = (AIR 1967 Punj 464) (FB). The Court in that case held that Sales tax may be assessed under Section 11 of the Act on the basis of quarterly returns submitted by the dealer pursuant to the notice served on him under Section 10 (3) before the close of the relevant financial year. | 1 | 1,005 | 508 | ### 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:
Shah, J.1. Sant Singh Kanwarjit Singh - hereinafter called the assessee - is registered as a dealer under the Punjab General Sales Tax Act 1948. The assessee filed returns of the turnover of its business for the quarters ending 30th June, 1962 and 30th September, 1962, but without appending thereto the list of sales to registered dealers as required by R. 30 framed under the Act. The Sales-tax Officer proceeded to make "ex parte assessments" for the two quarters.2. The assessee then moved a petition in the High Court of Punjab for a writ quashing the orders of assessment. A single Judge following the Judgment of the Punjab High Court in Mansa Ram Sushil Kumar v. Assessing Authority, Ludhiana, 1964-15 STC 857 (Punj), quashed the orders of assessment. An appeal by the State of Punjab was summarily dismissed by a Division Bench of the High Court.3. The scheme of levy and assessment of tax under the Act may be briefly noticed. Every dealer whose gross turnover during the year preceding commencement to the Act exceeded the taxable turnover is liable to pay tax on all sales effected after the quarter after the commencement of the Act. Tax is to be levied on the taxable turnover at such rates as the State Government may direct. Tax is payable under the Act in the manner provided and at such intervals as may be prescribed. Section 10 (1). A registered dealer furnishing a return has to pay the amount of tax due according to the return into the Government Treasury.4. The assessing authority may without requiring the presence of the registered dealer or production by him of any evidence hold that the returns furnished are correct and complete, and proceed to assess the amount of tax due from the dealer on the basis of these returns; if the assessing authority is not satisfied with the return he may require the registered dealer to remain present in person or by pleader and to produce evidence on which he may rely upon in support of the return. The Assessing authority may after hearing the evidence as the dealer may produce and such other evidence the Assessing authority may require, assess the amount of tax due from the dealer.5. The scheme is plain. A registered dealer must file return of the turnover in the manner prescribed and at such intervals as may be prescribed. The dealer while submitting the return has also to pay tax according to the return. The Assessing Officer may accept the return or he may call upon the tax payer to explain the turnover, and support it by evidence.6. Under the Act sales-tax is an yearly tax, but the provisions relating to assessment contemplate assessments for periods shorter than a complete year, and for that purpose the tax payers are required by the Act to submit periodical returns of their turnover and to pay tax due thereon.7. In (1964) 15STC 857 (Punj) a Division Bench of the Punjab High Court held that the tax imposed under the Punjab Sales Tax Act may be assessed only at the end of the year and not during the pendency of the year as and when the return is filed, and in the absence of machinery in the Act for making assessment for a period shorter than the year of assessment, the order of assessment of tax for a quarter before the expiry of the assessment year is illegal. In reaching that conclusion the High Court relied upon the Judgment of this Court in M/s. Mathra Parshad and Sons v. State of Punjab, (1962) Suppl (1) SCR 913 = (AIR 1962 SC 745 ). But in Mathra Parshads case (1962) Supp (1) SCR 913 = (AIR 1962 SC 745 ) this Court considered whether an exemption granted by the State Government during the course of the year was applicable to the whole or only a part of the year of assessment. This Court held (Mr. Justice Kapur dissenting) that the exemption operated for the entire financial year. The Court observed that the tax was an yearly tax levied on the taxable turnover of a dealer for the year; it was collected in some cases quarterly, some cases yearly and proceeded to hold that whenever the exemption came in, in the year for which the tax was payable, it exempted sales throughout the year unless notification fixed the date of commencement of the tax. In our judgment the principal of that case has no bearing on the question arising in this case. The Court in Mathra Parshads case, 1962 Supp (1) SCR 913 = (AIR 1962 SC 745 ) merely emphasised that the tax was an annual tax but that did not imply that assessment of tax quarterly was illegal. Adjustment may possibly have to be made when the assessment of the final quarter is made, but the taxing authorities are not debarred from determining and assessing the quarterly turnover of tax. Mansa Rams case, (1964) 15 STC 857 (Punj) has since been overruled by a Full Bench of the Punjab High Court in Om Prakash Rajinder Kumar v. K. K. Opal, ILR (1967) 1 Punj 115 = (AIR 1967 Punj 464) (FB). The Court in that case held that Sales tax may be assessed under Section 11 of the Act on the basis of quarterly returns submitted by the dealer pursuant to the notice served on him under Section 10 (3) before the close of the relevant financial year.
### Response:
1
### Explanation:
5. The scheme is plain. A registered dealer must file return of the turnover in the manner prescribed and at such intervals as may be prescribed. The dealer while submitting the return has also to pay tax according to the return. The Assessing Officer may accept the return or he may call upon the tax payer to explain the turnover, and support it by evidence.6. Under the Act sales-tax is an yearly tax, but the provisions relating to assessment contemplate assessments for periods shorter than a complete year, and for that purpose the tax payers are required by the Act to submit periodical returns of their turnover and to pay tax duereaching that conclusion the High Court relied upon the Judgment of this Court in M/s. Mathra Parshad and Sons v. State of Punjab, (1962) Suppl (1) SCR 913 = (AIR 1962 SC 745 ). But in Mathra Parshads case (1962) Supp (1) SCR 913 = (AIR 1962 SC 745 ) this Court considered whether an exemption granted by the State Government during the course of the year was applicable to the whole or only a part of the year of assessment. This Court held (Mr. Justice Kapur dissenting) that the exemption operated for the entire financial year. The Court observed that the tax was an yearly tax levied on the taxable turnover of a dealer for the year; it was collected in some cases quarterly, some cases yearly and proceeded to hold that whenever the exemption came in, in the year for which the tax was payable, it exempted sales throughout the year unless notification fixed the date of commencement of the tax. In our judgment the principal of that case has no bearing on the question arising in this case. The Court in Mathra Parshads case, 1962 Supp (1) SCR 913 = (AIR 1962 SC 745 ) merely emphasised that the tax was an annual tax but that did not imply that assessment of tax quarterly was illegal. Adjustment may possibly have to be made when the assessment of the final quarter is made, but the taxing authorities are not debarred from determining and assessing the quarterly turnover of tax. Mansa Rams case, (1964) 15 STC 857 (Punj) has since been overruled by a Full Bench of the Punjab High Court in Om Prakash Rajinder Kumar v. K. K. Opal, ILR (1967) 1 Punj 115 = (AIR 1967 Punj 464) (FB). The Court in that case held that Sales tax may be assessed under Section 11 of the Act on the basis of quarterly returns submitted by the dealer pursuant to the notice served on him under Section 10 (3) before the close of the relevant financial year.
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National Aluminium Co.Ltd Vs. Ananta Kishore Rout | of job done by those employees etc. is entirely different from the employees of these schools. This aspect is squarely dealt with in the case of SC Chandra & Ors. (supra) where the plea for parity in employment was rejected thereby refusing to give parity in salary claim by school teachers with class working under Government of Jharkhand and BCCL. The discussion which ensued, while rejecting such a claim, is recapitulated hereunder in the majority opinion authored by A.K. Mathur, J.: “20. After going through the order of the Division Bench we are of opinion that the view taken by the Division Bench of the High Court is correct. Firstly, the school is not being managed by BCCL as from the facts it is more than clear that BCCL was only extending financial assistance from time to time. By that it cannot be saddled with the liability to pay these teachers of the school as being paid to the clerks working with BCCL or in the Government of Jharkhand. It is essentially a school managed by a body independent of the management of BCCL. Therefore, BCCL cannot be saddled with the responsibilities of granting the teachers the salaries equated to that of the clerks working in BCCL.21. Learned counsel for the appellants have relied on Article 39(d) of the Constitution. Article 39(d) does not mean that all the teachers working in the school should be equated with the clerks in BCCL or the Government of Jharkhand for application of the principle of equal pay for equal work. There should be total identity between both groups i.e. the teachers of the school on the one hand and the clerks in BCCL, and as such the teachers cannot be educated with the clerks of the State Government or of BCCL. The question of application of Article 39(d) of the Constitution has recently been interpreted by this Court in State of Haryana v. Charanjit Singh wherein Their Lordships have put the entire controversy to rest and held that the principle, equal pay for equal work must satisfy the test that the incumbents are performing equal and identical work as discharged by employees against whom the equal pay is claimed. Their Lordships have reviewed all the cases bearing on the subject and after a detailed discussion have finally put the controversy to rest that the persons who claimed the parity should satisfy the court that the conditions are identical and equal and same duties are being discharged by them. Though a number of cases were cited for our consideration but no useful purpose will be served as in Charanjit Singh all these cases have been reviewed by this Court. More so, when we have already held that the appellants are not the employees of BCCL, there is no question seeking any parity of the pay with that of the clerks of BCCL.” MarkandeyKatju, J in his concurring and supplementing judgment dwelt on this very aspect in the following manner:- “24. The principle of equal pay for equal work was propounded by this Court in certain decisions in the 1980s e.g. Dhirendra Chamoli v. State of U.P., Surinder Singh v. Engineer-in-Chief, CPWD, Randhir Singh v. Union of India, etc. This was done by applying Articles 14 and 39(d) of the Constitution. Thus, in Dhirendra Chamoli case this Court granted to the casual, daily rated employees the same pay scale as regular employees.25. It appears that subsequently it was realised that the application of the principle of equal pay for equal work was creating havoc. All over India different groups were claiming parity in pay with other groups e.g. Government employees of one State were claiming parity with Government employees of another State.26. Fixation of pay scale is a delicate mechanism which requires various considerations including financial capacity, responsibility, educational qualification, mode of appointment, etc. and it has a cascading effect. Hence, in subsequent decisions of this Court the principle of equal pay for equal work has been considerably watered down, and it has hardly ever been applied by this court in recent years.27. Thus, in State of Haryanan v. Tilak Raj it was held that the principle can only apply if there is complete and wholesale identity between the two groups. Even if the employees in the two groups are doing identical work they cannot be granted equal pay if there is no complete and wholesale identity e.g. a daily rated employee may be doing the same work as a regular employee, yet he cannot be granted the same pay scale. Similarly, two groups of employees may be doing the same work, yet they may be given different pay scales if the educational qualifications are different. Also, pay scale can be different if the nature of jobs, responsibilities, experience, method of recruitment, etc. are different.28. In State of Haryana v. Charanjit Singh discussing a large number of earlier decisions it was held by a three Judge Bench of this Court that the principle of equal pay for equal work cannot apply unless there is complete and wholesale identity between the two groups. Moreover, even for finding out whether there is complete and wholesale identity, the proper forum is an expert body and not the writ court, as this requires extensive evidence. A mechanical interpretation of the principle of equal pay for equal work creates great practical difficulties. Hence in recent decisions the Supreme Court has considerably watered down the principle of equal pay for equal work and this principle has hardly been ever applied in recent decisions.” 34. We say at the cost of repetition that there is no parity in the nature of work, mode of appointment, experience, educational qualifications between the NALCO employees and the employees of the two schools. In fact, such a comparison can be made with their counter parts in the Government schools and/or aided or unaided schools. On that parameter, there cannot be any grievance of the staff which is getting better emoluments and enjoying far superior service conditions. | 1[ds]34. We say at the cost of repetition that there is no parity in the nature of work, mode of appointment, experience, educational qualifications between the NALCO employees and the employees of the two schools. In fact, such a comparison can be made with their counter parts in the Government schools and/or aided or unaided schools. On that parameter, there cannot be any grievance of the staff which is getting better emoluments and enjoying far superior service | 1 | 8,628 | 90 | ### 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:
of job done by those employees etc. is entirely different from the employees of these schools. This aspect is squarely dealt with in the case of SC Chandra & Ors. (supra) where the plea for parity in employment was rejected thereby refusing to give parity in salary claim by school teachers with class working under Government of Jharkhand and BCCL. The discussion which ensued, while rejecting such a claim, is recapitulated hereunder in the majority opinion authored by A.K. Mathur, J.: “20. After going through the order of the Division Bench we are of opinion that the view taken by the Division Bench of the High Court is correct. Firstly, the school is not being managed by BCCL as from the facts it is more than clear that BCCL was only extending financial assistance from time to time. By that it cannot be saddled with the liability to pay these teachers of the school as being paid to the clerks working with BCCL or in the Government of Jharkhand. It is essentially a school managed by a body independent of the management of BCCL. Therefore, BCCL cannot be saddled with the responsibilities of granting the teachers the salaries equated to that of the clerks working in BCCL.21. Learned counsel for the appellants have relied on Article 39(d) of the Constitution. Article 39(d) does not mean that all the teachers working in the school should be equated with the clerks in BCCL or the Government of Jharkhand for application of the principle of equal pay for equal work. There should be total identity between both groups i.e. the teachers of the school on the one hand and the clerks in BCCL, and as such the teachers cannot be educated with the clerks of the State Government or of BCCL. The question of application of Article 39(d) of the Constitution has recently been interpreted by this Court in State of Haryana v. Charanjit Singh wherein Their Lordships have put the entire controversy to rest and held that the principle, equal pay for equal work must satisfy the test that the incumbents are performing equal and identical work as discharged by employees against whom the equal pay is claimed. Their Lordships have reviewed all the cases bearing on the subject and after a detailed discussion have finally put the controversy to rest that the persons who claimed the parity should satisfy the court that the conditions are identical and equal and same duties are being discharged by them. Though a number of cases were cited for our consideration but no useful purpose will be served as in Charanjit Singh all these cases have been reviewed by this Court. More so, when we have already held that the appellants are not the employees of BCCL, there is no question seeking any parity of the pay with that of the clerks of BCCL.” MarkandeyKatju, J in his concurring and supplementing judgment dwelt on this very aspect in the following manner:- “24. The principle of equal pay for equal work was propounded by this Court in certain decisions in the 1980s e.g. Dhirendra Chamoli v. State of U.P., Surinder Singh v. Engineer-in-Chief, CPWD, Randhir Singh v. Union of India, etc. This was done by applying Articles 14 and 39(d) of the Constitution. Thus, in Dhirendra Chamoli case this Court granted to the casual, daily rated employees the same pay scale as regular employees.25. It appears that subsequently it was realised that the application of the principle of equal pay for equal work was creating havoc. All over India different groups were claiming parity in pay with other groups e.g. Government employees of one State were claiming parity with Government employees of another State.26. Fixation of pay scale is a delicate mechanism which requires various considerations including financial capacity, responsibility, educational qualification, mode of appointment, etc. and it has a cascading effect. Hence, in subsequent decisions of this Court the principle of equal pay for equal work has been considerably watered down, and it has hardly ever been applied by this court in recent years.27. Thus, in State of Haryanan v. Tilak Raj it was held that the principle can only apply if there is complete and wholesale identity between the two groups. Even if the employees in the two groups are doing identical work they cannot be granted equal pay if there is no complete and wholesale identity e.g. a daily rated employee may be doing the same work as a regular employee, yet he cannot be granted the same pay scale. Similarly, two groups of employees may be doing the same work, yet they may be given different pay scales if the educational qualifications are different. Also, pay scale can be different if the nature of jobs, responsibilities, experience, method of recruitment, etc. are different.28. In State of Haryana v. Charanjit Singh discussing a large number of earlier decisions it was held by a three Judge Bench of this Court that the principle of equal pay for equal work cannot apply unless there is complete and wholesale identity between the two groups. Moreover, even for finding out whether there is complete and wholesale identity, the proper forum is an expert body and not the writ court, as this requires extensive evidence. A mechanical interpretation of the principle of equal pay for equal work creates great practical difficulties. Hence in recent decisions the Supreme Court has considerably watered down the principle of equal pay for equal work and this principle has hardly been ever applied in recent decisions.” 34. We say at the cost of repetition that there is no parity in the nature of work, mode of appointment, experience, educational qualifications between the NALCO employees and the employees of the two schools. In fact, such a comparison can be made with their counter parts in the Government schools and/or aided or unaided schools. On that parameter, there cannot be any grievance of the staff which is getting better emoluments and enjoying far superior service conditions.
### Response:
1
### Explanation:
34. We say at the cost of repetition that there is no parity in the nature of work, mode of appointment, experience, educational qualifications between the NALCO employees and the employees of the two schools. In fact, such a comparison can be made with their counter parts in the Government schools and/or aided or unaided schools. On that parameter, there cannot be any grievance of the staff which is getting better emoluments and enjoying far superior service
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Bhatia Coal Washeries Limited Indore, Thr. Auth. Signatory Dilip S/O Ganpatrao Wasnik Vs. Maharashtra State Mining Corporation Limited Nagpur and Others | raw coal directly from the collieries, cannot be the ground. It is further the stand taken that apart from the power plants, some industries and iron and steel plants also require large quantities of washed coal for production of cement and steel, which are used in power project.28. In our view, there are disputed questions of fact. The grounds of challenges to the technical requirement of requisite experience, cannot be substantiated on the basis of the disputed questions of fact in a writ jurisdiction. We, therefore, do not find substance in the justification putforth by the petitioner.29. We would like to note the decision of the Apex Court in the case of Directorate of Education and others v. Educomp Datamatics Ltd. and others, reported in (2004) 4 SCC 19 , in which the cost of project of establishing computer labs in the National Capital Territory area in all government schools was approximately Rs.100 crores. On several occasions, the tenders were invited from the firms having a turnover of Rs.2 crores, Rs.5 crores, and Rs.30 crores, but the difficulties were faced and the tenders were cancelled and ultimately the contract was required to be distributed amongst eight parties. In view of the fact that the lowest tenderer was not able to take up the entire project, the Government took a policy decision to deal with one company having a financial capacity to take up such a project instead of dealing with number of small companies which were able to take up the entire project individually. The decision was taken to invite tenders from the firms having a turnover of Rs.20 crores or more for the last three financial years, ending with 31-3-2002.30. In a challenge to the aforesaid condition, the High Court struck down the offending clause as being arbitrary and irrational. It was held that the condition was incorporated solely with an intent to deprive a large number of companies imparting computer education from bidding and to monopolize the same for big companies. The Apex Court allowed the appeal and set aside the decision of the High Court.31. In the aforesaid decision, the Apex Court has held in Para 12 as under :12. It has clearly been held in these decisions that the terms of the invitation to tender are not open to judicial scrutiny, the same being in the realm of contract. That the Government must have a free hand in setting the terms of the tender. It must have reasonable play in its joints as a necessary concomitant for an administrative body in an administrative sphere. The courts would interfere with the administrative policy decision only if it is arbitrary, discriminatory, mala fide or actuated by bias. It is entitled to pragmatic adjustments which may be called for by the particular circumstances. The courts cannot strike down the terms of the tender prescribed by the Government because it feels that some other terms in the tender would have been fair, wiser or logical. The courts can interfere only if the policy decision is arbitrary, discriminatory or mala fide.In Para 13, it is held as under :13. ...As a matter of policy the Government took a conscious decision to deal with one firm having financial capacity to take up such a big project instead of dealing with multiple small companies which is a relevant consideration while awarding such a big project. Moreover, it was for the authority to set the terms of the tender. The courts would not interfere with the terms of the tender notice unless it was shown to be either arbitrary or discriminatory or actuated by malice. While exercising the power of judicial review of the terms of the tender notice the court cannot say that the terms of the earlier tender notice would serve the purpose sought to be achieved better than the terms of tender notice under consideration and order change in them, unless it is of the opinion that the terms were either arbitrary or discriminatory or actuated by malice. The provision of the terms inviting tenders from firms having a turnover of more than Rs.20 crores has not been shown to be either arbitrary or discriminatory or actuated by malice.32. Keeping in view the aforesaid law laid down by the Apex Court, it has to be held that if a conscious policy decision is taken to deal with one firm having financial capacity to take up such a big project instead of dealing with multiple small companies, there is no malice involved in it and the conditions incorporated cannot be said to be arbitrary or discriminatory. It has to be kept in mind that the party calling for tenders is entitled to pragmatic adjustments which may be called by the particular circumstances. We have seen such circumstances existing in the present case indicating that the respondent No.2- MAHAGENCO has always been unsuccessful in getting the regular, continuous and uninterrupted supply of quality coal, as a result of which there were problems of pollution in the environment and shutting down the power units for want of smooth, regular and uninterrupted supply of coal.33. Once we hold that there is no substance in the challenge to the essential conditions of minimum qualifying technical requirements contained in sub-clauses (4) and (5) of Clauses 1.5.2(A) and 1.5.2(B) of the tender document, there is no occasion for us to proceed further in the matter to consider the other challenges on merits. The petitioner is out of competition in response to the tender in question and, therefore, we cannot judge the validity of the other conditions in the tender document, as are urged by Shri Subodh Dharmadhikari, the learned Senior Advocate for the petitioner, as it would merely be an academic discussion and our final decision would not alter, even if we hold those conditions to be arbitrary or unreasonable. We do not find any allegation of factual malice or favouritism even if ultimately the contract is awarded to the respondent Nos.4 and 5 or some other competitors. | 0[ds]14. The petitioner does not satisfy the technical criteria specified under Clause 1.5.2(B)(4) and (5) for Category B bidder. The petitioner has not executed the work of lifting and beneficiation of an average quantity of 3.00 million metric ton per annum of RoM Coal and supply of beneficiation coal (washed coal) in the last three financial years - 2016-17, 2017-18, and 2018-19 to any State Electricity Board, Central Government-owned Company, State-owned Company or Independent Power Producer. The petitioner does not satisfy the financial criteria for Category B bidder under Clause 1.5.3(B), i.e. as on 31-3-2019, the bidder should have a net worth of at least Indian Rs.240 crores and a turnover of at least Indian Rs.450 crores.So far as Category A bidder is concerned, the petitioner does not satisfy the technical criteria under Clause 1.5.2(A)(4) and (5). The petitioner has not executed the work of lifting and beneficiation of an average quantity of 1.50 million metric ton per annum of RoM Coal and supply of beneficiation coal (washed coal) in the last three financial years – 2016-17, 2017-18 and 2018-19 to any State Electricity Board, Central Government-owned Company, Stateowned Company or Independent Power Producer. The petitioner also does not satisfy the technical criteria under Note 2 of Clause 1.5.2(A) to satisfy that it has a minimum installed capacity of 2.00 million metric ton per annum washery in any of the three subsidiaries. The petitioner does not satisfy the financial criteria for Category A bidder, as specified in Clause 1.5.3(A), i.e. as on 31-3-2019, the bidder should have a net worth of at least Indian Rs.85 crores and a turnover of at least Indian Rs.140do not propose to refer to all such arguments and the documents placed on record in support of suchalso do not wish to refer to those documents in detail, as we are of the view that the petition can be decided on merits on a very short ground.It is an undisputed position that the petitioner does not satisfy the minimum qualifying technical criteria mentioned in sub-clauses (4) and (5) of Clause 1.5.2(A) for Category A bidder, and Clause 1.5.2(B) for Category B bidder. The conditions are of having executed the work of lifting and beneficiation of an average quantity of 1.50 or 3.00 million metric tone per annum of RoM Coal and supply of beneficiation coal (washed coal) in the last three financial years - 2016-17, 2017-18 and 2018-19 to any State Electricity Board, Central Government-owned Company, State-owned Company or Independent Power Producer.In our view, merely because the petitioner does not fulfill or satisfy the essential minimum qualifying technical criteria of requisite experience specified in sub-clauses (4) and (5) of Clauses 1.5.2(A) and 1.5.2(B) of the tender document, and stands eliminated from the competition, neither the said condition becomes unreasonable, unjust or arbitrary, nor the petitioner gets any right to challenge it. What we find is that these conditions are incorporated to ensure that the washeries available with the bidders are in good running condition and able to effectively and continuously achieve the target required. The condition of having past experience of three years proximate to the period of contract in question, is to judge the capacity and efficiency of the bidders. The conditions have, therefore, reasonable nexus with the award of contract to have smooth, efficient, regular, continuous, uninterrupted and timely supply of quality coal to various Thermal Power Stations. All those who do not satisfy would obviously and naturally stand eliminated. In such a case, there would be no question of artificial distinction and the conditions cannot per se be considered as arbitrary and unreasonable.In our view, there are disputed questions of fact. The grounds of challenges to the technical requirement of requisite experience, cannot be substantiated on the basis of the disputed questions of fact in a writ jurisdiction. We, therefore, do not find substance in the justification putforth by the petitioner.Keeping in view the aforesaid law laid down by the Apex Court, it has to be held that if a conscious policy decision is taken to deal with one firm having financial capacity to take up such a big project instead of dealing with multiple small companies, there is no malice involved in it and the conditions incorporated cannot be said to be arbitrary or discriminatory. It has to be kept in mind that the party calling for tenders is entitled to pragmatic adjustments which may be called by the particular circumstances. We have seen such circumstances existing in the present case indicating that the respondent No.2- MAHAGENCO has always been unsuccessful in getting the regular, continuous and uninterrupted supply of quality coal, as a result of which there were problems of pollution in the environment and shutting down the power units for want of smooth, regular and uninterrupted supply of coal.Once we hold that there is no substance in the challenge to the essential conditions of minimum qualifying technical requirements contained in sub-clauses (4) and (5) of Clauses 1.5.2(A) and 1.5.2(B) of the tender document, there is no occasion for us to proceed further in the matter to consider the other challenges on merits. The petitioner is out of competition in response to the tender in question and, therefore, we cannot judge the validity of the other conditions in the tender document, as are urged by Shri Subodh Dharmadhikari, the learned Senior Advocate for the petitioner, as it would merely be an academic discussion and our final decision would not alter, even if we hold those conditions to be arbitrary or unreasonable. We do not find any allegation of factual malice or favouritism even if ultimately the contract is awarded to the respondent Nos.4 and 5 or some other competitors. | 0 | 5,903 | 1,085 | ### 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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raw coal directly from the collieries, cannot be the ground. It is further the stand taken that apart from the power plants, some industries and iron and steel plants also require large quantities of washed coal for production of cement and steel, which are used in power project.28. In our view, there are disputed questions of fact. The grounds of challenges to the technical requirement of requisite experience, cannot be substantiated on the basis of the disputed questions of fact in a writ jurisdiction. We, therefore, do not find substance in the justification putforth by the petitioner.29. We would like to note the decision of the Apex Court in the case of Directorate of Education and others v. Educomp Datamatics Ltd. and others, reported in (2004) 4 SCC 19 , in which the cost of project of establishing computer labs in the National Capital Territory area in all government schools was approximately Rs.100 crores. On several occasions, the tenders were invited from the firms having a turnover of Rs.2 crores, Rs.5 crores, and Rs.30 crores, but the difficulties were faced and the tenders were cancelled and ultimately the contract was required to be distributed amongst eight parties. In view of the fact that the lowest tenderer was not able to take up the entire project, the Government took a policy decision to deal with one company having a financial capacity to take up such a project instead of dealing with number of small companies which were able to take up the entire project individually. The decision was taken to invite tenders from the firms having a turnover of Rs.20 crores or more for the last three financial years, ending with 31-3-2002.30. In a challenge to the aforesaid condition, the High Court struck down the offending clause as being arbitrary and irrational. It was held that the condition was incorporated solely with an intent to deprive a large number of companies imparting computer education from bidding and to monopolize the same for big companies. The Apex Court allowed the appeal and set aside the decision of the High Court.31. In the aforesaid decision, the Apex Court has held in Para 12 as under :12. It has clearly been held in these decisions that the terms of the invitation to tender are not open to judicial scrutiny, the same being in the realm of contract. That the Government must have a free hand in setting the terms of the tender. It must have reasonable play in its joints as a necessary concomitant for an administrative body in an administrative sphere. The courts would interfere with the administrative policy decision only if it is arbitrary, discriminatory, mala fide or actuated by bias. It is entitled to pragmatic adjustments which may be called for by the particular circumstances. The courts cannot strike down the terms of the tender prescribed by the Government because it feels that some other terms in the tender would have been fair, wiser or logical. The courts can interfere only if the policy decision is arbitrary, discriminatory or mala fide.In Para 13, it is held as under :13. ...As a matter of policy the Government took a conscious decision to deal with one firm having financial capacity to take up such a big project instead of dealing with multiple small companies which is a relevant consideration while awarding such a big project. Moreover, it was for the authority to set the terms of the tender. The courts would not interfere with the terms of the tender notice unless it was shown to be either arbitrary or discriminatory or actuated by malice. While exercising the power of judicial review of the terms of the tender notice the court cannot say that the terms of the earlier tender notice would serve the purpose sought to be achieved better than the terms of tender notice under consideration and order change in them, unless it is of the opinion that the terms were either arbitrary or discriminatory or actuated by malice. The provision of the terms inviting tenders from firms having a turnover of more than Rs.20 crores has not been shown to be either arbitrary or discriminatory or actuated by malice.32. Keeping in view the aforesaid law laid down by the Apex Court, it has to be held that if a conscious policy decision is taken to deal with one firm having financial capacity to take up such a big project instead of dealing with multiple small companies, there is no malice involved in it and the conditions incorporated cannot be said to be arbitrary or discriminatory. It has to be kept in mind that the party calling for tenders is entitled to pragmatic adjustments which may be called by the particular circumstances. We have seen such circumstances existing in the present case indicating that the respondent No.2- MAHAGENCO has always been unsuccessful in getting the regular, continuous and uninterrupted supply of quality coal, as a result of which there were problems of pollution in the environment and shutting down the power units for want of smooth, regular and uninterrupted supply of coal.33. Once we hold that there is no substance in the challenge to the essential conditions of minimum qualifying technical requirements contained in sub-clauses (4) and (5) of Clauses 1.5.2(A) and 1.5.2(B) of the tender document, there is no occasion for us to proceed further in the matter to consider the other challenges on merits. The petitioner is out of competition in response to the tender in question and, therefore, we cannot judge the validity of the other conditions in the tender document, as are urged by Shri Subodh Dharmadhikari, the learned Senior Advocate for the petitioner, as it would merely be an academic discussion and our final decision would not alter, even if we hold those conditions to be arbitrary or unreasonable. We do not find any allegation of factual malice or favouritism even if ultimately the contract is awarded to the respondent Nos.4 and 5 or some other competitors.
### Response:
0
### Explanation:
14. The petitioner does not satisfy the technical criteria specified under Clause 1.5.2(B)(4) and (5) for Category B bidder. The petitioner has not executed the work of lifting and beneficiation of an average quantity of 3.00 million metric ton per annum of RoM Coal and supply of beneficiation coal (washed coal) in the last three financial years - 2016-17, 2017-18, and 2018-19 to any State Electricity Board, Central Government-owned Company, State-owned Company or Independent Power Producer. The petitioner does not satisfy the financial criteria for Category B bidder under Clause 1.5.3(B), i.e. as on 31-3-2019, the bidder should have a net worth of at least Indian Rs.240 crores and a turnover of at least Indian Rs.450 crores.So far as Category A bidder is concerned, the petitioner does not satisfy the technical criteria under Clause 1.5.2(A)(4) and (5). The petitioner has not executed the work of lifting and beneficiation of an average quantity of 1.50 million metric ton per annum of RoM Coal and supply of beneficiation coal (washed coal) in the last three financial years – 2016-17, 2017-18 and 2018-19 to any State Electricity Board, Central Government-owned Company, Stateowned Company or Independent Power Producer. The petitioner also does not satisfy the technical criteria under Note 2 of Clause 1.5.2(A) to satisfy that it has a minimum installed capacity of 2.00 million metric ton per annum washery in any of the three subsidiaries. The petitioner does not satisfy the financial criteria for Category A bidder, as specified in Clause 1.5.3(A), i.e. as on 31-3-2019, the bidder should have a net worth of at least Indian Rs.85 crores and a turnover of at least Indian Rs.140do not propose to refer to all such arguments and the documents placed on record in support of suchalso do not wish to refer to those documents in detail, as we are of the view that the petition can be decided on merits on a very short ground.It is an undisputed position that the petitioner does not satisfy the minimum qualifying technical criteria mentioned in sub-clauses (4) and (5) of Clause 1.5.2(A) for Category A bidder, and Clause 1.5.2(B) for Category B bidder. The conditions are of having executed the work of lifting and beneficiation of an average quantity of 1.50 or 3.00 million metric tone per annum of RoM Coal and supply of beneficiation coal (washed coal) in the last three financial years - 2016-17, 2017-18 and 2018-19 to any State Electricity Board, Central Government-owned Company, State-owned Company or Independent Power Producer.In our view, merely because the petitioner does not fulfill or satisfy the essential minimum qualifying technical criteria of requisite experience specified in sub-clauses (4) and (5) of Clauses 1.5.2(A) and 1.5.2(B) of the tender document, and stands eliminated from the competition, neither the said condition becomes unreasonable, unjust or arbitrary, nor the petitioner gets any right to challenge it. What we find is that these conditions are incorporated to ensure that the washeries available with the bidders are in good running condition and able to effectively and continuously achieve the target required. The condition of having past experience of three years proximate to the period of contract in question, is to judge the capacity and efficiency of the bidders. The conditions have, therefore, reasonable nexus with the award of contract to have smooth, efficient, regular, continuous, uninterrupted and timely supply of quality coal to various Thermal Power Stations. All those who do not satisfy would obviously and naturally stand eliminated. In such a case, there would be no question of artificial distinction and the conditions cannot per se be considered as arbitrary and unreasonable.In our view, there are disputed questions of fact. The grounds of challenges to the technical requirement of requisite experience, cannot be substantiated on the basis of the disputed questions of fact in a writ jurisdiction. We, therefore, do not find substance in the justification putforth by the petitioner.Keeping in view the aforesaid law laid down by the Apex Court, it has to be held that if a conscious policy decision is taken to deal with one firm having financial capacity to take up such a big project instead of dealing with multiple small companies, there is no malice involved in it and the conditions incorporated cannot be said to be arbitrary or discriminatory. It has to be kept in mind that the party calling for tenders is entitled to pragmatic adjustments which may be called by the particular circumstances. We have seen such circumstances existing in the present case indicating that the respondent No.2- MAHAGENCO has always been unsuccessful in getting the regular, continuous and uninterrupted supply of quality coal, as a result of which there were problems of pollution in the environment and shutting down the power units for want of smooth, regular and uninterrupted supply of coal.Once we hold that there is no substance in the challenge to the essential conditions of minimum qualifying technical requirements contained in sub-clauses (4) and (5) of Clauses 1.5.2(A) and 1.5.2(B) of the tender document, there is no occasion for us to proceed further in the matter to consider the other challenges on merits. The petitioner is out of competition in response to the tender in question and, therefore, we cannot judge the validity of the other conditions in the tender document, as are urged by Shri Subodh Dharmadhikari, the learned Senior Advocate for the petitioner, as it would merely be an academic discussion and our final decision would not alter, even if we hold those conditions to be arbitrary or unreasonable. We do not find any allegation of factual malice or favouritism even if ultimately the contract is awarded to the respondent Nos.4 and 5 or some other competitors.
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